Acting in self-defense when accosted by others while at work did not constitute disqualifying misconduct within the meaning of the Unemployment Insurance Law

Acting in self-defense when accosted by others while at work did not constitute disqualifying misconduct within the meaning of the Unemployment Insurance Law
Matter of Chirico (City of Syracuse--Commissioner of Labor), 2016 NY Slip Op 01027, Appellate Division, Third Department

Anthony D. Chirico worked for the City of Syracuse as a motor equipment operator for about 10 months. After parking the truck he was driving, three individuals, two of whom were carrying golf clubs, assaulted him. After being struck with a golf club, Chirico grabbed one of the golf clubs and swung the club to ward off the three attackers. A few days later the City terminated Chirico from his employment for "unsatisfactory work performance."

Chirico then applied for, and received, unemployment insurance benefits. The Department of Labor, however, subsequently determined that Chiricolost his employment with the City due to actions that constituted misconduct in connection with that employment, thus disqualifying him from receiving benefits.

Ordered to reimburse the City for the unemployment insurance benefits he had received,* Chirico appealed. Although the Administrative Law Judge [ALJ] upheld the Department's determination, the Unemployment Insurance Appeal Board reversed the ALJ’s ruling and determined that Chirico was entitled to receive unemployment insurance benefits because, in its view, his actions were in self-defense and did not constitute disqualifying misconduct.

The City appealed the Board’s determination, contending that Chirico not entitled to receive unemployment insurance benefits because he had engaged in disqualifying misconduct while at work. The Appellate Division sustained the Board’s determination, explaining "Whether a claimant has engaged in disqualifying misconduct is a factual question for the Board to resolve and its determination will not be disturbed if supported by substantial evidence."

The court also noted that not every discharge for cause is misconduct within the meaning of the Unemployment Insurance Law, which defines such disqualifying misconduct  conduct as “a willful and wanton disregard of the employer's interest.”

Although engaging in a physical altercation or exchange during the course of one's employment may be found to constitute disqualifying misconduct, here Chirico asserted that [1] he did not initiate the altercation and [2] that he acted in self-defense and appropriately under the circumstances. These assertions, said the court, “presented a credibility issue that the Board could properly choose to credit.”

The City also argued that Chirico had made a “willful false statement” in his application for unemployment insurance benefits. The Appellate Division rejected the City’s contention that Board should have found that such a willful false statement or representation warranted a reduction or forfeiture of Chirico’s unemployment insurance benefits.

The court said that the details of the incident that Chirico provided in his application for unemployment benefits were consistent with his testimony at the hearing, “which the Board credited.” Accordingly, the Appellate Division found no reason to disturb the Board's decision.

* See Labor Law §594

The decision is posted on the Internet at:

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http://www.nycourts.gov/reporter/3dseries/2016/2016_01027.htm

Selected Reports issued by the Office of the State Comptroller during the week ending February 28, 2016

Selected Reports issued by the Office of the State Comptroller during the week ending February 28, 2016

Click on text highlighted in color to access the full report

Former Director of the Putnam County Department of Consumer Affairs enters guilty plea for stealing money she accepted to satisfy county-issued fines

Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the guilty plea of Jean Noel, the former Director of the Putnam County Department of Consumer Affairs, for stealing money from Putnam County. Ms. Noel was arrested after a joint investigation by the State Police, the Office of the New York State Comptroller, and the Attorney General’s Office revealed Ms. Noel’s theft of cash that she accepted from local contractors to satisfy county-issued fines. Ms. Noel entered a guilty plea before the Honorable Joseph J. Spofford, Jr. in Carmel Town Court to the class “A” misdemeanor charge of petit larceny under Penal Law § 155.25. As part of a plea agreement, Ms. Noel agreed to terminate her employment with Putnam County, pay restitution, and was sentenced to a one-year conditional discharge.

http://www.osc.state.ny.us/press/releases/feb16/022316.htm?utm_source=weeklynews20160228&utm_medium=email&utm_campaign=022316release

Former Tupper Lake Volunteer Fire Department Treasurer pleaded guilty to grand larceny

Former Tupper LakeVolunteer Fire Department Treasurer Timothy J. Brown pleaded guilty to grand larceny and agreed to repay the $30,000 he stole for private vacations revealed in an auditand investigation by State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/feb16/022416b.htm?utm_source=weeklynews20160228&utm_medium=email&utm_campaign=022416brelease

School District Audits Released

Alexander Central School District - Financial Condition

Cazenovia Central School District - Financial Condition

Rondout Valley Central School District - Financial Management

Silver Creek Central School District – Financial Condition

Wallkill Central School District – Financial Management

Comptroller rejected contracts valued at $2.64 billion and 4,200 payments valued at $2.7 million due to fraud, waste or other improprieties in January

State Comptroller Thomas P. DiNapoli announced his office approved 1,436 contracts valued at $4.53 billion and approved 1.9 million payments worth $10.2 billion in January. His office also rejected 170 contracts and related transactions valued at $2.64 billion and 4,200 payments valued at $2.7 million due to fraud, waste or other improprieties.

http://www.osc.state.ny.us/press/releases/feb16/022516a.htm?utm_source=weeklynews20160228&utm_medium=email&utm_campaign=022516arelease

Department of Health (DOH) needs to fix problems and delays with how it is assessing fines to nursing homes after violations are found

The state Department of Health (DOH) needs to fix problems and delays with how it is assessing fines to nursing homes after violations are found, according to an auditreleased by State Comptroller Thomas P. DiNapoli. While DOH is frequently inspecting nursing homes and acting quickly on serious complaints, auditors found that some facilities had repeated violations that escalated into more serious problems with limited consequences.

http://www.osc.state.ny.us/press/releases/feb16/022216.htm?utm_source=weeklynews20160228&utm_medium=email&utm_campaign=022216release

State may face increasing budgetary challenges in coming years as revenue growth

is expected to slow

New York state’s fiscal position has improved, but the state may face increasing budgetary challenges in coming years as revenue growth is expected to slow and billions of dollars in settlement money are spent, according to an analysisof the $154.6 billion Executive Budget released by State Comptroller Thomas P. DiNapoli. This report, prepared each year following the release of the Executive Budget, provides information to assist in the evaluation of the 2016-17 proposal.

http://www.osc.state.ny.us/press/releases/feb16/022416a.htm?utm_source=weeklynews20160228&utm_medium=email&utm_campaign=022416arelease

Fiscal Stress Monitoring System – Reports concerning selected villages

State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System has identified 18 villages in New Yorkin some level of fiscal stress. For 2015, three villages have been classified as in “significant fiscal stress,” four in “moderate fiscal stress,” and 11 as “susceptible to fiscal stress.” Last year, a total of 22 villages were listed in fiscal stress.

http://www.osc.state.ny.us/press/releases/feb16/022516.htm?utm_source=weeklynews20160228&utm_medium=email&utm_campaign=022516release

Audit finds non-profit provider of supportive housing for New York City’s Dept. of Health and Mental Hygiene (DOHMH) overbilled the agency

A non-profit provider of supportive housing for New York City’s Dept. of Health and Mental Hygiene (DOHMH) overbilled the agency by $1 million according to an auditreleased by New York State Comptroller Thomas P. DiNapoli. DOHMH’s weak oversight of the Center for Urban and Community Services made the overpayments possible and raises concerns about potential overpayments to other vendors. 

http://www.osc.state.ny.us/press/releases/feb16/021916a.htm?utm_source=weeklynews20160228&utm_medium=email&utm_campaign=021916arelease

State Comptroller and the Church of England’s investment fund challenge Exxon’s attempt to silence questions on climate change

Investors, led by New York State Comptroller Thomas P. DiNapoli and the Church of England’s investment fund, the Church Commissioners, asked the Securities and Exchange Commission to reject ExxonMobil’s plan to block a shareholder proposal for information on how the company will be impacted by public policies seeking to rein in climate change.

http://www.osc.state.ny.us/press/releases/feb16/022416.htm?utm_source=weeklynews20160228&utm_medium=email&utm_campaign=022416release

 
State’s January receipts $4.8 billion higher than initially projected

New York state collected $126.6 billion in receipts from April through January, which was $582.3 million higher than the Division of the Budget’s latest projections and $4.8 billion higher than initial projections, according to the monthly state cash report issued by New York State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/feb16/022216a.htm?utm_source=weeklynews20160228&utm_medium=email&utm_campaign=022216arelease

Governor announces recent administration appointments

Governor announces recent administration appointments

Source: Office of the Governor

On February 26, 2016, Governor Andrew M. Cuomo announced the appointment of the individuals listed below to his administration.

Jamie Malanowski has been appointed Senior Speechwriter for the Executive Chamber. He brings with him 30 years of experience in writing and editing. Most recently, Mr. Malanowski was the Lead Writer for the award-winning Disunion series in The New York Times, and the author of the biography Commander Will Cushing, Daredevil Hero of the Civil War. He has served as the National Editor of Spy and was a member of the founding staff; Senior Editor at Esquire; and Senior Editor at Time, among other positions. He also published two novels and more than 500 articles in more than thirty magazines, newspapers and websites in the United States and Great Britain. In 2012, he was the recipient of the Folio Award (the ‘Eddie’) for Magazine Feature Writing. He holds an M.A. from the University of Pennsylvania and a B.A. from LaSalle College.

Matthew Pennello has been appointed Special Assistant for Legislative Affairs. Mr. Pennello has worked in public service since 2010, most recently as the Governor’s Regional Representative for the Mohawk Valley. Prior to working at the Executive Chamber, he was the Assistant for Central New York Intergovernmental Affairs and Federal Policy for the NYS Department of Labor. He has also worked in the Department of Law of the Syracuse Corporation Counsel. A Central New York native, Mr. Pennello  received his B.A. in Political Science from SUNY Cortland, where he earned a Research Fellowship studying the effect of terrorism on modern constitutional theory.

Melissa R. Quesada has been appointed Director of Latino Affairs, after having served earlier as Assistant Deputy Commissioner for Worker Protection at the Department of Labor where she was responsible for coordinating the planning and implementation of multi-agency statewide enforcement and outreach efforts. While at the Department Ms. Quesada also served as the Director of Outreach for the Governor’s Unemployment Strike Force, cultivating relationships with local businesses, targeted constituencies, elected officials and community organizations. Prior to that, Ms. Quesada served as a Special Associate for the New York City Law Department. She holds a J.D. from Hofstra University School of Law and a B.A. from Binghamton University.

Mary Beth Woods has been appointed Executive Director of the NYS Workers’ Compensation Board, after serving as the Acting Director. Ms. Woods has worked at the Workers’ Compensation Board for over 15 years, and held titles including Deputy Executive Director, Director of Financial Administration and Director of Licensing. From 1990-1998, Ms. Woods worked at the NYS Division of the Budget, where she was an Associate Budget Examiner. She was also a Supervising Senior Accountant at KPMG Peat Marwick. Ms. Woods is currently a Board Member of the Compensation Insurance Rating Board and has previously served as the Chair of the Governor’s Task Force on Group Self Insurance. She earned a B.S. in Business Administration from Siena College and is a Certified Public Accountant in New York State.

Justin Bernbach has been appointed Chief Government Affairs & Community Relations Officer at the MTA. Most recently, Mr. Bernbach was Northeast Director of Government Relations at HNTB, a national transportation design and program management company. Previously he was the Managing Director of State and Community Affairs for American Airlines. In this role, he managed state and local government relations for American Airlines in New York, New Jersey, Connecticut and Massachusetts. Prior to his role there, he was the Deputy Director of Communications at the Phoenix House Foundation, the nation’s largest nonprofit substance abuse treatment organization. Mr. Bernbach also served as the New York City-based Press Officer for the New York State Assembly from 2002-2004. He holds an M.P.P. from Harvard University’s John F. Kennedy School of Government and a B.A. in Government and Economics from Cornell.​

John Lockwood has been appointed Special Counsel to the Commissioner for Ethics, Risk and Compliance for the Office of Children and Family Services. Most recently he served as the First Deputy County Attorney for the Family Court Unit at the Schenectady County Attorney’s Office. He also recently served as a Village Trustee for the Village of Scotia, N.Y. Prior to joining the Schenectady County Attorney’s Office, Mr. Lockwood was an Assistant Public Defender in the Schenectady County Public Defender’s Office. He will be replacing Barbara Kruzansky who will become Director of the Office of Agency Performance. He holds a J.D. from Roger Williams University School of Law and a B.S. from Salve Regina University.

Peggy Rodriguez has been appointed Regional Representative for the Mohawk Valley. Previously she served as a Special Assistant for Labor Regional Affairs at the New York State Department of Labor. She has held numerous positions at the University of Nevada, Las Vegas, including Victim Advocate for the Jean Nidetch Women’s Center at UNLV, and Research Assistant at the University’s Boyd Law School. Ms. Rodriguez holds a B.A in Political Science from UNLV.