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

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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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Audits and reports were issued by the New York State Comptroller during the week ending March 31, 2017

Audits and reports were issued by the New York State Comptroller during the week ending March 31, 2017
Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR

Comptroller DiNapoli & A.G. Schneiderman Announce Felony Conviction of Upstate Woman for Pension Fraud and Welfare Fraud

New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the conviction of Tammy Banack, a resident of Kirkville, New York, of the crime of grand larceny in the third degree, a class D felony. Banack pleaded guilty before Hon. Stephen J. Dougherty in Onondaga County Court in satisfaction of a five-count indictment handed up against her earlier this month charging her with stealing pension benefits issued to her deceased mother and fraudulently obtaining $19,000 in welfare benefits from the Onondaga County Department of Social Services.

Preschool Special Education Provider Received Nearly $6 Million for Ineligible Expenses

A Manhattan-based preschool for children with disabilities charged the State Education Department nearly $6 million for expenses that did not qualify for taxpayer reimbursement, State Comptroller Thomas P. DiNapoli announced. DiNapoli's auditof New York League for Early Learning Inc. focused on $138 million in expenses the school claimed for special education services over the three fiscal years ended June 30, 2014.

Comptroller DiNapoli and Mayor Brown Return Over $100,000 in Unclaimed Funds to Buffalo Residents

New York State Comptroller Thomas P. DiNapoli announced that $111,180 in unclaimed funds has been returned to Buffalo city residents since he partnered with Mayor Byron Brown on March 16 to urge people to claim their lost money. Over $88 million still remains available for residents to claim. 

New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the

East Hampton Housing Authority – Board Oversight

Eggertsville Fire District – Financial Activity

Mastic Beach Fire District - Cash Disbursements

Town of Moira – Fiscal Oversight and Selected Financial Operations

Town of Oxford – Financial Management and the

Town of Somerset - Budgeting for Sales Tax.

 

Hearing officer's applying an incorrect standard in making his or her determination requires the remanding of the matter for a new hearing

Hearing officer's applying an incorrect standard in making his or her determination requires the remanding of the matter for a new hearing

McGowan v New York State & Local Police & Fire Retirement Sys., 2017 NY Slip Op 01751, Appellate Division, Third Department

James K. McGowanworked as a police officer for the Waterfront Commission of New York Harbor. In 2010, he applied for accidental disability retirement benefits, alleging that he was permanently incapacitated from performing his job duties as the result of a work-related motor vehicle accident that occurred in 2005. His application was denied upon the ground that he was not permanently incapacitated from performing his duties as a police officer, and McGowan requested a hearing and redetermination.

The Hearing Officer upheld the denial, finding that McGowan had failed to meet his burden of establishing that he was permanently incapacitated from performing his job duties and that the initial determination was supported by substantial evidence.

The Appellate Division overturned the Comptroller's adoption of the Hearing Officer's determination. The court ruled that the Hearing Officer misstated and applied the incorrect legal standard in rendering her decision.

The Hearing Officer, said the court, improperly analyzed whether the initial determination was supported by substantial evidence, "rather than undertaking a redetermination and exercising the same powers upon such hearing as upon the original application."

As the Comptroller failed to recognize this error of law prior to adopting the Hearing Officer's decision, the Appellate Division ruled that the Comptroller's the determination must be annulled and the matter remitted to the Comptroller for a new hearing.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_01751.htm

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Appointments Pursuant to Sections 55-b and 55-c of the Civil Service Law

Appointments Pursuant to Sections 55-b and 55-c of the Civil Service Law

Source: NYS Department of Civil Service, Division of Staffing Services

NYS Department of Civil Service, Division of Staffing Services has published Policy Bulletin 17-01, Program Guidelines and Procedures for Appointments Pursuant to Sections 55-b and 55-c of the Civil Service Law.

These guidelines were adopted by the New York State Civil Service Commission at its meeting of February 2017 to clarify the policies and procedures to ensure the greatest employment opportunities for those persons with disabilities and Veterans with disabilities whose disabilities have placed them at a disadvantage in obtaining entry into the workforce.
 

The text of Policy Bulletin 17-01 is posted on the Internet at:

https://www.cs.ny.gov/ssd/Manuals/SPMM/1800Appointments/Policy%20Bulletin%2017-01.htm

A PDF version of Policy Bulletin 17-01 is available on the Internet at:

https://www.cs.ny.gov/ssd/pdf/pb17-01.pdf

Important Information on W-2/SSN Data Theft Scam

Important Information on W-2/SSN Data Theft Scam

Source: The Internal Revenue Service

The Internal Revenue Service has called attention to what it characterizes as "A dangerous email scam" currently circulating nationwide and targeting employers, including tax exempt entities, universities and schools, government and private-sector businesses.

The scammer poses as an internal executive requesting employee Forms W-2 and Social Security Number information from company payroll or human resources departments. They may even send an initial “Hi, are you in today” message before the request.

The IRS has established a process that will allow employers and payroll service providers to quickly report any data losses related to the W-2 scam. See details at Form W-2/SSN Data Theft: Information for Businesses and Payroll Service Providers. If notified in time, the IRS can take steps to prevent employees from being victimized by identity thieves filing fraudulent returns in their names. There also is information about how to report receiving the scam email even if you did not fall victim.

As a reminder, tax professionals who experience a data breach also should quickly report the incident to the IRS. Tax professionals may contact their local stakeholder liaison. See details at Data Theft Information for Tax Professionals.

Also note, IRS suggests that if your business received the email but did NOT fall victim to the scam, forward the email to the IRS. The IRS needs the email header from the phishing email for its investigation, which means you must do more than just forward the email to phishing@irs.gov. Here’s what to do with the W-2 email scam:

1. The email headers should be provided in plain ASCII text format. Do not print and scan
2. Save the phishing email as an email file on your computer desktop
3. Open your email and attach the phishing email file you previously saved
4. Send your email containing the attached phishing email file to phishing@irs.gov. Subject Line: W2 Scam. Do not attach any sensitive data such as employee SSNs or W-2s.
5. File a complaint with the Internet Crime Complaint Center (IC3,) operated by the Federal Bureau of Investigation.

Dismissing a human rights complaint for "administrative convenience" and "dismissal of a human rights complaint on the merit" distinguished

Dismissing a human rights complaint for "administrative convenience" and "dismissal of a human rights complaint on the merit" distinguished

Vetro v Hampton Bays Union Free School Dist., 2017 NY Slip Op 01910, Appellate Division, Second Department

In an action seeking to recover damages for his alleged wrongful termination of employment by the Hampton Bays Union Free School District, Frank J. Vetro appealed an order of the Supreme Court that denied his motion for summary judgment on the complaint and granted Hampton Bay's cross motion for summary judgment dismissing the complaint.

The Appellate Division sustained the lower court's ruling explaining that in this instance the "doctrine of election of remedies" barred Vetro from bringing an action in Supreme Court alleging the same discriminatory acts the he had advanced in his complaint filed with the New York State Division of Human [Division] in his complaint.

Executive Law §297(9) provides that in the event the Division has dismissed a complaint filed with it for "administrative convenience" the complainant is able to "maintain all rights to bring suit as if no complaint had been filed with the [Division]." In contrast, in the event the Division had dismissed the complaint or complaints on the merits and not for mere administrative convenience, recourse to Supreme Court alleging the same acts or omissions is not available to the complainant.

In particular, §297(9) provides that at  any  time  prior  to  a   hearing  before a hearing examiner, a person who has a complaint pending at the division may request that the division dismiss the complaint  and   annul his or her election of remedies so that the human rights law claim   may  be  pursued  in  court,  and  the  division may, upon such request,   dismiss the complaint on the grounds that such person's election  of  an   administrative  remedy  is  annulled.*

In this instance, said the Appellate Division, the Division of Human Rights dismissed Vetro's complaints on the "merits and not for mere administrative convenience." Thus, said the court, Supreme Court properly granted the school district's motion for summary judgment dismissing the complaint on the ground that this action is barred by the election of remedies doctrine.

* N.B. A complaint filed by the Equal  Employment Opportunity Commission to comply with the requirements of 42 USC 2000e-5(c)and 42 USC 12117(a) and29 USC 633(b) does not constitute the filing of a complaint within the meaning of §297(9) of New York State's Executive Law.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_01910.htm

Use of excessive and inappropriate force on juvenile residents at a facility

Use of excessive and inappropriate force on juvenile residents at a facility

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

 

Administrative Law Judge Kara J. Miller recommended termination of employment for a juvenile counselor who used excessive and inappropriate force on three residents.

The employee placed his arms, hand, and knee on one resident’s neck, pulled another resident backwards off a desk by his boxer shorts causing the resident to fall on his back and hit his head on a chair, and grabbed a third resident around the waist, lifting him in the air, and slamming him to the ground.

Additionally, the employee submitted a false report regarding the incident.   

Admin. for Children’s Services v. Judge, OATH Index No. 1412/16 (Jan. 20, 2017).

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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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New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending March 25, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending March 25, 2017
Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR

Audits and examinations concerning State Department and Agencies:

Department of Health (DOH) - Security and Controls Over

Medications and Related Supplies

New York City Department of Housing Preservation and Development (HPD) - Awarding Housing Units and Maintaining Waiting Lists

Department of Labor (DOL)/Department of Corrections and Community Supervision (DOCCS)- Pay for Success Program

State Education Department - Compliance With the Reimbursable Cost Manual

Audits concerning the following political subdivisions of the State:

Ballston Lake Fire District - Length of Service Awards Program Service Credit

Town of Barker -Broome County- Justice Court Operations

Town of Genesee, -  Disbursements

Town of Hempstead Sanitary District No. 2 - Financial Condition and Procurement

Town of Horicon - Leave Accruals

Town of Kirkwood - Justice Court Operations

Lyon Mountain Fire District - Cash Disbursements

Manorville Fire District - Board Oversight and Fuel

Town of Mentz - Board Oversight

City of Olean - Budget Review

Inference of unlawful discrimination rebutted by employer's showing that its reasons for its decision not subterfuge for unlawful discrimination

Inference of unlawful discrimination rebutted by employer's showing that its reasons for its decision not subterfuge for unlawful discrimination

Uwoghiren v City of New York, 2017 NY Slip Op 01782, Appellate Division, First Department

Fridrey O. Uwoghirenalleged that his former employer, the New York City Department of Juvenile Justice (DJJ), discriminated against him on the basis of his Nigerian national origin by not selecting him for two promotions and by paying him less than it paid a peer of a different national origin.

Appellate Division said that Uwoghiren had established prima facie that he was passed over for promotion under circumstances raising an inference of discrimination. However, said the court, DJJ offered legitimate, nondiscriminatory reasons for promoting two employees who were not of Nigerian origin. Representatives of DJJ had testified to the effect thatUwoghiren had limited his work to fulfilling the minimal requirements of his job, that he sometimes balked at assignments without good reason, and that he failed to meet all of his goals.

In contrast, DJJ had demonstrated that the promoted employees had done outstanding work in positions relevant to the two vacancies to which they had been appointed.

The Appellate Division ruled that Uwoghiren had failed to raise triable issues of fact as to whether DJJ's proffered reasons for its decisions were pretextual in view of the absence of any evidence from which a reasonable jury could infer that Uwoghiren national origin played a role in DJJ's decision to pass him over for promotions.

Indeed, observed the court, Uwoghiren "admittedly never complained about the promotion process before commencing this action, and there is no indication that he raised any internal complaints of discrimination."

Another issue raised by Uwoghiren: the individuals selected for advancement were promoted in violation of the Civil Service Law. The Appellate Division said that although the promoted individuals were provisional rather than permanent employees, "this technical violation does not establish a discriminatory motive."

In his testimony Uwoghirenrecounting two occasions when one of the decision-makers allegedly shouted admonitions at him or another employee of Nigerian origin. Such type of behavior, said the court, "does not establish discrimination based on national origin" as mere personality conflicts "must not be mistaken for unlawful discrimination, lest the antidiscrimination laws become a general civility code."

The decision also notes that Uwoghiren "failed to make a prima facie showing in support of his claim that he was paid less than a peer of another national origin." The court explained that while Uwoghiren and the other employee had the same civil service title, "they were not similarly situated in light of the differences in their experience ... the other employee's earlier salary ... and their differing job responsibilities.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_01782.htm

Sleeping on duty

Sleeping on duty

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Administrative Law Judge Susan J. Pogoda recommended termination of employment for a patient care technician at a hospital.

The employee was found sleeping on duty three times, including one incident where a patient he was assigned to observe, fell from his bed and struck the leg of a doctor who was performing a bone marrow biopsy on a patient in the adjacent bed.

The employee also failed to document his observations of patients every 15 minutes, as required.

Additionally, the employee  had a significant disciplinary record including a previous suspension for sleeping on duty.

Health & Hospitals Corp. (Bellevue Hospital Ctr.) v. Ogbonna, OATH Index No. 165/17 (Jan. 17, 2017), adopted, Hosp. Dec. (Feb. 14, 2017)

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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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Recent appointments announced by New York State's Governor Andrew M. Cuomo

Recent appointments announced by New York State's Governor Andrew M. Cuomo 

Source: Officer of the Governor

On March 21, 2017 Cuomo announced the following appointments to his administration 

Carolyn Pokorny has been appointed Chief Special Counsel for Ethics, Risk and Compliance. Most recently, she served as Deputy Chief of Staff and Counselor to U.S. Attorney General Loretta E. Lynch. Prior, she spent nearly fifteen years with the U.S. Attorney’s Office in Brooklyn, where she held a number of leadership positions, including Deputy Chief of the Criminal Division. She received the U.S. Attorney General’s Award for Distinguished Service, and the Federal Prosecutor of the Year award from the Federal Law Enforcement Foundation. Ms. Pokorny began her career as a prosecutor in the Bronx District Attorney’s Office and then clerked for federal judge Arthur D. Spatt on Long Island. She has a B.A. from New York University, and a J.D. from Brooklyn Law School.

Christopher O’Brien has been appointed Director of Special Projects. Previously, Mr. O’Brien worked at Xerox Legal and Compliance Solutions for more than ten years, most recently as Senior Vice President and Chief Operating Officer. Prior, he worked in public service as Deputy Commissioner and General Counsel of the New York State Department of Taxation and Finance. Before that, he served as Senior Assistant Counsel to Governor George E. Pataki. Mr. O’Brien received his J.D. from Albany Law School and a B.A. from Hobart College.

Sarah Bittleman has been appointed Deputy Director of Special Projects.  Previously, she has worked in the U.S. House of Representatives and the U.S. Departments of the Interior and Agriculture, as well as the U.S. Environmental Protection Agency.  She comes to the Chamber most recently after serving as a Legislative and Policy Director for U.S. Senator Ron Wyden and the U.S. Senate Finance Committee. She holds a J.D. from Tulane University, an M.P.A. from East Carolina University and a B.A. from Union College.

Molly D. Dillon has been appointed Senior Policy Advisor. Prior to joining the Governor’s Office, she served in the Obama White House as a Policy Advisor for Urban Affairs, Justice and Opportunity on the Domestic Policy Council. At the White House, her work included a number of civil rights policy issues and their intersections, including women’s equality, child welfare, LGBTQ rights, labor, criminal justice, disability rights, homelessness, economic mobility and big data. Ms. Dillon holds an M.P.P. from Georgetown University’s McCourt School of Public Policy and a B.A. from Johns Hopkins University.

Valery Galasso has been appointed Senior Policy Advisor. Most recently, she was Special Advisor for Cabinet Nominations in the Office of the Chief Counsel for the Clinton-Kaine Transition Team. Ms. Galasso has served multiple roles in federal government, including Policy Advisor at the Federal Communications Commission, where she was responsible for policy development involving a wide range of telecommunications issues. Prior to that, Ms. Galasso was a Special Assistant for Legislative Affairs in the White House for Vice President Joseph R. Biden, and a Congressional Liaison for the U.S. Department of Commerce. She holds an M.A. in Public Policy from Johns Hopkins University and a B.A. from the University of Connecticut.

Patrick Oakford has been appointed Senior Policy Advisor. Most recently, Mr. Oakford was a Policy Advisor at the United States Department of Labor in Washington, D.C., where he advised Secretary Perez and helped execute the Department’s regulatory agenda. Prior, he conducted research on the economic impacts of immigration as a Senior Policy Analyst at the Center for American Progress. Mr. Oakford received a M.Sc. from the University of Oxford, where he graduated with distinction, and a B.S. from Cornell University.

Mike Perrin has been appointed Deputy Director of State Operations. Mr. Perrin most recently served as Executive Deputy Commissioner of the Office of Temporary and Disability Assistance. He came to the Cuomo administration as part of the New York Works initiative, where he played a key role in administering major capital projects across three state agencies. He then served as Deputy Commissioner for Administration and Finance at the Division of Homeland Security and Emergency Services overseeing all agency budget functions, federal homeland security grant programs and financial aspects of Federal Emergency Management Administration funding aimed at recovery from Superstorm Sandy. Prior to rejoining state government, Mr. Perrin served in the Office of the County Executive of Albany County for 15 years. Mr. Perrin holds a B.A. from SUNY Oswego.

Kate Dineen has been appointed Chief of Staff to the Director of State Operations. Ms. Dineen most recently served as the Assistant Secretary for the Environment, and previously as the Deputy Executive Director of the Governor’s Office of Storm Recovery. Before joining state government, she was U.S. Senator Kirsten Gillibrand’s Policy Director, covering environmental, energy, and economic development issues. She also worked for the Australian federal government evaluating the world’s first national scheme to regulate the creation and trade of carbon credits. Ms. Dineen holds a Masters in City Planning from the Massachusetts Institute of Technology. She graduated cum laude from Williams College with a B.A. in English.

Annabel Walsh has been appointed Director of Scheduling for Governor Cuomo. Previously, Ms. Walsh served as the Assistant Director of Scheduling, where she was responsible for coordinating many aspects of the Governor’s daily schedule. In 2013, Ms. Walsh joined the Cuomo Administration as an Operations Associate and Executive Assistant where she was responsible for organizing gubernatorial events. In those roles, Ms. Walsh also provided administrative support for the Senior Policy Advisor to the Governor and the Downstate Director of Intergovernmental Affairs. Ms. Walsh holds a B.A. from New York University.

Joel Wertheimer has been appointed Staff Secretary for Governor Cuomo. Most recently, he served as an Associate Staff Secretary at the Obama White House where he was responsible for coordinating and reviewing briefing materials sent to the President. Prior, Mr. Wertheimer worked in private practice as an Associate at Winston & Strawn LLP, before which, he clerked for the Honorable Lorna G. Schofield, U.S. District Court for the Southern District of New York. He received his J.D. from New York University School of Law and a B.A. from Tufts University.

Jen Darley has been appointed Assistant Director of Executive Operations. Most recently, she was the National Advance Lead at the Hillary for America Campaign where she traveled across the country advancing visits for Secretary Clinton and Senator Tim Kaine. Prior, she worked at the National Constitution Center in Philadelphia, where she held roles as the Vice President of Operations and the Vice President of Visitor Services. Ms. Darley also served as an event management consultant for the 2016 Democratic National Convention Host Committee. She received a B.A. in Psychology and a B.S. in Business Administration from the University of Delaware.

Jon Weinstein has been appointed Deputy Communications Director for Transportation. Previously, Mr. Weinstein was a Vice President at Mercury Public Affairs where he developed and executed both short- and long-term communications strategies for clients in the public and private sectors. Prior to that, Mr. Weinstein worked as a reporter and anchor with NY1 for more than seven years, covering a range of topics including politics, transportation, community news, real estate, and sports. He also worked as a field producer at News 12 The Bronx/Brooklyn. Mr. Weinstein holds a B.S. from Cornell University and an M.S.J. from Northwestern University’s Medill School of Journalism.

Elizabeth Bibi has been appointed Deputy Director of Media Relations. Ms. Bibi most recently served as National Press Advance Desk for Senator Tim Kaine with the Hillary for America campaign, overseeing media logistics for all of Senator Kaine's interviews and events. Previously, she served on the Government Relations team at Scholastic Inc., and as Senior Media Relations Associate at the Bill, Hillary, and Chelsea Clinton Foundation. She holds a B.A. from Barnard College.

Andrew Tillman has been appointed Speechwriter for Governor Cuomo. Most recently, he worked in the Obama White House as a Senior Research Associate and speechwriter, writing speeches for White House Chief of Staff Denis McDonough. Prior, he was an Associate Fellow at the Institute of the Americas, University College London, where he co-led a group of scholars for a major research project on United States-Latin American relations. Mr. Tillman holds a Ph.D. from the University of Cambridge, an M.A. from the Fletcher School at Tufts University, and a B.A. from Wake Forest University.

Tim Fullerton has been appointed Director of Digital Communications. Mr. Fullerton most recently served as the Director of National Digital Campaigns at Everytown for Gun Safety. Prior, he was the Director of Digital Strategy for the U.S. Department of the Interior where he served as a spokesperson for the department and executed its first digital strategic plan to broaden awareness and engagement with the public. Mr. Fullerton has held digital roles at a number of organizations, including the Alliance for Climate Protection, Oxfam America, and Electric Drive Transportation Association. He also served as the State and Regional E-Mail Manager for Obama for America in 2008. Mr. Fullerton holds a B.A. from Dickinson College.

Diana Bowen has been appointed Video Producer. Most recently, Ms. Bowen worked on the Hillary for America campaign as the state Filmmaker in Pennsylvania. Prior to that, she was a Video Producer at a strategic media firm. She was also a Video Producer and Photographer at the National Park Service. Ms. Bowen holds a B.A. in Multimedia Journalism from American University.

Joseph Rabito has been appointed Deputy Secretary for Intergovernmental Affairs, after serving as Deputy Director of State Operations for Programs. In his new role he will focus primarily on upstate intergovernmental relations. In February 2011, Governor Cuomo appointed Mr. Rabito as Executive Deputy Commissioner at the New York State Office of General Services. Before joining OGS, Mr. Rabito held the titles of Deputy Commissioner at New York State Homes and Community Renewal and President of the New York State Housing Trust Fund Corporation. Prior to his appointment at HCR, Mr. Rabito served as Commissioner of Development & Planning for the City of Albany, and in the federal government for then Secretary Andrew Cuomo at the U.S. Department of Housing and Urban Development.

Rochelle Kelly-Apson has been appointed Director of Downstate Intergovernmental Affairs for Governor Cuomo. She most recently served as Deputy Director of Intergovernmental Affairs at the Office of the New York State Attorney General, after serving as a Community Outreach Liaison. Mrs. Kelly-Apson also served as a Rank-and-File Organizer for the New York Hotel Trades Council where she helped develop the organization’s campaign, and as a Union Delegate for the Roosevelt Hotel in New York. She has over 13 years of experience organizing advocacy ýand political campaigns in New York State.

Brendan Hughes has been appointed Assistant Secretary for Economic Development. Mr. Hughes previously served as Deputy Commissioner at Empire State Development where he was responsible for oversight of Governor Cuomo’s Regional Economic Development Councils as well as several other programs, including the $1.5 billion Upstate Revitalization Initiative and $100 million Downtown Revitalization Initiative. Prior to joining Empire State Development, Mr. Hughes managed economic development initiatives in the clean energy sector for the New York State Energy Research and Development Authority. Mr. Hughes received a B.A. in Political Science from Siena College.

Kerri Neifeld has been appointed Assistant Secretary for Human Services. Ms. Neifeld previously served as Assistant Deputy Commissioner at the New York State Office of Temporary and Disability Assistance where she managed the newly-created Division of Shelter Oversight and Compliance. Before that, she worked as Special Assistant to the Deputy Commissioner at OTDA while serving as a member of Governor Cuomo’s inaugural class of Excelsior Service Fellows. Prior to the Excelsior Service Fellowship Program, Ms. Neifeld was a Fellow on Women & Public Policy at Rockefeller College’s Center for Women in Government & Civil Society. Ms. Neifeld has worked as a Project Manager at the Mental Health Association of Columbia-Greene Counties, a Child Protective Services Caseworker at the Albany County Department of Child and Family Services and a Youth Care Worker at WAIT House Homeless Youth Shelter. Ms. Neifeld holds a B.A. from Elmira College and an M.S.W. from the University at Albany School of Social Welfare.

Rob Gibbon has been appointed Assistant Counsel to the Governor for Transportation. Previously, he served as a Senior Counsel in Majority Counsel’s Office in the New York State Senate. During his time there, he acted as Home Rule and FOIL counsel to the conference and served as counsel to the local government committee; banks committee; housing, construction and community development committee; cities committee; and racing, wagering and gaming committee.  Before working for the Senate, he was Assistant Counsel to the New York State Association of Counties. He received his J.D. from Albany Law School and a B.S. in Business Administration magna cum laude from SUNY Albany.

Penny Lowy has been appointed Appointments Secretary. She most recently served as the Head of Resourcing and the Graduate Program at ICAP NA (Broker and FinTech Company), where she built a recruiting function and designed a series of global development programs and Human Resources processes and policies. Prior, she was the Recruiting Manager and Senior Vice President of Human Resources at Citibank. Before that, Ms. Lowy served as the Vice President of Global Talent Acquisition for Learning and Development at MasterCard Worldwide, and prior, she was a Human Resource Consultant at GE Capital Structured Finance Group. She holds a B.A. from Stony Brook University.

John Ceretto has been appointed Project Coordinator at the New York State Office of Parks, Recreation and Historic Preservation after serving in the New York State Assembly since 2011. Before serving as an Assemblyman, Mr. Ceretto worked at the State Parks Department’s Niagara Gorge Discovery Center for nearly ten years, in the facility’s Education Programs Office of Historical Archives. Mr. Ceretto also worked for nearly 20 years at the Prestolite/Tulip Corporation. During part of his time there, he was a U.A.W. President for nine years. Before that, he was a teacher at Niagara Falls & Niagara Wheatfield School Districts. He has also served as a Councilman for the Town of Lewistown and as a Niagara County Legislator. Mr. Ceretto holds an M.S. in Education from Niagara University.

Brendan Fitzgerald has been appointed First Deputy Secretary of State at the New York Department of State. Previously, Mr. Fitzgerald served as Deputy Secretary for General Government and Financial Services in the Executive Chamber. Prior to that, Mr. Fitzgerald served as Assistant Secretary for Financial Services, Assistant Secretary for Technology, Operations and Gaming and Special Assistant for Public Finance and Local Government. For nearly seven years, Mr. Fitzgerald served as Principal Legislative Analyst for the New York State Assembly. Mr. Fitzgerald holds a B.A. in English and Philosophy from Siena College.

Michael Volforte has been appointed Director of the Governor’s Office of Employee Relations. As Director, he oversees the Executive branch’s relationship with the public sector unions that represent New York State employees. Mr. Volforte has worked in public service at the Governor’s Office of Employee Relations for over 20 years. He has served in various roles at GOER, including Associate Director, Deputy Counsel and Assistant Counsel. He received a J.D. from Albany Law School and a B.A. from St. Lawrence University.

Sarah Coleman has been appointed Deputy Chair and Counsel for the New York State Public Employment Relations Board. Previously, Ms. Coleman served as Senior Counsel for the National Labor Relations Board where she worked as part of a team to prepare cases for decision by the Board. Prior to that, she worked at the Mississippi Youth Justice Project and Green Advocates. She also served as a Development Project Manager for Wiley-Blackwell Publishing and as a Junior Underwriter for Merrimack Mortgage Company. Ms. Coleman holds a J.D. from Columbia University School of Law and a B.A. from Boston University.

Jeffrey Pearlman has been appointed Acting Director of the Authorities Budget Office. Previously, Mr. Pearlman served as Chief of Staff and Counsel for Lieutenant Governor Kathy Hochul. Mr. Pearlman has also served as Chief of Staff for Senate Minority Leader Andrea Stewart-Cousins and the State Senate Democratic Conference. Before working for the Senate, he worked of-counsel in the Government and Litigation practices of Greenberg Traurig LLP, an international, multi-practice law firm. Prior to that, he held numerous positions in state government, including in the New York State Executive Chamber as Assistant Counsel to former Governor David A. Paterson, Counsel to the New York State Lieutenant Governor, and several capacities in the New York State Senate and Assembly. Mr. Pearlman holds a J.D. from Albany Law School and a B.A. from SUNY New Paltz.

Disciplinary hearings held in absentia

Disciplinary hearings held in absentia

NYC Office of Administrative Trials and Hearings [OATH], Index No. 728/17

A New York City tax auditor was charged with misconduct and incompetence for performing her duties in an inefficient manner, being discourteous to her supervisor, and time and leave violations. The auditor failed to appear at trial and the hearing proceed in absentia.

The general rule in such situations is that if the employee fails to appear at the disciplinary hearing, the charging party may elect to proceed with the hearing but it must actually hold a “hearing in absentia” and prove its allegations rather then merely impose a penalty on the individual on the theory that the employee’s failure to appear at the hearing* as scheduled is, in effect, a concession of guilt.

OATH Administrative Law Judge Ingrid M. Addison conducted the hearing in "the form of an inquest" at which the Department presented the testimony the employee's supervisor, and documentary evidence.

Based on credible testimony from the auditor's supervisor and documentary evidence, Judge Addison sustained the charges. She found that the auditor’s persistent unwillingness to perform her tasks constituted incompetence as well as misconduct. The ALJ then recommended that the employee be terminated by the appointing authority.  

* N.B. The appointing authority is required to make a reasonable effort to contact the employee before proceeding to hold a disciplinary hearing in absentia. It may be that the employee has a valid excuse for his or her nonappearance such as a family emergency or personal illness that would justify the hearing officer granting an adjournment. Attempting to contact the accused, or his or her attorney,  is advisable even if the individual had announce that he or she does not intend to appear at the hearing as scheduled since he or she can elect to do so the last moment and then be prevented from being present at the proceeding as the result of some legitimate mischance or medical inability.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-728.pdf

________________________

The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html

________________________

Disciplinary hearings held in absentia

Disciplinary hearings held in absentia

NYC Office of Administrative Trials and Hearings [OATH], Index No. 728/17

A New York City tax auditor was charged with misconduct and incompetence for performing her duties in an inefficient manner, being discourteous to her supervisor, and time and leave violations. The auditor failed to appear at trial and the hearing proceed in absentia.

The general rule in such situations is that if the employee fails to appear at the disciplinary hearing, the charging party may elect to proceed with the hearing but it must actually hold a “hearing in absentia” and prove its allegations rather then merely impose a penalty on the individual on the theory that the employee’s failure to appear at the hearing* as scheduled is, in effect, a concession of guilt.

OATH Administrative Law Judge Ingrid M. Addison conducted the hearing in "the form of an inquest" at which the Department presented the testimony the employee's supervisor, and documentary evidence.

Based on credible testimony from the auditor's supervisor and documentary evidence, Judge Addison sustained the charges. She found that the auditor’s persistent unwillingness to perform her tasks constituted incompetence as well as misconduct. The ALJ then recommended that the employee be terminated by the appointing authority.  

* N.B. The appointing authority is required to make a reasonable effort to contact the employee before proceeding to hold a disciplinary hearing in absentia. It may be that the employee has a valid excuse for his or her nonappearance such as a family emergency or personal illness that would justify the hearing officer granting an adjournment. Attempting to contact the accused, or his or her attorney,  is advisable even if the individual had announce that he or she does not intend to appear at the hearing as scheduled since he or she can elect to do so the last moment and then be prevented from being present at the proceeding as the result of some legitimate mischance or medical inability.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-728.pdf

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Failing to prove that the union breached its duty of fair representation in challenging an arbitration award is fatal to employee's appeal

Failing to prove that the union breached its duty of fair representation in challenging an arbitration award is fatal to employee's appeal

Henvill v Metropolitan Transp. Auth., 2017 NY Slip Op 01785, Appellate Division, First Department

Winston Henvill, an employee of the Metropolitan Transportation Authority [MTA],  filed a CPLR Article 75 petition seeking to vacate the arbitration award resulted in the terminated his employment with MTA upon his being found guilty of misconduct. 

Supreme Court dismissed Henvill's petition and the Appellate Division unanimously affirmed the lower court's ruling.

The Appellate Division initially explained that Henvill "failed to adequately plead a claim for breach of the duty of fair representation against the Metropolitan Transportation Authority Police Benevolent Association [PBA], his collective bargaining unit's representative, finding that none of the allegations in Henvill's complaint demonstrated that PBA's conduct, in representing Henvill at the arbitration hearing which resulted in his termination, was arbitrary, discriminatory or conducted in bad faith.

Thus, said the court, as Henvill failed to state an unfair representation claim against PBA, his claim against his employer, MTA, alleging a breach of the relevant collective bargaining agreement, must also fail.

The Appellate Division also noted that Henvill had failed to demonstrate the existence of any of the statutory grounds for vacating the arbitrator's award set out in Article 75 such as fraud, bias or the failure to follow proper procedure.  

In addition, the court rejected what it characterized as Henvill's major argument: the arbitrator's fact-finding was irrational and required vacatur in view of "the well-settled principle that courts in considering a petition to vacate a voluntary arbitration may not review the arbitrator's findings of fact."

Finally, said the court, "we perceive no reason to overturn the imposed penalty of termination."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_01785.htm

 _______________________ 

The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html

_______________________ 

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending March 18, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending March 18, 2017
Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR

Woman arrested for alleged theft of NYS Retirement benefits and welfare fraud

New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the unsealing of a five-count indictment charging Tammy Banack, a resident of Kirkville, New York, with one count of Grand Larceny in the Second Degree, a class C felony, one count of Welfare Fraud in the Third Degree, a class D felony, two counts of Grand Larceny in the Third Degree, a class D felony, and one count of Offering a False Instrument for Filing in the First Degree, a class E felony.

http://www.osc.state.ny.us/press/releases/mar17/031317.htm?utm_source=weekly+news&utm_medium=email&utm_term=corruption&utm_content=20170319&utm_campaign=fiscal+oversight

Man alleged to have pocketed his deceased mother's retirement benefits

State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the unsealing of a one-count indictment charging Jimmie Buie, a resident of Brooklyn, with Grand Larceny in the Third Degree, a class D felony. Jimmie Buie is alleged to have stolen over $23,000 in pension benefits issued by the New York State and Local Employees Retirement System to his deceased mother, Sandra Buie, between May 2011 and December 2012.

http://www.osc.state.ny.us/press/releases/mar17/031617b.htm?utm_source=weekly+news&utm_medium=email&utm_term=corruption&utm_content=20170319&utm_campaign=fiscal+oversight

New York State Comptroller Thomas P. DiNapoli announced the following audits and examinations have been issued:

Office of Temporary and Disability Assistance - Wage Subsidy and Transitional Employment Programs

New York State Health Insurance Program - Long Island Bone and Joint, LLP waived Empire Plan members’ out-of-pocket costs resulting in overpayments on claims submitted by LI Bone and Joint.

State University of New York - State University of New York Upstate Medical University’s Billing Practices