Governor Cuomo announced three appointments to the New York State Department of Financial Services

Governor Cuomo announced three appointments to the New York State Department of Financial Services

Source: Office of the Governor

On January 29, 2016 Governor Andrew M. Cuomo announced three appointments to the New York State Department of Financial Services [DFS]. Earlier Governor Cuomo nominated Maria Vullo, Esq. to serve as the Superintendent of DFS.

DFS is charged with protecting consumers and markets in New York State from fraud and financial crises, as well as reforming the regulation of financial services to keep pace with dynamic changes within the industry. It was created in 2011 by the merger of the State’s Banking and Insurance Departments.

Matthew L. Levine, Esq. has been appointed Executive Deputy Superintendent for Enforcement. In this role he will guide the Department's enforcement actions to ensure that regulated parties are held accountable for unlawful business practices, coordinating with other senior staff and law enforcement agencies under the direction of the Superintendent.

Mr. Levine is a former federal prosecutor and trial lawyer with significant experience in matters involving the financial markets and health care fraud. He has also represented clients in private practice, most recently as the founding principal of his own law firm in New York City. For nearly a decade, he served as an Assistant U.S. Attorney, first in the U.S. Attorney’s Office for the District of Columbia and later in the U.S. Attorney’s Office for the Eastern District of New York. There, he served as Acting Chief of the Business & Securities Fraud Section and supervised a group of federal prosecutors conducting major securities fraud and other white-collar prosecutions. Before becoming a federal prosecutor, he worked in private practice as a Litigation Associate at the New York City office of Paul, Weiss, Rifkind, Wharton & Garrison, where he represented corporate and individual clients in civil and criminal matters.

Mr. Levine clerked for the United States District Judge Barefoot Sanders in Dallas, Texas. He earned his J.D. at Columbia School of Law and a B.A. in Government at Lehigh University.

Richard A. Loconte, Esq. has been appointed Executive Deputy Superintendent for Communications and Strategy at DFS. Mr. Loconte brings with him more than 20 years of experience in communications and public policy. Since 2008, he was the Deputy Head of Government Affairs & Associate General Counsel at AIG, Inc. There, he represented AIG before regulatory agencies and other government bodies on legislative and regulatory issues related to the insurance industry and the broader financial services sector, and was instrumental in reestablishing the company's federal government affairs office in Washington, DC.

From 2005 - 2008, he was the Deputy Executive Director for the Association for a Better New York (ABNY), where he oversaw the organization’s communications, administrative functions, and legal matters. Prior to his time at ABNY, he was the Director of Public Affairs at the Grand Central Partnership. Mr. Loconte has also held roles at the New York City Department of Finance and the New York City Department of Consumer Affairs. He earned his J.D. from Brooklyn Law School and a B.A. in Political Science from Fordham University.

Jennifer L. Smith, Esq. has been appointed Special Assistant to the Superintendent at DFS. Most recently, Ms. Smith was an attorney at Skadden, Arps, Slate, Meagher & Flom LLP, where she worked with former Chief Judge Judith S. Kaye on various commercial and appellate matters. While at Skadden, she also served as Assistant Counsel to the Commission on Judicial Nomination and has handled multiple pro bono matters, including representation of domestic violence victims and representation of a client seeking executive clemency through the Department of Justice’s 2014 Clemency Project.

Prior to her time at Skadden, she was a Trial Attorney for Bolan Jahnsen Dacey, and Greenberg Traurig, where she litigated civil matters. She also developed a program with Sanctuary for Families to provide legal services to homeless and battered women and their children at the New York City Department of Homeless Services Prevention Assistance & Temporary Housing (PATH).

Ms. Smith earned her J.D. at Benjamin N. Cardozo School of Law, an M.A. in Organization and Leadership from Columbia University, Teachers College, and a B.A. in English and Anthropology & Sociology from Lafayette College. She received the Empire State Counsel Award from the New York State Bar Association in 2013 and 2014.

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:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00415.htm

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

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:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-2088.pdf

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