A statute designating that certain public employees shall become members of the State and Local Employees' Retirement System preempts enrolling such employees in a different public retirement system

A statute designating that certain public employees shall  become members of the State and Local Employees' Retirement System preempts enrolling such employees in a different public retirement system
2017 NY Slip Op 07025, Appellate Division, Third Department

Petitioner, a Suffolk County Park Police Officer, applied for performance of duty and accidental disability retirement benefits with the New York State and Local Police and Fire Retirement System [PFRS] alleging that he was permanently incapacitated from performing his job duties as the result of a work-related injury. The application was denied because Petitioner was not a member of PFRS but, in fact, was a member of the New York State and Local Employees' Retirement System [ERS].

Petitioner requested a re-determination and, following a hearing, the Hearing Officer upheld the Department's decision. The Comptroller adopted the Hearing Officer's decision that Petitioner was a member of ERS and not a member of PFRS and Petitioner appealed the Comptroller's ruling.

Petitioner argued that the Comptroller should have found that he was a member of PFRS because his job duties satisfied the definition of a police officer within the meaning of Civil Service Law §58 and he was a member of an organized police force.

The Appellate Division's sustained the Controller's determination explaining that:

1. §89-r of the Retirement and Social Security Law [RSSL] was enacted for the purpose of establishing a 25-year retirement plan for individuals employed as Suffolk County Park Police Officers as Chapter 605 of the Law of 1966;*and

2. Petitioner had enrolled as a member of ERS when he began his employment as a Suffolk County Park Police Officer in 2003.

PFRS is "a separate retirement system for police and fire[fighters]" that includes a 20-year retirement plan for members of the Suffolk County police departments in accordance with RSSL §387-a.** Although eligibility for this plan also includes other Suffolk County law enforcement personnel, Suffolk County Park Police Officers are not included in the list of RSSL §387-a eligible Suffolk County law enforcement personnel and are instead provided for by RSSL §89-r.

In view of this statutory prescription with respect to membership set out in the RSSL, the Appellate Division held that the Comptroller's determination that Petitioner was a member of ERS rather than PFRS was not "irrational, unreasonable or contrary to the statutory language." 

* "Retirement of county park police officers in Suffolk county."

** "Retirement of members of the Suffolk county police force; new plan."

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2017/2017_07025.htm

Guidelines followed by courts in reviewing a challenge to a disciplinary decision made after a hearing held pursuant to compulsory arbitration

Guidelines followed by courts in reviewing a challenge to a disciplinary decision made after a hearing held pursuant to compulsory arbitration

2017 NY Slip Op 07122, Appellate Division, Second Department

Education Law §3020-a mandates compulsory arbitration in the event an educator challenges disciplinary charges that have been filed against him or her by the appointing authority.

Petitioner was found guilty of charges of misconduct filed pursuant to Education Law §3020-a after a hearing. The penalty imposed: termination from the position. Petitioner then initiated an action in Supreme Court pursuant to CPLR Article 75 seeking a court order vacating the arbitrator's determination. Supreme Court, however, confirmed the arbitration award and Petitioner appealed that court's ruling to the Appellate Division.

The Appellate Division affirmed the lower court's decision explaining:

1. Where the obligation to arbitrate arises through a statutory mandate such as Education Law §3020-a, the determination of the arbitrator is subject to closer judicial scrutiny than it would otherwise receive.

2. An award resulting from a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious.

3. The arbitrator's decision must be rational or have a plausible basis.

4. The reviewing court "should accept the arbitrators' credibility determinations, even where there is conflicting evidence and room for choice exists."

The Appellate Division held that the arbitrator's determination had evidentiary support and was not arbitrary or capricious. Further, the court found that the arbitrator's determination "was in a form sufficient to enable [Petitioner] to understand its basis so as to permit an intelligent challenge and adequate judicial review."

The decision also notes that Petitioner "failed to present evidentiary proof of actual bias or the appearance of bias on the part of the arbitrator and thus failed to establish entitlement to vacatur of the arbitrator's award  on the ground of partiality."

As to the penalty imposed by the Arbitrator, termination, the Appellate Division, citing Pell v Board of Education of Union Free School District No. 1, 34 NY2d 222, said that the penalty "does not shock the conscience" and sustained it.

* §3020-a(2)(a) of the Education Law requires the appointing authority to provide the individual against whom disciplinary charges are served with a written statement specifying (i) the charges in detail and (ii) the maximum penalty which will be imposed by the board if the employee does not request a hearing while §3020-a(2)(f) provides that "The unexcused failure of the employee to notify the clerk or secretary of his or her desire for a hearing within ten days of the receipt of charges shall be deemed a waiver of the right to a hearing."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_07122.htm

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending October 14, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending October 14, 2017 
Source: Office of the State Comptroller

Click on text highlighted in color  to access the full report 

Some NY Schools Not Reporting Bullying or Harassment 

Many New York schools fall short when it comes to protecting students from harassment and discrimination based on gender, race, religion, sexual orientation or gender identity, according to an auditby New York State Comptroller Thomas P. DiNapoli. 

Former Ontario Town Water Superintendent Charged With Covering Up Failure to Fix Water Leaks 

Former Ontario Water Superintendent Rodney Peets was arraigned in Wayne County on charges of offering a false instrument for filing, tampering with a public record and official misconduct after a year-long investigation by the State Comptroller’s Office, the New York State Police, and Acting Wayne County District Attorney Christopher Bokelman.