New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending November 26, 2016

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending November 26, 2016 

Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR.

Pre-school education providers claimed over one million dollars of unallowed expenses
Aim High Children’s Services and the Hebrew Institute for the Deaf and Exceptional Children, two Brooklyn preschool special education providers, claimed nearly $1.4 million in taxpayer reimbursements for ineligible costs, according to audits released by New York State Comptroller Thomas P. DiNapoli.


Hiring and Budgeting problems at the Brentwood Union Free School District

A pattern of poor budgeting led the Brentwood Union Free School District to accumulate excessive fund balance as well as reserve funds that surpassed board-approved amounts and have gone unused, according to an audit released by New York State Comptroller Thomas P. DiNapoli.


Former TownClerk padded her pay with town funds

State Comptroller Thomas P. DiNapoli announced the arrest of Jordan Green after an investigation and audit found that she paid herself thousands of dollars in unauthorized payroll payments. Green also had the town pay back her loans from the state’s retirement system while employed as the clerk to the supervisor for the Town of Minerva. The arrest is the result of DiNapoli's partnership with the New York State Police and Essex County District Attorney Kristy Sprague. Details are posted on the Internet at:

http://www.osc.state.ny.us/press/releases/nov16/112316a.htm?utm_source=weekly+news&utm_medium=email&utm_term=corruption&utm_content=20161127&utm_campaign=fiscal+oversight

School DistrictAudits

Bellmore-MerrickCentral High School District – Financial Condition

GouverneurCentral School District – Financial Management

IrvingtonUnion Free School District – Information Technology

NewarkCentral School District – Financial Condition and Claims Processing

Port Jervis City School District – Financial Condition

Tests applied by courts in determining if claims of unlawful discrimination and, or, retaliation can survive a motion for summary judgment

Tests applied by courts in determining if claims of unlawful discrimination and, or, retaliation can survive a motion for summary judgment

Langton v Warwick Val. Cent. Sch. Dist., 2016 NY Slip Op 07626, Appellate Division, Second Department

Patricia Langton sued the Warwick Valley Central School District to recover damages for alleged unlawful retaliation and employment discrimination on the basis of sex in violation of Executive Law §296.

Supreme Court granted the School District’s motion for summary judgment based on its finding that  the School District and its employees were not amenable to suit under Executive Law §296(3). Langon appealed the Supreme Court’s ruling.

On appeal the School District conceded that the basis for the Supreme Court's determination granting summary judgment was incorrect but, in the alternative, contended that the order granting summary judgment should nevertheless be affirmed, although on different grounds.

The Appellate Division agreed and dismissed Langon’s appeal, explaining it rulings as follows:

Regarding retaliation

The court explained that a plaintiff alleging unlawful retaliation under state or federal law must show that (1) he or she has engaged in protected activity, (2) the employer was aware that the plaintiff participated in such activity, (3) the plaintiff suffered an adverse employment action based upon his or her activity, and (4) there is a causal connection between the protected activity and the adverse action.

In order to establish its entitlement to summary judgment in a retaliation case, a defendant must [1] demonstrate that the plaintiff cannot make out a prima facie claim of retaliation or, [2] having offered legitimate, nonretaliatory reasons in rebuttal to its  challenged actions, that there exists no triable issue of fact as to whether the defendant's explanations were pretextual.

The Appellate Division ruled that in this instance the School District met its initial burden of demonstrating that the Langon could not make out a prima facie case of retaliation by showing that the School District’s actions Langon challenged were not causally connected to any protected activity in which Langon had participated. Further, said the court, Langon “failed to submit sufficient evidence from which a causal connection could be found between any protected activity in which she engaged and any adverse employment action.”

Regarding allegation of unlawful employment discrimination

Addressing Langon’s allegation that the School District had engaged in unlawful  employment discrimination, the Appellate Division explained that "[a] plaintiff alleging discrimination in employment has the initial burden to establish . . . (1) he or she is a member of a protected class; (2) he or she was qualified to hold the position; (3) he or she was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination."

If the plaintiff meets this “initial burden”, the employer must rebut the presumption of unlawful discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision.

Addressing the situation underlying Langon's appeal, the Appellate Division said that to prevail on a motion for summary judgment in a discriminatory employment action, the School District must [1] demonstrate either Langon had failed to establish every element of intentional unlawful discrimination, or, the School District, having offered legitimate, nondiscriminatory reasons for the challenged actions, [2] the absence of a triable issue of fact as to whether the explanations were pretextual.

Here, said the court, the School District met its prima facie burden by offering legitimate, nondiscriminatory reasons for its actions challenged by Langon and also by demonstrating the absence of material issues of fact as to whether its explanations were pretextual.

Accordingly, the Appellate Division held that Supreme Court properly granted the School District’s motion for summary judgment notwithstanding its being founded on a misperception of the relevant law.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_07626.htm

A police officer eligible to receive General Municipal Law §207-c benefits may file a claim against his or her employer pursuant to General Municipal Law §205-e

A police officer eligible to receive General Municipal Law §207-c benefits may file a claim against his or her employer pursuant to General Municipal Law §205-e

Diegelman v City of Buffalo, 2016 NY Slip Op 07817, Court of Appeals

General Municipal Law §205-e gives a “Right of action to certain injured or representatives of certain deceased police officers.”

In pertinent part, subdivision 1 of §205-e provides that “In addition to any other right of action or recovery under any other provision of law, in the event any accident, causing injury, death or a disease which results in death, occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus, the person or persons guilty of said neglect, omission, willful or culpable negligence at the time of such injury or death … provided, however, that nothing in this section shall be deemed to expand or restrict any right afforded to or limitation imposed upon an employer, an employee or his or her representative by virtue of any provisions of the workers' compensation law.”

The question presented in this appeal:  Is a police officer who is entitled to receive benefits under General Municipal Law §207-c for a duty-related injury is barred from bringing a claim against his or her employer under General Municipal Law §205-e?

The Court of Appeal’s response: “We conclude that, where the municipal employer has elected not to provide coverage pursuant to the Workers' Compensation Law, a police officer who suffers a line-of-duty injury caused by the employer's statutory or regulatory violations may pursue a §205-e claim.”

James R. Diegelman, a City of Buffalo police officer from 1968 until 1995, was diagnosed with mesothelioma, a cancer caused by exposure to asbestos. The alleged genesis of Diegelman’s mesothelioma: exposure to asbestos during his employment at properties owned by the City and the Buffalo Board of Education and used by the Police Department.

The Court of Appeals noted that the City of Buffalo, like many other large municipalities, elected not to provide workers' compensation benefits to its police officers and contended that General Municipal Law §207-c "is essentially a super workers' compensation scheme for police officers" and, thus, “workers' compensation exclusivity rules should apply to police officers who receive section 207-c benefits, regardless of whether they are entitled to benefits under the Workers' Compensation Law.”

However, said the court, Workers’ Compensation Law and General Municipal Law §207-c  are independent of each other and, “contrary to the City's argument that §207-c is essentially a super workers' compensation scheme,” the Workers' Compensation Law "features a more lenient and more inclusive standard of covered activity than is intended to be covered and compensated in a General Municipal Law §207-c benefits universe."

The Court of Appeals explained that "the Legislature chose different eligibility standards — 'arising out of and in the course of employment' for workers' compensation benefits [in contrast to the] 'in the performance of his [or her] duties' [standard] for section 207-c benefits."

Under these differing standards, "police … officers may be eligible for Workers' Compensation benefits as a result of circumstances that might not entitle them to General Municipal Law §207-c benefits." Indeed, said the court, "[w]orkers' compensation benefits are intended to be dispensed regardless of fault, for any injury arising out of and in the course of one's employment . . .[,] [while] [s]ection 207-c benefits . . . are more expansive, but apply to a narrower class of work-related injury, relative to the performance of law enforcement duties." Further, as "the issue involving the entitlement to benefits in the General Municipal Law setting is not . . . the same one decided in a Workers' Compensation determination" a finding by the Workers' Compensation Board that an injury is work-related cannot be given collateral estoppel effect against a municipality that denies an application for §207-c benefits.

Rejecting the City's argument General Municipal Law §207-c benefits can be equated to workers' compensation benefits for purposes of interpreting language contained in General Municipal Law §205-e, the Court of Appeals observed that “[t]he language of §205-e prohibits only recipients of workers' compensation benefits from commencing suit against their employers; it does not, by its terms, bar the commencement of suits by recipients of section 207-c benefits— which we have repeatedly recognized to be separate and distinct from workers' compensation benefits.”

The court said that it concluded that “General Municipal Law §205-e, when construed ‘in an unforced and natural manner,’ cannot be read to bar suits by recipients of General Municipal Law §207-c benefits when those police officers are employed by municipalities that have elected not to provide workers' compensation coverage.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_07817.htm

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The Disability Benefits E-book – 2016 Edition: This 814 page electronic book [e-book] focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information concerning this e-book click on: http://section207.blogspot.com/

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