The Comptroller has exclusive authority to determine the validity of a beneficiary designation on an application for death benefits, which determination must be supported by substantial evidence

The Comptroller has exclusive authority to determine the validity of a beneficiary designation on an application for death benefits, which determination must be supported by substantial evidence
Close v Nitido, 2016 NY Slip Op 00407, Appellate Division, Third Department

Eric M. Close’s father, William Close [Decedent], died in January 2012. Decedent's mother, Peggy Eythe, was listed as his primary beneficiary on the last designation of beneficiary form filed with the New York State Employees' Retirement System, [ERS] dated November 17, 2011. On a previous designation of beneficiary form, dated July 26, 2010, Close was listed as Decedent's primary beneficiary. After Decedent's death and upon being informed that he was no longer a primary beneficiary of Decedent's death benefits, Close filed an application for Decedent’s death benefits with ERS and requested an investigation and a hearing into whether Eythe submitted a fraudulent designation of beneficiary form.

ERS informed Close that its records indicated that Decedent had submitted a notarized change of beneficiary form and that payment would be made in accordance with the last valid designation.

At the administrative hearing Close indicated that “despite his knowledge that Decedent had been diagnosed with stage four cancer, [he] had not visited Decedent — who lived in the same state and sometimes the same city — for approximately five months leading up to Decedent's death. Among the reasons given by Close “for his lack of consistent contact with Decedent prior to Decedent's death” was that he was busy "trying to inherit [an] apartment" from his recently deceased grandmother.

In contrast, as the Appellate Division’s decision notes, Eythe, the primary beneficiary of the 2011 designation of beneficiary form filed with ERS, had moved in with Decedent to help care for him. Further, although Close’s handwriting expert opined that the signature on the 2011 designation of beneficiary form was forged, Decedent’s attorney testified to the contrary, stating that he had witnessed Decedent sign the 2011 change of beneficiary form and that he then notarized that form for the Decedent.

The Hearing Officer found that Close's testimony and the testimony of his witnesses were less credible than the witnesses called by ERS and determined that Close had failed to meet his burden of establishing that the 2011 designation was invalid. The Comptroller accepted in its entirety the Hearing Officer's determination and, as a result, denied Close's application for designation as the beneficiary of Decedent’s death benefits.

Close initiated Article 78 proceeding challenging Comptroller's determination and Supreme Court, finding there was an issue of substantial evidence present, transferred the action to the Appellate Division.

Initially Appellate Division explained that [1] the Comptroller has exclusive authority to determine the validity of beneficiary designations on applications for death benefits, and each such  determination must be supported by substantial evidence and [2] an individual challenging the Comptroller's determination had the burden of proving that the beneficiary designation accepted by the Comptroller was invalid.

Given the eyewitness testimony regarding validity of Decedent's signature on the 2011 designation form, the Appellate Division said that there was “compelling evidence” explaining Decedent's motivation for changing his beneficiary from Close to Eythe and, giving due deference to the Comptroller’s credibility determinations, found that substantial evidence supported the Comptroller decision.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00407.htm

OATH Administrative Law Judge recommended dismissal of disciplinary charges after finding supervisors’ testimony was unsupported by reliable documentary evidence

OATH Administrative Law Judge recommended dismissal of disciplinary charges after finding supervisors’ testimony unsupported by reliable documentary evidence

OATH Index No. 195/16

The Department of Environmental Protection charged the employee, a city research scientist, with failing to perform the duties of his job satisfactorily. The Department presented the testimony of employee's supervisors, as well as employee's work performance evaluations.

The employee testified that after filing an Equal Employment and Opportunity complaint against one of his supervisors, he had been treated unfairly and his supervisors rated his work performance as unsatisfactory.

OATH Administrative Law Judge Alessandra F. Zorgniotti found that the testimony of the supervisors was unsupported by reliable documentary evidence and thus was not objective proof that employee was unable to meet the minimally acceptable threshold requirements with respect to performing the duties of his position satisfactorily.

Judge Zorgniotti recommended that the charges be dismissed.   

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-195.pdf

Where disclosure is not barred by statute, claims of “unwarranted invasion of personal privacy" are resolved by a court weighing "privacy interests" against the public's interest in the information

Where disclosure is not barred by statute, claims of  “unwarranted invasion of personal privacy" are resolved by a court weighing "privacy interests" against the public's interest in the information
Sell v New York City Dept. of Educ., 2016 NY Slip Op 00425, Appellate Division, First Department

Peter Sell sought the records of an investigation by the New York City Department of Education [DOE] Office of Special Investigations [OSI] into a complaint he filed alleging that school administrators had improperly influenced the re-scoring of a Regents Examination with the intent of improving the number of students who passed "with distinction." DOE denied Sell’s request, citing the statutory exemptions from disclosure of unwarranted invasion of privacy and inter- or intra-agency materials set out in Public Officers Law §87[2][b], [g].

Supreme Court ordered the records in question produced for an in camera* inspection by the court and subsequently directed DOE to disclose the investigative file concerning “Office of Special Investigation Case 08-4247” except for certain pages, with any Social Security numbers redacted from such files. The DOE appealed the court’s ruling.

The Appellate Division unanimously sustained the Supreme Court’s decision after excepting from disclosure certain additional pages or portions of pages it identified in its decision, explaining that the lower court had “properly directed the disclosure of some portions of these records, notwithstanding  OSI's finding the complaint “unsubstantiated."

As DOE had conceded that none of the statutorily enumerated categories of "unwarranted invasion of personal privacy" were relevant in this action, the Appellate Division said it must determine, "by balancing the privacy interests at stake against the public interest in disclosure of the information," whether any invasion of privacy is unwarranted.

The court said that it found that “there is significant public interest in the proper academic assessment of public school students and therefore in the requested materials, which may shed light on the adequacy of OSI's investigation into the allegedly improperly influenced assessment in this case.” Further, the Appellate Division said the DOE had failed to establish that this significant public interest is outweighed by the privacy interests of those involved. 

Contrary to DOE's argument, the court found that there was no indication in the record that any interviewees were promised confidentiality, explicitly or implicitly. Rather, said the court “all contact information other than the interviewees' names and official titles (such as identification numbers, home addresses, phone numbers, and dates of birth) should be redacted,” noting that Sell had specifically clarified in his administrative appeal that he did not seek that information.

As to the statutory exemption for inter- or intra-agency materials, the Appellate Division found the Supreme Court had erred in directing disclosure of certain pages or portions of pages as they were not "factual tabulations or data" or "final agency policy or determinations." Such pages or portions of such pages set out witness statements, email correspondence, and other materials consisting of "opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making" rather than "factual account[s] of the witness's observations."

However, observed the court, a page in which a nonparty FOIL requester, Michael Thomas, discussed certain sensitive matters was not covered by the personal privacy exemption to FOIL because Thomas "consent[ed] in writing to disclosure" by waiving, in an affidavit, any right to confidentiality in any of the records sought. Further, said the Appellate Division, “the remaining records at issue largely relate to [Sell], who expressly waived his right to confidentiality in those records in writing.”

Regarding the remaining materials at issue, the Appellate Division said that Supreme Court had “correctly found that [DOE] failed to meet [its] burden of articulating a ‘particularized and specific justification' for withholding them or redacting them as sought” because there is no blanket exemption for handwritten reports of witness interviews, citing Ingram v Axelrod, 90 AD2d 568.

It should be noted that the release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute. A FOIL request is required only in the event the custodian of the public record[s] sought declines to provide the information requested.

It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

In addition, the Freedom of Information Law is not a bar an employee organization, certified or recognized for any collective negotiating unit of an employer pursuant to Article 14 of the Civil Service Law obtaining the name or home address of any officer, employee or retiree of a public employer, “if such name or home address is otherwise available."

* A judicial review of material alleged to be confidential or sensitive information to determine whether it should be part of the record to be made public.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00425.htm

From the Blogs

From the Blogs

NYMUNIBLOGhas posted a new item, “Impacts of Federal Laws on Municipalities’ Daily Operations” by Joseph V. Frateschi, Esq.

NYMUNIBLOG previously discussed the impacts of federal laws and the United States Constitution upon the daily operations of local municipalities in such articles as “Concern Over Drones: Air Rights, Privacy, Health and Safety are Among the Issues” and “Lesson Learned in Arizona Sign Code Case – Municipal Ordinances Should be Content Neutral.”

You may view its latest post at
http://nymuniblog.com/impacts-of-federal-laws-upon-municipalities-daily-operations/

Employee dismissed pursuant to §75 of the Civil Service Law for incompetency based on excessive absenteeism

Employee dismissed pursuant to §75 of the Civil Service Law for incompetency based on excessive absenteeism

Triborough Bridge and Tunnel Authority v Beverly, OATH Index No. 2238/15

The Triborough Bridge and Tunnel Authority filed disciplinary charges pursuant to §75 of the Civil Service Law against Bruce Beverly, a Bridge and Tunnel Officer, alleging incompetency due to his excessive absenteeism from work. In rebuttal, Beverly alleged that his absences were caused by a long-term disability and sought a one-year leave of absence for ordinary disability pursuant to §72 of the Civil Service Law.

ALJ Alessandra F. Zorgniotti found that Beverly, who had an absenteeism rate of 100% in 2015 and 54% in 2014, was excessively absent and ruled that even if an employee’s  absences are caused by a disability, an employer may discipline the employee for incompetence pursuant to §75 of the Civil Service Law when the absences are excessive and have a burdensome effect on the employer. .

In addition, Judge Zorgniotti ruled that Beverly was not entitled to a one-year leave pursuant to §72 of the Civil Service Law as there was insufficient proof that “he is currently unfit to perform his duties due to a disability.”

In support of her decision, Judge Zorgniotti cited the following decisions:

1. Brockman v. Skidmore, 39 N.Y.2d 1045 rev’g 43 A.D. 2d 572, in which the Court of Appeals reversed a finding that a government agency must treat an employee’s time–and-leave violations pursuant to CSL §72 rather than as a disciplinary matter under CSL §75 when there is evidence of a disability;

2. Garayua v. Board of Education, 248 A.D.2d 714, where the court rejected an assistant custodian’s claim that her physical incapacity and “nonwillful absenteeism” entitled her to leave pursuant to §72, rather than subjecting her to disciplinary action pursuant to §75; and

3. Romano v. Town Board of Colonie, 200 A.D.2d 934, holding that an agency may terminate an employee for excessive absence regardless of whether valid reasons existed for the absences or whether they were authorized, concluding that even if an employee’s absences are caused by a physical or mental disability, the employer may discipline and, if appropriate, terminate the employee for incompetence pursuant to CSL §75 when the absences are excessive and they have a burdensome effect upon the employer.

Considering Beverly’s “egregiously poor attendance over the past two years,” the ALJ recommended that he be terminated from employment.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-2238.pdf

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The Disability Benefits E-book – 2016 Edition: This 810 page e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://section207.blogspot.com/

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