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January 29, 2016

Additional member service credit in a public retirement system is not available to a retired public employee upon reemployment unless he or she discontinues receiving his or her retirement allowance


Additional member service credit in a public retirement system is not available to a retired public employee upon reemployment unless he or she discontinues receiving his or her retirement allowance
Regan v DiNapoli, 2016 NY Slip Op 00415, Appellate Division, Third Department

C. Murray Regan served as a teacher and, in that capacity, he was a member of the New York State Teachers' Retirement System [TRS] for over 30 years when, in January 1998, he simultaneously began to serve as an elected town supervisor. In this latter capacity, he was also a member of the New York Stateand Local Retirement System [ERS].

Regan was subsequently advised by a representative of ERS that he could retire from teaching and continue to accrue service credit in the ERS "[a]s long as [he] continue[d] as an elected official." Regan then retired from teaching in July 1998 and began collecting his retirement allowance from the TRS while continuing to receive his salary as a town supervisor.*

Regan was unsuccessful in his bid for reelection as town supervisor in 2001 and applied for ERS retirement benefits. ERS, however, denied his application, finding that he had not yet accrued the required minimum amount of service credit. In 2004, Regan regained elective office, this time as a village justice and served in that position for eight years during which period he received both his TRS retirement allowance and a village justice's salary. During this time period the ERS sent him annual updates indicating, among other things, that he was also accruing service credit.

Regan decided not to seek reelection to his position as a village justice for the term starting in 2012 and again applied to ERS for retirement benefits. Again, ERS rejected his application, this time explaining that he was ineligible for retirement benefits and its prior advice and updates had been erroneous because, upon acceptance of his position as an elected village justice in 2004, he had not suspended receipt of his TRS pension benefits. Accordingly, said ERS, he did not resume accruing service credit in ERS.**

After exhausting his administrative remedies in an unsuccessful attempt to overturn the denial of his application for additional ERS service credit, Regan nitiated and Article 78 proceeding only to have Supreme Court deny his request for additional service credit and dismiss his petition. Regan appealed the Supreme Court’s ruling to the Appellate Division.

Regan contended that Civil Service Law §150 permits him to receive both his TRS retirement allowance and his salary as an elected official while simultaneously accruing service credit toward an ERS retirement allowance. However, the Appellate Division said it could not agree based upon its review of the language of the statute and the legislative intent behind it.

The court explained that “As relevant here, Civil Service Law §150 generally prohibits receipt of both a public pension and a salary as a public official or employee, but also provides an exception for public pensioners who become elected officials — such as [Regan].”

Although the Appellate Division said that it agreed that this exception allowed Regan to receive a salary as an elected official without suspending his TRS retirement allowance, it noted that Civil Service Law §150 “makes no express mention of service credit” and, instead, refers only to pension benefits that have already been "awarded or allotted." 

Further, noted the court, the legislative history of the measure indicates that the original purpose behind the exception for public pensioners who subsequently become elected officials was to encourage continued civic engagement by "allow[ing] a retired public employee to seek elected public office and continue to receive his/her public pension benefits." Thus, said the court, in its view, “the statute allows public pensioners to continue receiving the benefits they have already earned while also serving in paid elective office, but it does not provide for the accrual of additional credit for new or greater pension benefits.”

Regan also advanced the argument that ERS should be “equitably estopped from denying him additional service credit because his career decisions were based, in part, upon incomplete advice and erroneous information provided by ERS employees regarding his ability to earn such credit.”

The Appellate Division rejected Regan theory of equitable estoppel, explaining that the doctrine of equitable estoppel generally cannot be invoked against a state agency unless “there has been a showing of fraud, misrepresentation, deception, or similar affirmative misconduct, along with reliance thereon.”

Noting that ERS “readily conceded that mistakes were made regarding the information provided to [Regan],” the court said it found no evidence in the record that any of those mistakes rise above the level of "erroneous advice [given] by a government employee[, which] does not constitute the type of unusual circumstance contemplated by the exception" to the doctrine.

* §150 of the Civil Service Law mandates the suspension of the “pension and annuity”  being paid to a retiree less than 70 years of age by a public retirement of this State except as otherwise permitted by §§101, 211, and 212 of the Retirement and Social Security Law, and by §503 of the Education Law, upon the employment of the retiree in “any office, position or employment in the civil service of the state or of any municipal corporation or political subdivision of the state to which any salary or emolument is attached, except jury duty or the office of inspector of election, poll clerk or ballot clerk under the election law, or the office of notary public or commissioner of deeds, or an elective public office.”

** The court noted that Retirement and Social Security Law §40(c)(9), provides that a retired public employee entitled to public pension benefits who subsequently accepts a new public service position is considered to be an active member of the retirement system only if the pension benefits to which he or she is entitled are suspended during his or her active membership.”

The decision is posted on the Internet at:

January 28, 2016

Police confrontations with mentally impaired citizens and inmates


Police confrontations with mentally impaired citizens and inmates
An AELE publication [© 2016 by Ashley Torres and AELE; 60 pages]

Americans for Effective Law Enforcement [AELE] has published a study addressing confrontations with mentally impaired citizens and inmates entitled “Accommodating the Violent: Analyzing Title II of the Americans with Disabilities Relevant to Arrests of the Armed, Violent, and Mentally Ill” by Ashley Torres.

Ms. Torres, a Whittier Law Schoolcandidate for the Juris Doctor degree and the Staff Editor of the Whittier Law Review, notes that “Although a law enforcement officer’s job is maintaining public safety and restoring order, society now demands that officers’ double as mental health proxies, counselors, and hospital transportation for persons with a mental Illness.” Ms. Torres observes that “In order to solve the public policy issue at hand, we must look to outside sources, other than the police themselves, to solve the problem and meet middle ground to keep both our officers and the mentally ill safe.”

The article is posted on the Internet at: http://www.aele.org/sheehan-torres.pdf

January 27, 2016

Unlawful discrimination on the basis of gender identity


Unlawful discrimination on the basis of gender identity
9 New York Code of Rules and Regulations (NYCRR) §466.13

The New York State Division of Human Rights adopted regulations, 9 NYCRR 466.13, prohibiting discrimination and harassment against transgender people and makes clear that transgender individuals are protected under New York State’s Human Rights Law. The new regulations expand the definition of “sex” under New York state law to include gender identity and transgender status.

The Division filed the Rule on January 5, 2016, and it took effect on January 20, 2016. The new rule clarifies how gender identity discrimination may constitute either sex or disability discrimination under the Human Rights Law.

§466.13 reads as follows:

466.13 Discrimination on the basis of gender identity.

(a) Statutory Authority.

Pursuant to N.Y. Executive Law §295.5, it is a power and a duty of the Division to adopt, promulgate, amend and rescind suitable rules and regulations to carry out the provisions of the N.Y. Executive Law, Article 15 (Human Rights Law).

(b) Definitions.

(1) Gender identity means having or being perceived as having a gender identity, self-image, appearance, behavior or expression whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the sex assigned to that person at birth.

(2) A transgender person is an individual who has a gender identity different from the sex assigned to that individual at birth.

(3) Gender dysphoria* is a recognized medical condition related to an individual having a gender identity different from the sex assigned at birth.

(c) Discrimination on the basis of gender identity is sex discrimination.

(1) The term “sex” when used in the Human Rights Law includes gender identity and the status of being transgender.

(2) The prohibitions contained in the Human Rights Law against discrimination on the basis of sex, in all areas of jurisdiction where sex is a protected category, also prohibit discrimination on the basis of gender identity or the status of being transgender.

(3) Harassment on the basis of a person’s gender identity or the status of being transgender is sexual harassment.

(d) Discrimination on the basis of gender dysphoria or other condition meeting the definition of disability in the Human Rights Law set out below is disability discrimination.

(1) The term “disability” as defined in Human Rights Law §292.21, means

(a) a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or

(b) a record of such an impairment or

(c) a condition regarded by others as such an impairment, provided, however, that in all provisions of this article dealing with employment, the term shall be limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held.

(2) The term “disability” when used in the Human Rights Law includes gender dysphoria or other condition meeting the definition of disability in the Human Rights Law set out above.

(3) The prohibitions contained in the Human Rights Law against discrimination on the basis of disability, in all areas of jurisdiction where disability is a protected category, also prohibit discrimination on the basis of gender dysphoria or other condition meeting the definition of disability in the Human Rights Law set out above.

(4) Refusal to provide reasonable accommodation for persons with gender dysphoria or other condition meeting the definition of disability in the Human Rights Law set out above, where requested and necessary, and in accordance with the Divisions regulations on reasonable accommodation found at 9 NYCRR § 466.11 , is disability discrimination.

(5) Harassment on the basis of a person’s gender dysphoria or other condition meeting the definition of disability in the Human Rights Law set out above is harassment on the basis of disability.

* Dysphoria: a state of feeling unwell or unhappy.

Termination of employee found guilty violating patient escort procedures, being late for work, falsifying timesheets, and failing to arrive on time for assignments


Termination of employee found guilty violating patient escort procedures, being late for work, falsifying timesheets, and failing to arrive on time for assignments
OATH Index No. 2088/15

A community liaison worker at Bellevue Hospital was charged with violating patient escort procedures, being late for work, falsifying timesheets, and failing to arrive on time for assignments.

OATH Administrative Law Judge Kara J. Miller sustained the charges. Evidence showed that the employee had violated patient escort procedures on three occasions by leaving patients unescorted at locations outside the facility; violated the hospital's lateness policy and in one instance, falsified her time sheet to indicate she had arrived to work on time.

ALJ Miller recommended termination of employment.   

The decision is posted on the Internet at:
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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:

January 26, 2016

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:

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