Complimentary webinar “Avoiding and managing the threats of ransomware attacks” scheduled to be held on June 28, 2016

Complimentary webinar “Avoiding and managing the threats of ransomware attacks” scheduled to be held on June 28, 2016

Source: NYMuniblog

Ransomware computer attacks are potential disruptors of a organization’s operations. The consulting subsidiary of Harris Beach PLLC, HB Solutions LLC, will hold a complimentary webinar June 28, 2016, focusing on avoiding and managing the threats of ransomware attacks.

Click on HB Solutions Data Privacy and Cybersecurity Team for information about this  program which is being held in conjunction with Access Advisory Group, leaders in cyber protection technology.

For additional information about the webinar and a link to register for the event, click on

http://hbsolutions.com/wp-content/uploads/Ransomware-Would-You-Trust-a-Thief.pdf

Rather than relying on selective information supplied by the employer, the court itself should review the challenged investigative report relied on by the employer

Rather than relying on selective information supplied by the employer, the court itself should review the challenged investigative report relied on by the employer

2016 NY Slip Op 04422, Appellate Division, Second Department

The petitioner [Petitioner], a tenured teacher, filed a complaint with her employer, a school district, alleging that two teachers in her department were bullying and harassing her. 

Following a preliminary investigation of the complaint by the School District’s Director of Human Resources, the School Board [Board] retained an attorney to conduct an investigation and prepare a written report for the Board's consideration.

Ultimately the Board determined that there was insufficient evidence to conclude that the alleged misconduct rose to the level of "harassment, bullying, discriminatory behavior and/or hostile environment" toward Petitioner.*

Petitioner then commenced a CPLR Article 78 proceeding to review the Board's determination and to compel the production of the investigation report submitted to the Board by the attorney.

Supreme Court denied Petitioner’s motion to annul the Board's determination, but, determining that the Board and the School District had waived any attorney-client privilege as to the investigation report, granted that branch of her petition seeking to compel the production of the report. Both parties appealed from the respective portions of the judgment adverse to them.

The Appellate Division ruled that “under the circumstances,” Supreme Court should have reviewed the investigation report in camera* before determining whether the Board's determination was arbitrary or capricious rather than relying on selective information submitted by the Board and the School District.

Further, said the court, Supreme Court also erred in determining that the Board and the School District had waived the attorney-client privilege with respect to the investigation report without first conducting an in camera review of the report.

Reversing the Supreme Court’s judgment “insofar as appealed and cross-appealed” the Appellate Division remitted the matter to the Supreme Court to conduct an in camera review of the investigation report and then to make a new determinations of the branches of the petition seeking to annul the Board's determination and to compel disclosure of the investigation report.

* The Appellate Division’s decision states that the Board noting that “… the relationship between [Petitioner] and the two other teachers had become an impediment to the effective operation of the …  department … directed the school's administration to take appropriate remedial action, including conducting workplace sensitivity training.

** A review of documents by the court in his or her chambers.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04422.htm

Challenging the denial of a Freedom of Information Law request on the representation that the records are exempt from disclosure

Challenging the denial of a Freedom of Information Law request on the representation that the records are exempt from disclosure

2016 NY Slip Op 04417

The petitioner [Petitioner] in this CPLR Article 78 action had filed a Freedom of Information Law [FOIL] request with the custodian of police department records relating to a recent criminal investigation of allegations concerning events that occurred more than 25 years ago. The custodian of the records denied the request, claiming that the entire case file was exempt from FOIL disclosure.

After an unsuccessful administrative appeal, Petitioner initiated litigation to compel the custodian to produce the case file. Supreme Court denied the petition and dismissed the proceeding. Petitioner appealed the Supreme Court’s decision.

The Appellate Division commenced its review of the Petitioner’s appeal by noting:

1. In a proceeding pursuant to CPLR Article 78 to compel the production of material pursuant to FOIL, the custodian of the records denying access has the burden of demonstrating that the material requested falls within a statutory exemption, which exemptions are to be narrowly construed;

2. The denial requires the entity resisting disclosure to articulate a particularized and specific justification for denying access and conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed; and

3. If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera* inspection of representative documents and order disclosure of all nonexempt, appropriately redacted, material.

The Appellate Division also noted that Public Officers Law §87(2)(a) provides that a custodian may deny access to records or portions thereof that "are specifically exempted from disclosure by state** or federal statute" while Civil Rights Law §50-b(1) provides a statutory exemption from disclosure for documents that tend to identify the victim of a sex offense. 

However, said the court, Civil Rights Law §50-b(1) "does not justify a blanket denial of a request for any documents relating to a sex crime. If a requested document does not contain information that tends to identify the victim of a sex crime, and the FOIL request is otherwise valid, the document must be disclosed." Further, the custodian must make a particularized showing that “the statutory exemption from disclosure pursuant to Civil Rights Law §50-b(1) applies to all the records that the petitioner seeks.”

The Appellate Division said that Supreme Court should have conducted an in camera inspection to determine whether the entire case file falls within the exemption from disclosure of Civil Rights Law §50-b(1) as any document in the case file containing identifying information is protected by Civil Rights Law §50-b(1) would be categorically excluded in its entirety and not subject to redaction or deletion.

Accordingly, the Appellate Division remanded the matter to Supreme Court for a new determination based upon the court’s in camera inspection of the records claimed to be exempt from disclosure.  

* An inspection of the documents is to held by the judge in his or her private chambers.

** 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 unless the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the information. 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 FOIL exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04417.htm

Governor Cuomo asks to Port Authority officials to investigate an alleged closure of a Lincoln Tunnel lane for other than official purposes

Governor Cuomo asks to Port Authority officials to investigate an alleged closure of a Lincoln Tunnel lane for other than official purposes

Source: Office of the Governor

On June 21, 2016, Governor Andrew M. Cuomo sent a letter to Port Authority of New York and New Jersey Chairman John Degnan, Vice Chairman Steven Cohen and Executive Director Patrick Foye regarding a reported lane closure in the Lincoln Tunnel.

Governor Cuomo wrote:

Dear Chairman Degnan, Vice Chairman Cohen and Executive Director Foye:

In recent court papers detailing corruption charges against members of the New York City Police Department, it was noted that a businessman “using his connections in local law enforcement agencies, was able to arrange for the closure of a lane in the Lincoln Tunnel and a police escort down that lane for a businessman visiting the United States.” If this is true, it is deeply troubling.

I am hereby directing the New York State and Port Authority Offices of the Inspector General to conduct a thorough examination of what, if any, role agents of the Port Authority played in the circumstances associated with these allegations. The NYPD has no jurisdiction within the tunnels boundaries. If members of the Port Authority or PAPD participated in any fashion – through purpose or neglect – the State will deliver immediate and severe consequences.

The State of New York holds the integrity of public service to the highest standard. When those who are sanctioned to uphold the law use their position for personal gain, it threatens all of us. We will simply not allow Port Authority facilities to be chips in some nefarious pattern of deceit.

Please ensure you are coordinating with the U.S. Attorney for the Southern District of New York and the Federal Bureau of Investigation before commencing any action.

Sincerely,

Andrew M. Cuomo

Governor Cuomo’s letter is posted on the Internet at:

https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/PortAuthorityLetter06.21.2016.pdf

Removing a town, village, improvement district or fire district officer, other than a justice of the peace, from his or her office

Removing a town, village, improvement district or fire district officer, other than a justice of the peace, from his or her office

2016 NY Slip Op 04420, Appellate Division, Second Department

The Village Board [Village] adopted a resolution appointing its Village Clerk/Treasurer [Clerk] for a two-year term. Village subsequently advised Clerk that it had suspended her with pay following her arrest for allegedly “shoplifting” and ultimately adopted a resolution terminating Clerk's “employment by the Village.”

Clerk commenced a CPLR Article 78 action seeking a court order compelling Board to reinstate her to her office retroactively with full back pay, alleging, among other things, that Village’s action terminating her from office was arbitrary and capricious, and in violation of Public Officers Law §36. Village answered the petition and subsequently moved to dismiss the proceeding.

Supreme Court, without deciding the merits of Clerk’s petition, determined that the Village did not raise any objections in point of law that could terminate the entire proceeding, denied the Village's motion to dismiss Clerk’s petition and transferred the proceeding to the Appellate Division.

The Appellate Division opined that, as the challenged determination by Village was not made after a quasi-judicial evidentiary hearing, Supreme Court erred in transferring the matter to it. However, “in the interest of judicial economy,” the court elected to retain jurisdiction and determine the issues raised by Clerk on their merits.

Considering the relevant law, the Appellate Division ruled that Village lacked the authority to remove Clerk, a Village officer, from her position by adopting a resolution to that effect.

The court explaining that a Village officer could only be removed from his or her office in accordance with the procedure set forth in Public Officers Law §36, noting that §36 provides, in relevant part, that any Village officer "may be removed from office by the supreme court for any misconduct . . . An application for such removal may be made by any citizen resident of such . . . village . . . or by the district attorney of the county in which such . . . village . . . is located, and shall be made to the appellate division."

Further, §36 provides that “Such application [to the Appellate Division in the appropriate judicial department] shall be made upon notice to such officer of not less than eight days, and a copy of the charges upon which the application will be made must be served with such notice.”

The Village’s action to terminate Clerk from her public office by adopting a resolution so doing was, in effect, a nullity as Village lacked the authority to remove Clerk from her public office by resolution. As no application to the Appellate Division to remove Clerk from her office had been made as mandated by Public Officers Law §36, the Appellate Division granted Clerk’s petition to the extent that Village’s action was annulled and the matter remitted to the Supreme Court to determine the appropriate remedy.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04420.htm

_______________

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

_______________

If a State Department’s policy memorandum constitutes a "rule or regulation" within the meaning of the State’s Constitution it must be filed with the Secretary of State before it can have the force and effect of law

If a State Department’s policy memorandum constitutes a "rule or regulation" within the meaning of the State’s Constitution it must be filed with the Secretary of State before it can  have the force and effect of law

Plainview-Old Bethpage Congress of Teachers v New York State Health Ins. Plan, 2016 NY Slip Op 04473, Appellate Division, Third Department

[See, also, 2016 NY Slip Op 04472, http://www.nycourts.gov/reporter/3dseries/2016/2016_04472.htm, granting NYSHIP’s motion to reargue the court’s decision.]

Roslyn Teachers Assn. v New York State Health Ins. Plan, 2016 NY Slip Op 04475, Appellate Division, Third Department*

[See, also, 2016 NY Slip Op 04474, http://www.nycourts.gov/reporter/3dseries/2016/2016_04474.htm, granting NYSHIP’s motion to reargue the court’s decision.]*

While the Plainview-Old Bethpage Central School District [School District], a participating employer in the New York State Health Insurance Program [NYSHIP] administered by the New York State Department of Civil Service, was negotiating the terms of new collective bargaining agreements with the Plainview-Old Bethpage Congress of Teachers and its Clerical Unit and Teachers Unit, [Association], the Department of Civil Service issued its "Policy Memorandum No. 122r3" [Memorandum], which limited the circumstances under which an employee of a participating employer such as the School District may decline NYSHIP coverage in exchange for a cash payment.

Although earlier collective bargaining agreements between the parties had included such a "buyout program," the School District took the position that the buyout program was required to conform to the new restrictions set forth in the Memorandum.

In response to the position taken by the School District, the Association commenced a combined CPLR Article 78 proceeding and action for declaratory judgment seeking, among other things, a judicial declaration that the Memorandum is null and void. NYSHIP and the Department of Civil Service [the State] moved for summary judgment.

Supreme Court denied the State’s motion, granted the Association’s petition declaring the Memorandum null and void, and remitted the matter to the State for further action. The State appealed.

In an earlier, and similar action, the Appellate Division, School Administrators Association of New York v New York State Department of Civil Service, 124 AD3d 1174, the State had argued that School Administrators' claims were barred by the four-month statute of limitations. In response to the State’s argument that the Association’s claim was similarly untimely, the Appellate Division ruled that the Association had advanced an argument regarding the timeliness of their challenge that was not before the court in School Administrators.

Here, said the Appellate Division, the Association contended the Memorandum was, in fact, a new, formal rule governing employee eligibility for the NYSHIP buyout program. Thus, argued the Association, its provisions are unenforceable because, among other things, it was not filed with the Department of State in accordance with the mandates of the State’s Constitution** and Executive Law §102[1][a]).

In the words of the Appellate Division, “… the resolution of the [Association's] challenge hinges on whether the policy memorandum is more properly characterized as a rule or regulation, or as an interpretive statement or general policy which are not subject to constitutional and statutory filing requirements.”

The court explained that a rule or regulation is "a fixed, general principle to be applied by an administrative agency without regard to other facts and circumstances relevant to the regulatory scheme of the statute it administers." Interpretive statements and guidelines, in contrast, merely assist agency officials in exercising some aspect of their discretionary authority granted by existing statutes and regulations but do not have, in and of themselves, the force and effect of law.

The primary difference between a rule or regulation and an interpretive statement or guideline, said the court, is that the former “set standards that substantially alter or, in fact, can determine the result of future agency adjudications” while interpretive statements and guidelines simply provide additional detail and clarification as to how such standards are met by the public and upheld by the agency.”

The Appellate Division found that the Memorandum constituted a "rule or regulation" within the meaning of Article IV, §8 of the State Constitution and Executive Law §102 and thus it is “invalid and without effect” until it is filed with the Department of State.

As the State did not comply with this filing requirement, it follows that the statute of limitations never commenced to run on the Association’s claims.

Accordingly, the Appellate Division sustained Supreme Court's determination.

* In Roslyn, which the Appellate Divisions characterized as a case that is virtually indistinguishable from Matter of Plainview-Old Bethpage Congress of Teachers v New York State Health Insurance Plan, 2016 NY Slip Op 04473, [see above], the court said that the new restriction that the policy memorandum imposes on eligibility for the NYSHIP buyout program constitutes "a firm rigid, unqualified standard or policy" that effectively "carves out a course of conduct for the future.” Accordingly the policy memorandum constituted a "rule or regulation" within the meaning of Article IV, §8 New York State’s Constitution and Executive Law §102(1)(a) and, thus, is not effective until it is filed with the Department of State. The Roslyn decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2016/2016_04475.htm

** Article IV, §8 of the State Constitution provides that “No rule or regulation made by any state department, board, bureau, officer, authority or commission, except such as relates to the organization or internal management of a state department, board, bureau, authority or commission shall be effective until it is filed in the office of the department of state. The legislature shall provide for the speedy publication of such rules and regulations by appropriate laws.”

The Plainview-Old Bethpage Congress of Teachers decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2016/2016_04473.htm

Selected reports issued by the Office of the State Comptroller during the week ending June 18, 2016

Selected reports issued by the Office of the State Comptroller during the week ending June 18, 2016

Click on text highlighted in color to access the entire report 

New York State Comptroller Thomas P. DiNapoli’s office completed audits of the following school districts

These audits, summaries of which are set out below, are designed to assist schools improve their financial management practices and ensure proper policies and procedures are in place to protect public funds from waste, fraud and abuse. For additional background or a comment on a specific audit, contact Brian Butry, 518-474-4015 at the Office of the State Comptroller or email: bbutry@osc.state.ny.us 


Addison Central School District – Financial Condition (Steuben County)
During the last three completed fiscal years (2012-13 through 2014-15), the board and district officials overestimated general fund appropriations by $7.3 million (9 percent) resulting in combined operating surpluses totaling $6.4 million. District officials used the operating surpluses to make interfund transfers totaling approximately $4 million and increase reserves by $1.6 million. As a result, four reserves with balances totaling $2.9 million (48 percent of total reserves) are overfunded and potentially unnecessary. In addition, $570,000 in appropriated fund balance was not needed to finance operations. These practices allowed the district to report year-end unrestricted fund balance at levels that essentially complied with the statutory 4 percent fund balance limit. However, the district’s recalculated unrestricted fund balance ranged between 16 to 18 percent of the ensuing year’s appropriations. As a result, the district’s tax levy was higher than necessary to fund operations.

Cattaraugus-Little Valley Central School District – Financial Management (Cattaraugus County)
The unrestricted fund balance for the district has consistently exceeded Real Property Tax Law limits. The district’s unrestricted fund balance was approximately $3.6 million (14 percent of the ensuing year’s budget) or approximately $2.6 million over the legally allowable limit and is projected to remain at nearly the same level at the end of 2015-16. Although the board and district officials annually appropriated a portion of fund balance towards the subsequent year’s budget, the total amounts appropriated were mostly not used because district officials overestimated appropriations. In addition, district officials consistently budgeted for expenditures that could have been paid for with reserve funds. Had district officials retained the same tax levy each subsequent year as in 2012-13, residents could have realized approximately $410,000 in cumulative tax savings.

Delaware Academy Central School District at Delhi – Fund Balances (Delaware County)
Each year during the audit period (July 1, 2014 through November 9, 2015), district officials appropriated more fund balance than needed, which artificially reduced unrestricted fund balance to within the 4 percent statutory limit percentage. Instead of having operating deficits totaling $2.8 million for the period, as planned, the district’s net result of operations was a surplus of $705,000. In addition, district officials overfunded five of the six reserves as of June 30, 2015. Moreover, district officials did not use debt service funds to make payments on long-term debt. With the inclusion of the unused appropriated fund balance, the overfunded reserves and the unused debt service funds, the fund balance for the five years ranged from 26.7 percent to 29.4 percent of the ensuing year’s appropriations.

Lake Placid Central School District – Claims Auditing (Essex County)
Although claims were generally supported by adequate documentation and were for appropriate purposes, they were not always audited and approved prior to payment. The business manager, who also serves as the district’s treasurer, prints signed checks prior to the claims auditor’s audit and approval of the corresponding claims. When signed checks are generated prior to the claims auditor’s audit and approval, there is an increased risk that improper claims could be paid by the district.

North Rose-Wolcott Central School District – Financial Management (Wayne County)
The district has no written plan that details the appropriate and necessary levels for reserve funds and prescribes how the reserve fund balances are to be monitored, analyzed and maintained. As a result, four of the district’s 11 reserve funds, totaling more than $6.8 million, may be overfunded or unnecessary. Additionally, district officials have not developed formal multiyear financial or capital plans, which would greatly benefit it in meeting its current and future obligations.

Pembroke Central School District – Financial Management (Genesee County)
The board and district officials consistently overestimated appropriations. When the appropriated fund balance not needed to finance operations is included in unrestricted fund balance, the district’s recalculated unrestricted fund balance from 2012 to 2014 ranged from approximately $2 million (9 percent) to $2.2 million (11 percent), exceeding the statutory limit. This trend is projected to continue through 2015-16. The board and district officials have not properly managed four reserves that appear to be overfunded or contain funds that are improperly restricted by approximately $7.6 million, which is approximately 35 percent of 2015-16 budgeted appropriations. District officials also consistently budgeted for expenditures that could have been paid for with reserve funds. Had district officials maintained the same tax levy as in 2012-13, residents could have realized approximately $720,000 in cumulative tax savings.

Pulaski Central School District – Financial Condition (Oswego County)
The board consistently overestimated appropriations in the district’s adopted budgets. Although the district reported year-end unrestricted general fund balance at levels that essentially complied with the 4 percent statutory limit, the board adopted budgets which included appropriated fund balance and reserves that were not needed as funding sources because the board and district officials overestimated appropriations by an average of 8.8 percent over the last three fiscal years. As a result, the district experienced an operating surplus in 2011-12 and operating deficits in 2012-13 and 2014-15 that were significantly less than planned. When the unused appropriated fund balance was added back, recalculated unrestricted fund balance averaged about 8 percent of the ensuing year’s appropriations exceeding the legal limit.

Sackets Harbor Central School District – Financial Condition (Jefferson County)
The board has consistently overestimated appropriations in its adopted budgets by about 9 percent over the past three years. As a result, a significant portion of the fund balance appropriated in the general fund was not needed to finance operations and unassigned fund balance has exceeded the 4 percent legal limit from fiscal years 2012-13 through 2014-15. The district has reduced the reported level of year-end unassigned fund balance from 12 percent of the ensuing year’s budget at the end of 2012-13 to 8.6 percent at the end of 2014-15. However, when the unused appropriated fund balance was added back, the recalculated unassigned fund balance exceeded 15 percent of the next year’s appropriations in all three years.

Somers Central School District – Fixed Assets (Westchester County)
Although the district has procedures specific to the maintenance of IT inventory, the board has not adopted an asset policy establishing capitalization or tagging thresholds, control over assets, or how to maintain records for these assets. Consequently, three assets valued at $1,650 could not be located and 21 assets valued at $69,370 were either not tagged or the asset tag numbers did not agree with the asset records. Furthermore, 10 assets purchased in 2015-16 valued at $57,573 were not recorded on the asset list and nine assets valued at $45,750 were listed as disposed of, but were still in service. Auditors found that 18 of 20 assets listed as disposed of, valued at $32,920, did not have documentation indicating authorization or approval.

South Lewis Central School District – Financial Condition (Lewis County)
The district’s unassigned fund balance has exceeded the 4 percent legal limit from fiscal years 2012-13 through 2014-15. At the end of 2014-15, the district’s fund balance was approximately $2.4 million, or 9.7 percent of the ensuing year’s appropriations. Although the district’s unassigned fund balance has exceeded the statutory limit for the past three fiscal years, the board increased the tax levy from $7.8 million in 2012-13 to $8.3 million in 2015-16, an increase of about 6 percent.

Union Springs Central School District – Retiree Health Insurance Contributions (Cayuga County)
District officials ensured that retiree health insurance contributions were properly billed, collected and deposited. Although the account clerk performs most of the duties, district officials implemented proper compensating controls to ensure bills are accurate, money is collected from all retirees and money is deposited into district bank accounts.

Watertown City School District – Financial Condition (Jefferson County)
The district has overestimated appropriations in the adopted budgets by about an average of 14 percent annually over the past three years. As a result, a significant portion of the fund balance appropriated in the general fund was not needed to finance operations and unassigned fund balance has exceeded the 4 percent legal limit each of the last three fiscal years. The district reduced the reported level of year-end unassigned fund balance from 9.3 percent at the end of 2012-13 to 6.9 percent at the end of 2014-15, but when the unused appropriated fund balance is added back, the recalculated unassigned fund balance exceeds 20 percent of the next year’s appropriations for each of the three years.

Wheelerville Union Free School District – Fund Balance (Fulton County)
The district has not correctly recorded and reported the composition of its fund balance. Since the fiscal year ending June 30, 2013, the treasurer has recorded and reported the amount of unrestricted fund balance that exceeds the statutory limit at the end of each fiscal year as “other restricted fund balance” to keep the unrestricted fund balance within the limit. This accounting practice understates the true amount of the general fund’s unrestricted fund balance and circumvents the statutory limit the district is permitted to retain. As a result, over the four past fiscal years the district retained unrestricted fund balance amounts that ranged from 15 percent to 34 percent of the ensuing year’s appropriations.

Williamson Central School District – Procurement of Professional Services (Wayne County)
Although the board has developed a purchasing policy and district officials have developed corresponding regulations, they do not provide guidance for seeking competition when procuring professional services. The policy and regulations do not indicate when, or at what monetary threshold, it is appropriate to use written requests for proposals, written quotes or oral quotes. Additionally, the policy and regulations do not outline the specific documentation requirements to be used during the solicitation process.

Willsboro Central School District – Financial Condition (Essex County)
The district has accumulated unrestricted fund balance that exceeds the statutory limit by approximately $977,000 (nearly 12 percent) and has levied more taxes than were needed to fund operations during the 2013-14 through 2015-16 fiscal years. The board also overestimated appropriations in the 2012-13 through 2014-15 budgets by more than $2.3 million (10 percent). The district’s budgeting practices made it appear that they needed to both raise taxes and appropriate fund balance and reserves to close projected budget gaps, despite an operating surplus of $51,390 during the 2012-13 fiscal year and smaller-than-planned operating deficits of $24,169 in 2013-14 and $39,578 in 2014-15. 

Daughter alleged to have stolen over $148,000 of New York State Public Employees’ Retirement System funds following her failure to report her father’s death to the System

Daughter alleged to have stolen over $148,000 of New York State Public Employees’ Retirement System funds following her failure to report her father’s death to the System

Source: Office of the State Comptroller

[N.B. The charges set out in an indictment are merely accusations and the defendant is presumed innocent until proven guilty.] 

New York State Comptroller Thomas DiNapoli and Attorney General Eric T. Schneiderman reported the unsealing of an indictment charging Renee Kanas, 63, a resident of Tamarac, Florida, with Grand Larceny in the Second Degree, a Class C felony.

Kanas is alleged to have stolen over $148,000 in pension payments from the New York State and Local Employees Retirement System paid to her father, Jacob Yudenfreund, a New York State pensioner who died in March 2010.

According to the indictment and statements made by the prosecutor at the arraignment, Kanas’ father was a New York State pensioner who elected to receive reduced monthly benefits so his wife, Doris Yudenfreund, would continue to receive benefits after his death.  Mrs. Yudenfreund, however, predeceased Mr. Yudenfreund.  As such, upon Mr. Yudenfreund’s passing in March 2010, eligibility for any of his retirement allowance terminated.  

According to the Comptroller and Attorney General, Kanas failed to notify the New York State and Local Employees Retirement System of her father’s death.  Instead, from March 2010 until January 2015, pension benefits totaling over $148,000 were deposited into a bank account jointly held by Mr. Yudenfreund and Kanas.  Kanas allegedly accessed these funds after her father’s death and liquidated all but $1,207.55 in pension benefits over that time period.

The allegations concerning Renee Kanas are posted on the Internet at::

http://www.osc.state.ny.us/press/releases/june16/061716a.htm

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse.  Individuals can report allegations of fraud involving public funds by calling the toll-free Fraud Hotline at 1-888-672-4555, by transmitting an e-mail to investigations@osc.state.ny.us, by filing a complaint online at http://osc.state.ny.us/investigations/complaintform2.htm or by mailing a complaint to Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236.

Former treasurer of a volunteer fire company indicted for wire fraud and subscribing to false tax returns

Former treasurer of a volunteer fire company indicted for wire fraud and subscribing to false tax returns

Source: Office of the State Comptroller

[N.B. The charges contained in an Indictment are merely accusations and the defendant is presumed innocent until proven guilty.]

Preet Bharara, the United States Attorney for the Southern District of New York, Thomas P. DiNapoli, New York State Comptroller, Shantelle P. Kitchen, the Special Agent in Charge of the New York Field Office of the Internal Revenue Service - Criminal Investigation (“IRS-CI”), Diego Rodriguez, the Assistant Director-in-Charge of the New York Field Division of the Federal Bureau of Investigation (“FBI”), and George Beach, Superintendent, New York State Police reported the arrest of Michael Klein, the former treasurer of the Mahopac Volunteer Fire Department (“MVFD”), on charges of wire fraud and subscribing to false tax returns.

Klein, Fire Department’s elected treasurer, is alleged to have stolen $5.7 million of the Fire Department’s monies over a period of more than 13 years.  

Details concerning the allegations involving Michael Klein are posted on the Internet at:

http://www.osc.state.ny.us/press/releases/june16/061516.htm

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse.  Individuals can report allegations of fraud involving public funds by calling the toll-free Fraud Hotline at 1-888-672-4555, by transmitting an e-mail to investigations@osc.state.ny.us, by filing a complaint online at http://osc.state.ny.us/investigations/complaintform2.htm or by mailing a complaint to Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236.

Requiring employees to submit to a “dog-sniffing test” for illegal drugs

Requiring employees to submit to a “dog-sniffing test” for illegal drugs

Correction Officers’ Benevolent Assoc. v City of New York, USDC, Southern District of New York, 15-CV-5914

The New York City Department of Corrections established a “zero tolerance” drug policy providing for the termination of any employee, uniformed (i.e., correction officers), or civilian, who violated the policy. Its justification: the policy serves important functions by acting as a deterrent against drug traffic in its facilities and ensured that “the security of penal institutions is not breached.”

A federal judge dismissed the Correction Officers’ Benevolent Association’s [COBA] challenge to the New York City's requiring its correction officers to be searched when “drug-sniffing dogs” react positively to the individual. An officer could be suspended if he or she refused to submit to the search for contraband.

Judge Alison Nathan rejected COBA’s argument that searches aided by the drug-sniffing dogs violated its members' constitutional rights as well as New York State's Civil Service Law.

Judge Nathan ruled that COBA cannot claim its member's constitutional rights were being violated by their employer’s efforts to detect individuals attempting to transport drugs into the facility in violation of the law and the controlling Collective Bargaining Agreement. The court also rejected COBA claim that “drug-sniffing dogs” could produce “false positives.”

Other decision testing New York City’s Zero Tolerance Drug Policy include:

Roberts v New York City Office of Collective Bargaining, 113 AD3d 97, [Fire Department's determination of an appropriate penalty for illegal drug use relates to its primary mission of providing public safety];

New York City Fire Department v Armbruster, OATH Index #1350/12 [Firefighter who tested positive for cocaine in a random workplace drug test failed to demonstrate that he consumed the cocaine unknowingly];

Dept. of Corrections v Robbins, OATH 2030/99, [there are instances, particularly where a civilian employee is involved, when the “automatic penalty” under the department’s zero tolerance drug policy should not be applied].

The Doctrine of Election of Remedies bars an individual from attempting to litigate a matter involving the same issue earlier adjudicated in a different forum

The Doctrine of Election of Remedies bars an individual from attempting to litigate a matter involving the same issue earlier adjudicated in a different forum

Nizamuddeen v New York City Tr. Auth., 2016 NY Slip Op 04418, Appellate Division, Second Department
Appeal of Matthew Nadolecki, Decisions of the Commissioner of Education, Decision No. 16,894, 

The New York City Transit Authority, [MTA] hired Arif Nizamuddeen as a bus operator subject to a probationary period of employment. The Nizamuddeen had notified MTA that in 2006 he had been diagnosed with non-Hodgkin's lymphoma, which was in remission, when he was selected for employment.

After numerous extensions of Nizamuddeen’s period of probation, in March 2014 MTA terminated the Nizamuddeen’s employment “due to his unsatisfactory attendance record after multiple episodes of absences from work.”

Nizamuddeen filed a complaint with the New York State Division of Human Rights [SDHR] alleging that MTA terminated his employment because of his disability in violation of Executive Law Article 15, New York State’s Human Rights Law. SDHR dismissed Nizamuddeen’s discrimination claim on the merits.*

Nizamuddeen subsequently commenced a CPLR Article 78 proceeding against MTA in the Supreme Court, asserting allegations essentially identical to those set out in the complaint he had filed with SDHR. Supreme Court denied Nizamuddeen’spetition and dismissed the proceeding on the ground that Nizamuddeen was precluded from maintaining the proceeding by the election of remedies provision in Executive Law §297(9). 

Nizamuddeen appealed the Supreme Court’s determination.

The Appellate Division sustained the Supreme Court’s ruling, explaining that Executive Law §297(9) provides that an individual claiming to be aggrieved by unlawful discrimination on the part of the employer may sue in court "unless such person had filed a complaint [with the SDHR]." Thus the individual’s filing of a complaint with SDHR precludes the commencement of an action in the Supreme Court asserting the same discriminatory acts.* Nizamuddeen, said the Appellate Division, “is barred from maintaining this CPLR Article 78 proceeding by the election of remedies doctrine because the instant claims are based on the same allegedly discriminatory conduct asserted in [Nizamuddeen’s] complaint filed with [SDHR].”

The Appeal of Matthew Nadolecki, Decisions of the Commissioner of Education, Decision No. 16,894, provides another example of the application of the Doctrine of Election of Remedies.

The Commissioner said that “It is well settled that a school employee who elects to submit an issue for resolution through a contractual grievance procedure may not bring an appeal to the Commissioner of Education for review of the same matter.”

Nadolecki brought a "Level 1" grievance in which he alleged that the district’s efforts to terminate him violated provisions set out in the controlling collective bargaining agreement and asserted that certain other contractual provisions regarding evaluations and observations were not adhered to. As relief, he sought an arbitration award directing the rescission of his termination. Both this and “the Level 2 grievance” were denied.

The Commissioner found that Nadolecki was attempting to raise the same issues in this appeal that he had raised in the contract grievance, rejecting his argument that because he only grieved school district’s “intention” to terminate his employment, he is entitled to commence an appeal on those same issues with respect to his "actual termination."  

The Commissioner explained that in his grievance Nadolecki’s claimed that the school district violated the provisions of the collective bargaining agreement and these was the same issues he presented in his appeal to the Commissioner. 

Accordingly, the Commissioner dismissed his appeal “for lack of jurisdiction,” noting that Nadolecki’sclaims “would be dismissed under the doctrine of election of remedies in any case.”  The prior commencement of an action or proceeding in another forum for the same or similar relief constitutes an election of remedies which precludes the initiation of an appeal to the Commissioner. 

* In contrast to SDHR’s dismissing Nizamuddeen’s complaint on the merits, had SDHR  dismissed his complaint for “administrate convenience” or had Nizamuddeen, prior to the hearing before the SDHR hearing officer, successfully requested that SDHR dismiss his complaint and annul his “election of remedies” to submit to the jurisdiction of SDHR, he could have pursued his Human Rights Law claim in a judicial forum.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04418.htm

Consolidation of Investigator titles in State Department and Agencies

Consolidation of Investigator titles in State Department and Agencies

New York State Department of Civil Service  

General Information Bulletin No. 16-03, Investigator Titles Consolidation

Scott DeFruscio, New York State Department of Civil Service Director of Staffing Services has posted New York State Department of Civil Service General Information Bulletin No. 16-03 explaining the changes to investigator titles described in a memorandum from the Department’s Director of Classification and Compensation dated May 20, 2016, and which took effect on June 16, 2016.

Bulletin No. 16-03 describes the Investigator series replacing the numerous titles currently in use and provides information developed to guide departments and agencies addressing the hiring and career mobility of employees in these new title series.

The result of the changes in the Investigator series on existing titles could result in a title consolidation, a reallocation, or a title change. Therefore, the impact of this change on employee mobility and eligible list usage may differ depending on relevant circumstances.

The Classification and Compensation memorandum is posted on the Internet at:

http://www.cs.ny.gov/businesssuite/News-and-Advisories/Classification-and-Compensation-Memos/index.cfm

General Information Bulletin No. 16-03 is posted on the Internet at:

https://www.cs.ny.gov/ssd/pdf/GIB16-03.pdf

 

Reimbursment of Medicare premiums paid by retirees participating in their former employer’s health insurance plan

Supreme Court, Broome County, granted Theodora Q. Bryant’s CPLR Article 78 application to annul a determination of Chenango Forks Central School District to terminate reimbursement of certain Medicare premiums.* 

The Public Employment Relations Board directed the School District to rescind its June 2003 memorandum in which it notified employees and retirees that it was terminating its practice of reimbursing Medicare Part B premiums.

In a companion case PERB ruled that the school district must reinstate its former practice of reimbursing retirees for Medicare Part B premiums -- the same relief sought in the current proceeding.

The Appellate Division noted that PERB's order in the companion case has been upheld by the Court of Appeals [see 2013 NY Slip Op 04039 (2013)]. Accordingly, Bryant received the full relief challenged by School District in the current appeal as a result of that determination, . Accordingly, the court ruled that the instant appeal is now moot.

As to argument advanced under color of an exception to the mootness doctrine, the Appellate Division held that the claimed exception “does not apply in that, although the issue advanced herein may recur and is significant, it is not likely to evade review.”

* The underlying facts are set forth in the Appellate Division’s prior decision (21 AD3d 1134 [2005]) and in the companion case brought by the Chenango Forks Central School District (Matter of Chenango Forks Cent. School Dist. v New York State Pub. Empl. Relations Bd., 95 AD3d 1479 [2012], affd ___ NY3d ___, 2013 NY Slip Op 04039 [2013]). See, also, NYPPL’s summary of that decision posted on the Internet at http://publicpersonnellaw.blogspot.com/search?q=bryant

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2013/2013_04379.htm

Health insurance company’s claim for reimbursement for certain medical cost it incurred from a “no fault” automobile insurance carrier denied

Health insurance company’s claim for reimbursement for certain medical cost it incurred from the “no fault” automobile insurance carrier denied
Aetna Health Plans v Hanover Ins. Co., 2016 NY Slip Op 04658, Court of Appeals

In this action brought pursuant to the Comprehensive Motor Vehicle Reparations Act [Insurance Law §5101, et seq. -- the "No-Fault" Law] Aetna Health Plans alleged that it paid certain bills that should have been paid by Hanover Insurance Company, the no-fault insurer involved in this action, that were submitted to Aetna by the medical providers. Ultimately Hanover refused to reimburse Aetna for all of the payments Aetna made to the medical providers.

The resolution of this action by the Court of Appeals may, under certain circumstances, impact on the administration of General Municipal Law §§207-a and 207-c with respect to medial expenses paid by a municipality on behalf of a police officer or firefighter injured in the line of duty.

Aetna, as its insured’s assignee, sued Hanover seeking a court order directing Hanover to fully reimbursement it for all of the medical expenses it paid directly to the medical providers. Hanover, in response, moved to dismiss the complaint based upon Aetna’s “lack of standing,” contending that Aetna was not entitled to direct reimbursement because, citing 11 NYCRR 65-3.11(a),* Aetna was an insurance company and not a provider of health care services. Hanover argued that the only type of assignee permitted were those set out in the regulation and Aetna was not in privity of contract with Hanover.

The Court of Appeals agreed with Hanover, holding that that the Comprehensive Motor Vehicle Reparations Act [Insurance Law §5101, et seq. -- the "No-Fault" Law] does not contemplate that reimbursement for expenses paid by a “health insurer” is to be paid to the “health insurer” in contrast to providing for such a payment to be made to a “health care provider.”

The Doctrine of Unintended Consequences might have been be triggered by this ruling.

General Municipal Law §§207-a and 207-c, respectively, provide that the employer shall be liable for the payment of the salary or wages payable to a firefighter or police officer who suffers disability as the result of an injury or disease suffered in course of performing his or her official duties and for the cost of medical or hospital care or treatment furnished such personnel until the appropriate health authority or physician shall certify that such injured or sick fireman or police officer has recovered and is physically able to perform his or her regular duties.

Further, these sections provide that “Notwithstanding any provision of law contrary thereto contained herein or elsewhere, a cause of action shall accrue to the municipality for reimbursement in such sum or sums actually paid as salary or wages and or for medical treatment and hospital care as against any third party against whom the policeman shall have a cause of action for the injury sustained or sickness caused by such third party.”

The Court of Appeals’ ruling in Aetna Health Plans could have an impact, in whole or in part, on a municipality as the police officer’s or firefighter’s employer in situations where the municipality seeks reimbursement for medical and, or, hospital expenses it incurred pursuant to the mandates of §§207-a and 207-c in providing “medical or hospital care” for police and fire personnel in situations where the Comprehensive Motor Reparations Act would otherwise be operative.

* 11 NYCRR 65-3.1, Applicability, provides that “The following are rules for the settlement of claims for first-party and additional first-party benefits on account of injuries arising out of the use or operation of a motor vehicle, a motorcycle or an all-terrain vehicle. These rules shall apply to insurers and self-insurers, and the term insurer, as used in this section, shall include both insurers and self-insurers as those terms are defined in this Part and article 51 of the Insurance Law, the Motor Vehicle Accident Indemnification Corporation (MVAIC), pursuant to section 5221(b) of the Insurance Law and any company or corporation providing insurance pursuant to section 5103(g) of the Insurance Law, for the items of basic economic loss specified in section 5102(a) of the Insurance Law;” and

11 NYCRR 65-3.11(a) provides “An insurer shall pay benefits for any element of loss other than death benefits, directly to the applicant or, when appropriate, to the applicant's parent or legal guardian or to any person legally responsible for necessities, or, upon assignment by the applicant or any of the aforementioned persons, shall pay benefits directly to providers of health care services as covered under section 5102(a)(1) of the Insurance Law, or to the applicant's employer for loss of earnings from work as authorized under section 5102(a)(2) of the Insurance Law. Death benefits shall be paid to the estate of the eligible injured person.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04658.htm

The term “race” includes ethnicity for purposes of 42 USC 1981 and Title VII

The term “race” includes ethnicity for purposes of 42 USC 1981 and Title VII

Village of Freeport and Andrew Hardwick v Barrella, USCA, Second Circuit, No. 14-2270-cv (L) et. al.

Christopher Barrella sued the Village of Freeport and its former mayor, Andrew Hardwick, [Hardwick] alleging Hardwick violated 42 USC 1981, Title VII of the Civil Rights Act of 1964, 42 USC 2000e, and the New York State Human Rights Law, New York Executive Law §290. Barrella alleged that Hardwick had not appointed him chief of police because Barrella was a white Italian-American, and that Hardwick had instead appointed a less-qualified Hispanic candidate to the position. A federal district court judge denied Hardwick’s motions for summary judgment as a matter of law. After a trial the jury returned a verdict in favor of Barrella.

Hardwick appealed the decision. The Second Circuit affirmed the judgment of the District Court insofar as it denied Hardwick's motions for summary judgment.

The Circuit Court explained that longstanding Supreme Court and Second Circuit precedents indicated that "race" includes ethnicity for purposes of  42 USC 1981, so that discrimination based on “Hispanic ancestry” or lack thereof constitutes racial discrimination under that statute. Further, said the court, "race" should be defined the same way for purposes of Title VII.

Accordingly, the Circuit Court reject Hardwick's argument that an employer who promotes a white Hispanic candidate over a white non-Hispanic candidate cannot have engaged in racial discrimination and affirmed the judgment of the District Court insofar as it denied Hardwick's' motion for judgment as a matter of law pursuant the Federal Rules of Civil procedure.

However, the Circuit Court ruled that the District Court erred in permitting "lay opinion testimony" that speculated as to Hardwick's reasons for not appointing Barrella. This, said the court, was a violation of Rule 701(b) of the Federal Rules of Evidence and because this case was factually close, this did not constitute “a harmless error.”

The judgment of the District Court was vacated and the matter remanded for a new trial consistent with the consistent with the decision of the Circuit Court of Appeals.

The decision is posted on the Internet at:

https://casetext.com/case/vill-of-freeport-andrew-hardwick-v-barrella