New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending April 8, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending April 8, 2017

Source: Office of the State Comptroller

Woman convicted of stealing over $290,000 from the Buffalo Firemen's Pension Fund

Comptroller DiNapoli and A.G. Schneiderman announce felony conviction of woman who stole over $290,000 in deceased mother's benefits from the Buffalo Firemen's Pension Fund. 

Pearlann MacVittie of West Seneca, New York, was conviceted of the crime of Grand Larceny in the Third Degree, a class D felony. MacVittie pleaded guilty before the Hon. Kenneth F. Case in Erie County Court. She admitted that she had stolen benefits from the city of Buffalo Firemen's Pension Fund that were intended for her late mother, who died in 1983.

According to the investigators, Lola Martin, the mother of defendant Pearlann MacVittie, was the widow of Buffalo fireman William J. Martin. After her husband's death, Lola Martin was eligible for his Firemen's Pension Fund benefit from the city of Buffalo during her lifetime. The Buffalo Firemen's Pension Fund is administered by the city of Buffalo and is not part of the New York State and Local Retirement System.

Lola Martin died on September 10, 1983. MacVittie failed to notify the Buffalo Firemen's Pension Fund of her mother's death, and instead continued to collect benefits to which she was not entitled. At the time of Lola Martin's death in 1983, she was receiving a pension benefit of approximately $325 per month from the Buffalo Firemen's Pension Fund. Over the next 33 years, the monthly benefits increased, and by 2016 MacVittie was illegally collecting $935 per month. The total amount stolen by MacVittie from October 1983 through May 2016 was $291,070.

MacVittie's decades-long fraud was uncovered by an audit and investigation conducted by the New York State Comptroller's Office. When confronted with the evidence of her theft, MacVittie admitted that she knew that she was not entitled to the pension benefits after her mother died, and that she had falsely signed her mother's name on yearly Acknowledgments of Pension Benefit forms, making the handwriting look shaky so that it appeared someone older had signed the form.

As part of her plea today to Grand Larceny in the Third Degree, MacVittie signed a confession of judgment for the entire amount stolen. MacVittie, 73, is scheduled to be sentenced to five years' probation on June 22 at 9:30 a.m.

Today's convictions are the result of an investigation conducted by the State Comptroller's Office and the Attorney General's Criminal Enforcement and Financial Crimes Bureau. This case is the latest joint investigation under the Operation Integrity partnership of the Attorney General and Comptroller, which to date has resulted in dozens of convictions and more than $11 million in restitution.

This case is being prosecuted by Assistant Attorney General Diane LaVallee of the Criminal Enforcement and Financial Crimes Bureau. The Criminal Enforcement and Financial Crimes Bureau is led by Acting Bureau Chief Stephanie Swenton.

The Attorney General's investigation was conducted by Senior Investigator Sandra Migaj, under the supervision of Supervising Investigator Richard Doyle and Deputy Bureau Chief Antoine Karam. The Investigations Bureau is led by Chief Dominick Zarrella.

The Comptroller's investigation was conducted by the Comptroller's Division of Investigations working with the Division of Local Government and School Accountability.

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

 

Audits of the following jurisdictions completed:

Town of Fulton - Justice Court Operations

Town of Greenport– Town Clerk Operations

Town of Guilderland - Golf Course Collections

Kenilworth Fire District No. 2 - Financial Activities

Sodus Center Fire Department – Financial Activities

Town of Thurman, – Garbage Bag Inventory and Collections

Wading River Fire District– Gasoline Credit Cards

Warren County– Occupancy Tax and Weights and Measures

West Albany Fire District– Credit Card Purchases

Termination of a public officer from his or her position by operation of law

Termination of a public officer from his or her position by operation of law

Munroe v Ponte, 2017 NY Slip Op 02041, Appellate Division, Second Department

The Commissioner of the New York City Department of Correction [Department] summarily terminated Timothy Munroe, a New York City Correction Officer, from his position pursuant to Public Officers Law §30(1)(e) following Munroe's conviction of a misdemeanor, falsifying business records in the second degree.

POL §30(1)(e) provides for the dismissal of a public officer "by operation of law" upon the officer's conviction of a felony, or a crime involving a violation of his oath of office.

Munroe was served with disciplinary charges in March 2009 alleging that he left his assigned post without permission and had "an undue relationship" with an inmate and making "false entries in the . . . enhanced security post logbook." In October 2009, Munroe was indicted on several charges, including falsifying business records in the second degree and attempted assault in the third degree and in 2013 he was convicted of violating Penal Law § 175.05[1], falsifying business records in the second degree.

Notified in February 2014 that his employment was terminated pursuant to Public Officers Law §30(1)(e), in August 2014 Munroe initiated a CPLR Article 78 action alleging, among other things, that his termination was arbitrary and capricious. The Department moved to dismiss the petition on the grounds that the petition failed to state a cause of action and that the proceeding was time-barred.

Supreme Court granted the Department's motion on the ground that the proceeding was time-barred, and dismissed the proceeding. The Appellate Division affirmed Munroe's termination but "on a different ground than that relied upon by the Supreme Court."

After explaining why Munroe's Article 78 action was not untimely, the Appellate Division ruled that "[p]ursuant to Public Officers Law §30(1)(e), an office is deemed vacant upon an officer's "conviction of a felony, or a crime involving a violation of his [or her] oath of office".]*

Citing Feola v Carroll, 10 NY3d at 573, the Appellate Division said that "Summary dismissal is . . . justified in circumstances where [a] misdemeanor for which the officer is convicted demonstrat[es] a lack of moral integrity,' namely, one that involves a willful deceit or a calculated disregard for honest dealings.'"  In this instance, said the court, Munroe was convicted of falsifying business records in the second degree, a class A misdemeanor, an offense involving willful deceit, and which resulted in the "automatic vacatur of his position pursuant to Public Officers Law §30(1)(e)."

The Appellate Division ruled that under the circumstances in this case Munroe's Article 78 petition failed to set forth allegations sufficient to make out a claim that his termination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion.

* Although not all public employees are public officers, all public officers are public employees.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02041.htm

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Public policy prohibits an employer from bargaining away its right to remove employees meeting the plain and clear statutory requisites for termination

Public policy prohibits an employer from bargaining away its right to remove employees meeting the plain and clear statutory requisites for termination
Enlarged City Sch. Dist. of Middletown N.Y. v Civil Serv. Empls. Assn., Inc., 2017 NY Slip Op 02421, Appellate Division, Second Department

In this appeal the issue concerned the court's granting of a permanent stay of arbitration of a grievance alleged to have violated a term or condition of the controlling collective bargaining agreement pursuant to CPLR Article 75.

The geneses of the grievance was the termination of an employee pursuant to §71 of the Civil Service Law. §71 provides for Workers' Compensation Leave and authorizes the termination of an individual on such leave after he or she has been "... out of work for a cumulative period of one year or longer.*  The employee, a member of the collective bargaining unit represented by the Civil Service Employees Association [CSEA] contended that his termination while on §71 leave violated certain terms and conditions of the collective bargaining agreement. Ultimately CSEA demanded that the employee's grievance be submitted to arbitration.

Supreme Court denied the school district's petition seeking a permanent stay of the arbitration. The district appealed, contending that submitting the subject matter of the dispute to arbitration was prohibited by public policy. The Appellate Division granted the school district a temporary stay of the arbitration proceeding and ultimately held that "the Supreme Court should have granted the district's petition to permanently stay arbitration."

The Appellate Division explained that although the general policy with respect to collective bargaining agreements favors the resolution of disputes by arbitration, some matters, because of competing considerations of public policy, cannot be heard by an arbitrator and "[p]reemptive judicial intervention in the arbitration process is warranted where the arbitrator [cannot] grant any relief without violating public policy."

Citing Economico v Village of Pelham, 50 NY2d 120 [overruled on other grounds, Matter of Prue v Hunt, 78 NY2d 364], the Appellate Division considered the allegation that the employee's termination was in contravention of his rights under a collective bargaining agreement.

In Economico the issue concerned the termination of a permanent employee on the Civil Service Law §72, Leave for Ordinary Disability, pursuant to §72.4  of the Civil Service Law.  §72.4  provides for such termination at the discretion of the appointing authority in accordance with the provisions of §73 of the Civil Service Law. The Court of Appeals held that "public policy prohibits an employer from bargaining away its right to remove those employees satisfying the plain and clear statutory requisites for termination" set out in §72 pursuant to §73.

While §72.4 provides that an employee continuously absent from work for one year or longer pursuant to §72 as the result of a non-work related disability or disease, §71 provides that a public employer may terminate an employee who is absent due to an occupational disability for a cumulative period of one year**  or longer at the discretion of the appointing authority if the employee is physically or mentally unable to return to work.

The Appellate Division concluded that both §71 and §72.4 of the Civil Service Law establish "the point at which injured civil servants may be replaced," as they "strike a balance between the recognized substantial State interest in an efficient civil service and the interest of the civil servant in continued employment in the event of a disability." Thus, said the court, for the same reason that "public policy was implicated in Matter of Economico v Village of Pelham," i.e., the abrogation of the authority granted to a public employer by §72.4 to terminate the disabled employee, "it is implicated in the instant matter," termination of the disabled employee as authorized by Civil Service Law §71.

The Appellate Division said that as an arbitrator would not be able to fashion a remedy that would not violate public policy in this instance, a preemptive stay of arbitration with respect to the employee's grievance is not improper.

N.B. It should be noted that termination pursuant to §71 or §73 is not a pejorative dismissal. An individual terminated from such a leave may, within one year after the termination of his or her disability, apply to the civil service department or municipal commission having jurisdiction over the position last held by the employee for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission and if found medically and physically qualified, he or she is eligible for reinstatement or other relief as provided by law. 

* See Duncan v NYS Developmental Center, 63 NY2d 128

** Where an employee has been separated from the service by reason of a disability resulting from an assault sustained in the course of his or her employment, he or she shall be entitled to a §71 leave of absence for at least two years, unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02421.htm

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Unemployment Insurance Appeal Board entitled to determine reasons for dismissing an employee constituted disqualifying misconduct for purposes of eligibility for unemployment insurance benefits

Unemployment Insurance Appeal Board entitled to determine reasons for dismissing an employee constituted disqualifying misconduct for purposes of eligibility for unemployment insurance benefits

Matter of Telemaque (Commissioner of Labor), 2017 NY Slip Op 02109, Appellate Division, Third Department

Veronica Telemaque, an absent reserve teacher for 20 years, was served with disciplinary charges pursuant to Education Law §3020-a for allegedly engaging in misconduct, conduct unbecoming and, or, insubordination and violating the employer's rules. Based upon the Hearing Officer's findings and recommendation, Telemaque was found guilty of the charges and was terminated from her position.

Telemaque then applied for unemployment insurance benefits but her application for such benefits was rejected by the Unemployment Insurance Appeal Board on the ground that she had lost her employment due to her misconduct. Telemaque appealed the Board's determination to the Appellate Division but the court sustained the Board's ruling,

Indicating that "It does not appear that [Telemaque] appealed that disciplinary determination," the Appellate Division ruled that Telemaque's challenges to the merits of the disciplinary determination resulting in her termination may not be raised in her unemployment insurance proceeding.

Further, said the court, the record indicated that Telemaque was [1]  represented by an attorney at the disciplinary hearing who had the opportunity to present evidence and witnesses and to cross-examine the employer's witnesses, and [2] Telemaque had "testified at length" with regard to the charges filed against her at the disciplinary hearing.

The Appellate Division explained that as Telemaque "had a full and fair opportunity to litigate the charges of misconduct at [the disciplinary] hearing," the Unemployment Insurance Appeal Board "properly gave collateral estoppel effect to the Hearing Officer's factual determinations."

Further, said the court, "having properly taken into account those factual findings with regard to [Telemaque's] misconduct, the Board was entitled to make its own independent conclusions as to whether her behavior constituted disqualifying misconduct for purposes of unemployment insurance benefits."

As actions detrimental to an employer's interests and violating the employer's known policies and threatening behavior have been recognized as disqualifying misconduct, the Appellate Division held that the Board's decision to give collateral estoppel effect to the factual findings in the disciplinary determination was not affected by an error of law and its determination that Telemaque had committed disqualifying misconduct was supported by substantial evidence. Accordingly, said the court, the Board's determination "will not be disturbed."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02109.htm

The Commissioner of Education does not have jurisdiction to remove trustees or employees of public library

The Commissioner of Education does not have jurisdiction to remove trustees or employees of public library

Decisions of the Commissioner of Education, Decision #17060

In this appeal the applicant asked the Commissioner of Education to remove "the Library Director and the Board of Trustees" of a public library pursuant to Education Law §306. 

The Commissioner said this aspect of the applicant's appeal "must be dismissed for lack of subject matter jurisdiction," explaining that Education Law §306 authorizes the Commissioner of Education to remove members of a board of education, superintendents and other school officers for willful violations of law or neglect of duty. 

However, said the Commissioner, a public library trustee or a Library Director is not a “school officer” as defined in Education Law §2(13) and such personnel are not among the officers listed in §306.  Accordingly public library personnel are not subject to removal by the Commissioner pursuant to Education Law §306.

The Commissioner then observed that a trustees of a public library, as the trustees of an education corporation, may be removed for misconduct or neglect of duty by the Board of Regents pursuant to Education Law §226(4). *

As to the Commissioner's authority with respect have jurisdiction over a "school officer," the decision notes that Education Law §2[13] defines the term school officer as follows: " The term 'school officer' means a clerk, collector, or treasurer of any school district; a trustee; a member of a board of education or other body in control of the schools by whatever name known in a union free school district, central school district, central high school district, or in a city school district; a superintendent of schools; a district superintendent; a supervisor of attendance or attendance officer; or other elective or appointive officer in a school district whose duties generally relate to the administration of affairs connected with the public school system.”

* An employee of a public library may be terminated from his or her position or otherwise disciplined by the trustees of a public library acting in their capacity as the appointing authority consistent with administrative due process.

Decision #17,060 is posted on the Internet at: 

http://www.counsel.nysed.gov/Decisions/volume56/d17060

Failure to comply with emergency leave regulations

Failure to comply with emergency leave regulations

Click on text highlighted in color  to access the full text of the decision

New York City Office of Administrative Trials and Hearings [OATH]  Administrative Law Judge Astrid B. Gloade recommended a 63 day suspension without pay, nine days for each proven charge, for a sanitation worker who failed to comply with emergency leave regulations on seven occasions.

The worker requested emergency leave three times due to car trouble, twice for emergency child care leave, and twice due to plumbing issues. On each occasion the worker failed to submit required documentation regarding his leave requests.

Due to the worker’s extensive disciplinary history, mostly for violating time and leave rules, Judge Gloade reasoned that a penalty at the highest end of the range imposed under similar circumstances was appropriate.

Dep’t of Sanitation v. Perez, OATH Index No. 370/17 (Jan. 20, 2017), modified on penalty, Comm’r Dec. (Feb. 7, 2017) (Commissioner imposed penalty of termination of employment).

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