Distinguishing between residence and domicile

Distinguishing between residence and domicile

Rosseychuk (City of New York--Commissioner of Labor), 2016 NY Slip Op 01885, Appellate Division, Third Department

An individual may simultaneously have a number of residences but he or she has only one domicile at a time regardless of the number of residences involved. The term “domicile” means the place where a person has his or her permanent home to which he or she intends to return if living or having a residence at a different location. 

Zhanna Rosseychuk, as an employee of the New York City Office of Child Support Enforcement [Office], was required to become a resident of the City within 90 days of being hired and to maintain such residency.* The Office discharged Rosseychuk after it learned that that she did not comply with this residency requirements.

Rosseychuk’s application for unemployment insurance benefits was denied by an Administrative Law Judge [ALJ] on the ground that she voluntarily left her employment without good cause inasmuch as she provoked her discharge by not complying with the employer's residency policy. The Unemployment Insurance Appeal Board, without resolving the issue of whether Rosseychuk was in full compliance with the Office's residency policy, reversed the ALJ’s decision on the ground that the voluntary transgression prong of the doctrine of provoked discharge had not been established so as to find that Rosseychuk had voluntarily left her employment without good cause. The Office appealed the Board’s decision.

The Appellate Division said that a "Provoked discharge . . . is a narrowly drawn legal fiction designed to apply where an employee voluntarily engages in conduct which transgresses a legitimate known obligation and leaves the employer no choice but to discharge him [or her]." Whether an applicant for unemployment insurance benefits voluntary left his or her of employment without good cause by provoking his or her discharge is a factual determination for the Board to determine.

Rosseychuk testified that she began living with her cousin in an apartment in New York Cityin an attempt to comply with the Office's residency requirements, as well as to accommodate her school schedule. Rosseychuk testified that she gave her cousin money to live in the apartment and to help offset expenses, that she received mail at that address, including bank account and credit card statements, and that she paid pays New York City income taxes. She also testified that, because she did not fully understand the residency requirement, she asked both her supervisor and the employer's personnel department if she was considered to be in compliance with the necessary requirement; those inquiries, however, went unanswered.

Although Rosseychuk spent time with her husband in an apartment outside New York City, the Office acknowledged that "an individual could maintain more than one residence, even if one was outside New York City, and still be in compliance with its residency requirement."

The Appellate Division ruled that “Under these circumstances, substantial evidence supports the Board's finding that [Rosseychuk] did not voluntarily engage in conduct that transgressed the [Office’s] mandate so as to find that she provoked her discharge.

* NYC Administrative Code §12-119 Definitions, provides: “As used in sections 12-120 and 12-121 of this subchapter:

“a. The word "residence" means domicileand the word "resident" means domiciliary[emphasis supplied].

“b. The term "city service" means service as an employee of the city or of any agency thereof other than service in a position which is exempted from municipal residence requirements pursuant to the public officers law or any other state law.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_01885.htm

Tests used by court to determine if a public officer or employee is entitled to “qualified immunity” when he or she is being sued for damages in a civil action

Tests used by court to determine if a public officer or employee is entitled to “qualified immunity” when he or she is being sued for damages in a civil action

Lawson v. Hilderbrand et al, USCA, 2^nd Circuit, 15-653-cv [Summary Order*]

Timothy Hilderbrand and his co-defendants appealed a United States District Court’s denial of their motion for summary judgment on their theory that they were entitled to qualified immunity on “Lawson’s search and seizure claims” in the first count of his complaint.** 

The Second Circuit Court of Appeals, citing Harlow v Fitzgerald, 457 US 800, said that qualified immunity may be claimed by public officers and employees in civil suits seeking damages “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

The court then explained that although an appeal of a denial of a motion for summary judgment typically is not permitted as that decision is not a “final judgment,” the collateral order doctrine permits an immediate appeal of a denial of a motion for summary judgment on the issue of qualified immunity “where the district court denied the motion as a matter of law.”*** However, such an appeal is available to defendants only the defendants “accept as true [the] plaintiff’s version of the facts for purposes of the appeal.”

According to the decision, police entered Duncan Lawson’s home with his consent. When that consent was revoked, the Second Circuit said that “it was objectively reasonable” for the police officers to believe that “exigent circumstances made their continued presence in the house, and their confinement of the residents to the living room, lawful.”

The Second Circuit said that “When a government official charged with violating federal constitutional rights seeks summary judgment on the ground of qualified immunity, the Court may first consider whether there was a “violation of clearly established law before turning to the more difficult question whether the relevant facts make out a constitutional question at all.”

In this instance the court concluded that “the lack of clearly established law” barring the actions the police officers involved entitles them to qualified immunity for their actions.

In contrast, certain public officials are entitled to “absolute immunity.” Absolute immunity is typically limited to judges, prosecutors, legislators, and the highest executive officials when acting within their authority. Absolute immunity also has been granted to lawyers in some situations.

* Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by federal rule of appellate procedure 32.1 and the 2^nd Circuit’s Local Rule 32.1.1. When citing a summary order in a document filed with the Second Circuit, a party must cite either the federal appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

** Lawson v. Hilderbrand, 88 F. Supp. 3d 84

*** The doctrine allows appeals from interlocutory rulings (i.e., rulings preceding a final judgment) so long as those rulings conclusively decide an issue separate from the merits of the case [See Cohen v Beneficial Industrial Loan Corp., 337 U.S. 541].

The 2^nd Circuit’s decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/93cb634e-f589-4ce9-99c2-1d5c59846bb/16/doc/15-653_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/93cb634e-f589-4ce9-99c2-81d5c59846bb/16/hilite/

New national study reports “Saving for College” 529 plan costs “state by state”

New national study reports “Saving for College” 529 plan costs “state by state”

Source: Study by Joseph Hurley, Savingforcollege.com

This 2016 study notes that New York's 529 College Savings Program “offers the lowest-cost 529 plan among plans that charge the same fee across the entire menu of investment options. Its total 10-year costs are $205, representing an annual fee of only 0.16%.” Also, New York does not charge 529 program participants an annual fee.

Highlights from the study are posted on the Internet at:

 http://www.savingforcollege.com/articles-professional/finding-the-lowest-cost-529-savings-plans?utm_source=SFC_ProUpdate&utm_medium=SFC_ProUpdate&utm_campaign=SFC_ProUpdate_March012016

The complete study is posted on the Internet at:

http://www.savingforcollege.com/529_fee_study/index.php

Employee’s disciplinary history for rudeness and insubordination considered in determining disciplinary penalty to be imposed

Employee’s disciplinary history for rudeness and insubordination considered in determining disciplinary penalty to be imposed

Admin. For Children’s Services v Berrios, OATH Index #124/16

Giselle Berrios, a child protective specialist, employed by the Administration for Children’s Services [ACS], was served with disciplinary charges alleging that she failed to appear at family court hearing concerning a case under her supervision at the time scheduled and raising her voice at an agency attorney when questioned about the case.

Berrios admitted to having forgotten to appear at family court, but denied yelling at the agency attorney.

ALJ Astrid B. Gloade found that Berrios' testimony was not credible. The ALJ noted that the case had been on the court’s calendar almost every week because the judge was closely monitoring ACS’s response to numerous concerns that had been raised about the family’s well-being.

In contrast, the ALJ found that the attorney's testimony was corroborated by a contemporaneous telephone complaint and an e-mail to Berrios' supervisor after the incident.

In addition, Judge Gloade noted that “even were I to credit [Berrios’] explanation [that she forgot the court appearance], her forgetfulness does not excuse her failure to appear in court.”

Given the nature of the proven misconduct, as well as Berrios’ disciplinary history for rudeness and insubordination, the ALJ recommended that Berrios be suspended without pay for 55-days.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16-124.pdf

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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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Use of video surveillance recording in disciplinary actions

Use of video surveillance recording in disciplinary actions

NYC Dept. of Environmental Protection v Gaicia, OATH Index #211/16

With the expanding installation of video surveillance equipment, video tape recordings are being used with increasing frequency in disciplinary actions.

The NYC Dept. of Environmental Protection [Department], alleged that one of its employees, Supervising Sewage Treatment Worker Nicholas Gaicia, had an oral altercation with a co-worker that also involved Gaici's throwing chairs and slamming doors.

The Department introduced a video surveillance recording into evidence, contending that  the video the showed the exchange between Gaicia and his co-worker. It also presented the testimony of three employees in support of the charges it had filed against Gaicia.

Gaicia testified in his defense and called four other employees as witnesses testify on his behalf.

OATH Administrative Law Judge [ALJ] John B. Spooner found that the video tape and the testimony presented by the employer failed to support the “incredible assertion that Gaicia was threatening” his co-worker. The ALJ also found that the allegations that Gaicia had thrown chairs and slammed doors set out in the Department's notice of discipline were not corroborated by the Department’s witnesses.

ALJ Spooner recommended that the disciplinary charges brought against Gaicia be dismissed and that he be reimbursed for the time he was suspended from his position without pay.   

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-0211.pdf

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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 

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Cybercriminals hold computer files hostage for ransom

Cybercriminals hold computer files hostage for ransom

Source: Governing the States and Localities

Tod Newcombe, writing for Governing the States and Localities, points out the growing threat of cybercrime and just how vulnerable public entitites are to it.

As an example, Mr. Newcombe reports that “In June 2014, an officer with the Durham, N.H., Police Department opened what she thought was a digital fax attached to an email about an investigation she was working on. Instead, it was a type of malicious software that infected files throughout the entire police department’s network of computers. By the next morning, the entire system was in serious trouble.

“The officer had accidentally downloaded an extortion malware program popularly known as ransomware. It encrypts a computer’s files (meaning they can only be accessed by the cybercriminals) and then sends victims a digital ransom note, demanding money to decrypt them.”

The full text of Mr. Newcombe’s article is posted on the Internet at:

http://www.governing.com/columns/tech-talk/gov-ransomware-police-cybsersecurity.html?utm_medium=email&utm_source=Act-On+Software&utm_content=email&utm_campaign=Federal%20GMO%20Labeling%20Bill%20Would%20Trump%20State%20Laws&utm_term=Hackers%20Hold%20Police%20Files%20Hostage%20for%20Ransom

Professional Career Opportunities (PCO) eligible lists

Professional Career Opportunities (PCO) eligible lists

Source: NYS Dept. of Civil Service, Scott DeFruscio, Director of Staffing Services

The New York State Department of Civil Service has published new policies for agencies that choose to canvass the Professional Career Opportunities (PCO) eligible lists by email. These policies are designed to improve  timeliness and efficiency when canvassing a PCO eligible list.

Advisory Memorandum updates and replaces the section on Email Canvasses No. 14-03. and is posted on the Internet at: https://www.cs.ny.gov/ssd/pdf/am16-01.pdf

A public educational institution is not an “education corporation” within the meaning of New York State’s Human Rights Law

A public educational institution is not an “education corporation” within the meaning of New York State’s Human Rights Law

Garcia v City Univ. of N.Y., 2016 NY Slip Op 01271, Appellate Division, First Department

Supreme Court dismissed Minerva Garcia's disability discrimination claims brought against the City University of New York pursuant to New York’s Executive Law §296(4), the State’s Human Rights Law (HRL).

The Appellate Division, citing North Syracuse Central School District v New York State Division of Human Rights, 19 NY3d 481, sustained the lower court’s ruling explaining that the City University of New York is a public educational institutions*and not "education corporation[s] or association[s]" within the meaning of Executive Law §296(4).

In North Syracuse Central School District the Court of Appeals said that the issue before it was whether a public school district is an "education corporation or association" as contemplated by Executive Law §296(4).”  The court concluded that it was not and, therefore, the New York State Division of Human Rights (SDHR) “lacks jurisdiction to investigate complaints against public school districts under that provision.”

Although SDHR asked the court to “liberally construe the ‘general purpose’ of the Human Rights Law, which is to ‘eliminate and prevent discrimination . . . in educational institutions’ [citing Executive Law §290(3)], and conclude that a public school district is an ‘education corporation or association,’” the court declined, stating that the Division’s argument overlooked a basic premise: “there must first be an underlying directive in the statute before this Court can apply such a construction”  and that  “it is evident from the legislative history that the term ‘education corporation or association,’ the origins of which can be traced to the Tax Law, refers to only private, non-sectarian entities that are exempt from taxation under [Real Property Tax Law] Article 4.”

The Appellate Division then noted:

1. Even if Ms. Garcia's were able to assert her claims under the HRL her complaint would have been dismissed as she did not make out a prima faciecase of unlawful disability discrimination having failed to present any medical evidence showing that she suffered from bipolar disorder, depression, or any other cognizable disability; and

2. Ms/ Garcia's proposed disability discrimination claims under the Americans with Disabilities Act (ADA) were similarly without merit as ADAclaims "are governed by the same legal standards" as disability discrimination claims under the HRL.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_01271.htm

Selected reports issued by the Office of the State Comptroller during the week ending March 12, 2016

Selected reports issued by the Office of the State Comptroller during the week ending March 12, 2016

Click on text highlighted incolor to access the entire report 

DiNapoli: Audit Finds NYC Needs to Improve Income Verification and Enforcement at Mitchell-Lama Housing
Some residents of Mitchell-Lama apartments in New York City make far more than the program’s maximum allowed incomes and pay a modest monthly surcharge as their only penalty, according to an auditreleased by New York State Comptroller Thomas P. DiNapoli. The audit found the New York City Department of Housing Preservation and Development has not done enough to verify that residents are reporting their true income and are paying the correct surcharge when their income exceeds allowable limits.

School audits completed

Ardsley Union Free School District – Reserve Funds (Westchester County)
The district’s employee benefit accrued liability reserve exceeded the amount deemed necessary to pay employees for accrued and unused sick and vacation leave time when they leave district employment by almost $178,000. The district’s remaining reserve funds were funded at reasonable levels.

Babylon Union Free School District – Financial Condition (Suffolk County)
Over a four-year period, the district consistently overestimated appropriations and did not use 94 percent of appropriated fund balance, which allowed the district to circumvent the 4 percent statutory limit on unrestricted fund balance. In addition, the district did not have proper documentation for the establishment and use of three of its four reserve funds.

Berkshire Union Free School District – Financial Condition (Columbia County)
The district reported fund balance deficits for four consecutive fiscal years, in part, due to shortfalls in budgeted tuition revenue. To alleviate cash flow difficulties, officials issued revenue anticipation notes each of the past four fiscal years.

Cobleskill-Richmondville Central School District – Special Education Services (Schoharie County)
District officials provided cost effective special education services to its students and saved the district approximately $1.7 million in program and related services costs during 2014-15. The district also saved 13 other districts approximately $1.3 million during the same year as their authorized special education service provider.

East Meadow Union Free School District – Financial Condition (Nassau County)
The district overestimated expenditures by a total of approximately $29.4 million during fiscal years 2012-13 through 2014-15. The district used only 22 percent of its appropriated fund balance during this time frame. As a result, the district’s unrestricted fund balance has ranged between 5 and 6 percent of the ensuing year’s appropriations in each of the last three fiscal years, which exceeds statutory limits. 

Gilbertsville-Mount Upton Central School District – Cafeteria Operations (Otsego County)
District officials have taken steps to effectively manage cafeteria operations by attempting to decrease expenditures and increase revenues. The district, however, did not perform a per-meal cost analysis to determine if lunch pricing is adequate.

Huntington Union Free School District – Financial Condition (Suffolk County)
From 2012-13 through 2014-15, total revenues exceeded expenditures by as much as $4.1 million and no amount of appropriated fund balance was used to finance operations. Because the district adopted budgets with overly conservative expenditure estimates, unassigned fund balance increased beyond the 4 percent statutory limit.

Ithaca City School District – Financial Condition (Tompkins County)
From fiscal years 2010-11 through 2014-15, the district increased its use of fund balance to support operating expenditures and total fund balance was reduced by $13.1 million, or 54 percent. Officials have since implemented a number of cost-saving measures to ensure the use of recurring revenues to support recurring expenditures.

Newfane Central School District – Financial Condition (Niagara County)
For fiscal years 2011-12 through 2014-15, the district annually appropriated more in fund balance than what was actually needed to fund operations. This practice allowed the district to circumvent the 4 percent statutory limit on unrestricted fund balance. In addition, the district overfunded two reserves by as much as $9.8 million.

Pleasantville Union Free School District – Financial Condition (Westchester County)
The district adopted budgets from 2010-11 through 2014-15 that overestimated expenditures and appropriated fund balance that was not used to fund operations. The district has not established a reserve fund policy stating how much would be set aside in each reserve, how each reserve would be funded or when each reserve would be used.

Poland Central School District – Procurement (Herkimer County)
District officials have established and implemented an effective system to ensure goods and services were purchased in accordance with the district’s procurement policy and applicable statutes.

Remsen Central School District – Fund Balances and Reserves (Oneida County)
Officials have not developed a reserve fund policy or multiyear financial and capital plans to help determine how the reserve funds fit into the district’s overall financial management strategy. The district has not used the more than $115,000 in the debt service fund to pay down debt.

Sullivan County Board of Cooperative Educational Services – Central Business Office Internal Controls (2015M-331)
District officials have established effective controls over cash disbursements and payroll, including segregating duties so that no individual controls all phases of a transaction. They also provide increased oversight by having independent staff review transactions for key business processes.

Tompkins-Seneca-Tioga Board of Cooperative Educational Services – Energy Performance Contract (2015M-315)
The board entered into an energy performance contract that guarantees an energy cost savings of $4.1 million over the 18-year contract term. In year one of the contract, the district saved a total of $181,586. If the district maintains these savings each year, it will be on track to reach the contract goal.

Municipal Audits completed

Niagara County – Golf Course Financial Operations (2015M-308)
County officials did not establish accountability over golf course sales. Consequently, golf course sales were not all recorded in the electronic point of sale system, cash receipts were not always deposited in a timely manner and cash on hand was not properly safeguarded.

Orient Fire District – Cash Reserves and Credit Cards (Suffolk County)
The board did not exercise appropriate oversight or establish sound policies and procedures related to credit card usage and did not provide sufficient oversight of travel and meal expenditures. The treasurer paid credit card claims prior to board approval.

City of Salamanca – Selected Financial Activities (Chautauqua County)
The city council did not develop a long-term financial plan, long-term capital plan or require a cash flow analysis to monitor and assess reported revenues for reasonableness. The comptroller did not provide the council with cash flow analyses and did not submit casino revenue claims in a timely manner to the Seneca Nation. The comptroller did not enforce the collection of overdue property tax payments in a timely manner and did not follow tax enforcement procedures prescribed by law.

Town of Ticonderoga – Financial Records and Reports (Essex County)
The supervisor’s clerk did not maintain complete, accurate and timely accounting records and the supervisor did not provide sufficient oversight of the clerk’s accounting duties. The town’s accounting records did not agree with the amounts reported on its 2013 and 2014 annual financial reports.

Upper Mohawk Valley Memorial Auditorium Authority – Procurement (Oneida County)
The two procurement policies in effect during the audit period did not provide adequate guidance for purchases when competitive bidding was not required. Auditors found authority officials did not obtain required quotes for eight purchases totaling $140,737.

Family Medical Leave Act [FMLA] postings from selected LawBlogs

Family Medical Leave Act [FMLA] postings from selected LawBlogs
Click on text highlighted incolor to access the posting 

Source: FMLA Law News Update: Posted by fmlalawMarch 11, 2016 

Employment – FMLA – Retaliation

Massachusetts Lawyers Weekly
Where a jury found for a plaintiff on a retaliation claim under the Family and Medical Leave Act, the evidence was sufficient to support that finding.

FMLA and ADA Interplay Quiz: Reinstatement after leave

Compensation.BLR.com
A workplace scenario where the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) may both apply.

New York Daily News Readers split on paid family leave
Rochester Business Journal
Of the 53 percent who favor paid family leave, 28 percent support paid family leave law for New Yorkif it aligns with the federal FMLA provisions.