Nonfeasance by a public official

A decision by New York State’s highest court sustained the conviction of a police officer who had taken part in a plot to prevent the arrest of a teenager accused of burglary and whose father had personal connections to the officer's Police Department.

The Court of Appeals said that it is not “discretionary” for government officials to abdicate their responsibility to pursue wrongdoing if that decision is being made to benefit someone personally.

The court explained that “... a public servant’s knowing refusal to perform a mandatory action coupled with an intent to obtain a benefit constitutes nonfeasance,” in upholding the police official’s conviction. In the words of the court, “... when a public servant, with the intent to obtain a benefit, knowingly refuses to perform a discretionary duty, the performance of which is so obviously fundamental to accomplishing the goals of the public servant’s office, that refusal cannot legitimately be understood to be an exercise of discretion; rather, it constitutes an abuse of discretion, which equates to nonfeasance.”

Other such transgressions include misfeasance in office, acting unlawfully, and malfeasance in office, performing official acts badly.

The decision is posted on the Internet at: 
https://www.leagle.com/decision/innyco20170209276

The anatomy of an application for accidental disability retirement benefits

The genesis of this case was the determination by the Medical Board of the New York City Fire Department Pension Fund [Medical Board] that although the applicant [Plaintiff] for accidental disability retirement benefits [ADR] was disabled, his disabling condition was not the result of a work-related injury. The Medical Board's decision was adopted by the Board of Trustees of the New York City Fire Department Pension Fund [Board of Trustees] adopted the recommendation of the Medical Board and denied the petitioner's application for ADR in a tie vote.

Plaintiff commenced a CPLR Article 78 proceeding to review the determination of the Board of Trustees. Supreme Court denied Plaintiff's petition and dismissed the proceeding, finding that the determination was supported by credible medical evidence and thus was not arbitrary and capricious. Plaintiff appealed the Supreme Court's ruling.

The Appellate Division said agreed with the Supreme Court's determination rejecting Plaintiff's petition and dismissing the proceeding, explaining that in Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, the Court of Appeals, indicating that a New York City firefighter is entitled to ADR benefits after a medical examination and investigation shows that the firefighter is physically or mentally incapacitated for the performance of city-service "as a natural and proximate result of an accidental injury received in such city-service."

The Appellate Division then described the procedure following in evaluating an application for ADR as involving a two-step process:

1. A medical examination of the applicant for ADR followed by a three-physician member pension fund Medical Board, "charged with passing upon all such required medical examinations and investigating all essential information in connection with a disability retirement application"; and

2. If the Medical Board concludes that the firefighter is disabled, it must then determine whether the disability is "a natural and proximate result of an accidental injury received in such city-service" and certify its recommendation on this issue to the Board of Trustees, which is ultimately responsible for retiring the city service member and determining the issue of service-related causation.

The court opined that the Board of Trustees is entitled to rely on the advisory opinion of the Medical Board regarding causation. However, the burden of establishing that a disability is causally related to a line-of-duty accident rests with the applicant for ADR benefits in the event the firefighter ADR benefits are denied.

In the event a vote by a Board of Trustees to retire a city service member under ADR results in a tie, the Board of Trustees is required to retire the member under Ordinary Disability Retirement [ODR] with ODR benefits. Significantly, in the event the firefighter challenges being placed on ODR by initiating a CPLR Article 78 proceeding, the reviewing court may not set aside the Board of Trustees' denial of accidental disability retirement resulting from such a tie vote unless the court determines that "as a matter of law on the record that the disability was the natural and proximate result of a service-related accident."

Under this standard, said the Appellate Division, "as long as there was any credible evidence of lack of causation before the Board of Trustees, its determination must stand."* Further, as the Appellate Division noted in Matter of Santoro v Board of Trustees of N.Y. City Fire Dept. Art.1-B Pension Fund, 217 AD2d 660, courts "cannot weigh the medical evidence or substitute their own judgment for that of the Medical Board."

The court said that the Medical Board's determination that the Plaintiff's disability was causally related to chronic degenerative joint disease was supported by credible evidence consisting of the operative report and other relevant medical records including an MRI report." The decision also notes that "the Medical Board provided an 'articulated, rational, and fact-based medical opinion' for how it came to its conclusion."

Although the Medical Board's findings differ from those of Plaintiff's surgeon, who found that it was likely that Plaintiff's condition "was causally related to work injuries and that [Plaintiff] may have exacerbated a pre-existing condition," the Appellate Division observed that "[w]here conflicting medical evidence and medical reports are presented to the Medical Board, it is solely within the province of the Medical Board to resolve such conflicts."

Further, opined the Appellate Division, "It was not arbitrary or capricious for the Board of Trustees to find that [Plaintiff] did not establish that his disability was the natural and proximate result of his line-of-duty accident" and the Board of Trustees was entitled to rely on the Medical Board's recommendation in voting to deny ADR benefits to the petitioner, and found that "there is no basis herein to disturb the Board of Trustees' determination."

* Credible evidence is evidence that proceeds from a credible source and reasonably tends to support the proposition for which it is offered and not merely a conclusion of law, nor mere conjecture or unsupported suspicion.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_03910.htm

Audits released by the New York State Comptroller

The audits listed below were released by New York State Comptroller Thomas P. DiNapoli during the week ending July 24, 2020.

Click on the text highlighted in color to access the full report.

School Districts:

Liverpool Central School District – Information Technology (IT) Assets (Onondaga County) District officials did not maintain complete and accurate hardware or software inventory records and did not perform comprehensive inventory counts. Auditors’ review of 529 purchased items, totaling about $448,000, found that 123 items, totaling $76,425, were not recorded in the district’s inventory records. Officials could not locate three of the 48 IT items auditors tested: a laptop and two cameras, totaling $1,444. In addition, the last comprehensive physical inventory count was conducted in 2003.

Putnam Central School District – Fund Balance Management (Washington County) The district’s surplus fund balance exceeded the statutory limit by 32.7 to 42.8 percentage points at the end of the last three fiscal years. Auditors determined appropriations were consistently overestimated resulting in increasing fund balance levels. The district did not use all of the fund balance appropriated to finance operations for fiscal years 2016-17 through 2018-19. The board has not adopted an adequate multiyear financial plan.

Wyandanch Union Free School District – Budget Review (Suffolk County) Significant estimated revenues and budgeted expenditures in the $71.7 million adopted budget for the 2020-21 fiscal year are not reasonable. District officials were unable to produce sufficient documentation that their appropriations for employee benefits, the re-institution of athletics program, and certain utilities are adequate. Additionally, overtime costs will need to be monitored closely to ensure they do not exceed budgeted appropriations. Consequently, the 2020-21 appropriations may be underbudgeted by at least $2.7 million. The district may not have sufficient resources to meet its financial obligations unless the superintendent and board implement budget cuts in the 2020-21 budget.

Local government audits:

Village of Arkport – Water Fund Financial Operations (Steuben County) Auditors found complete and accurate accounting records were not maintained, the modified accrual basis of accounting was not used and interfund activity was not properly reported. As a result, the board could not adequately monitor the water fund’s financial operations. The board did not properly segregate water billing and collection duties or establish compensating controls. In addition, late penalties were not properly assessed on unpaid water bills.

Cortlandville Fire District – Credit Cards (Cortland County) The board did not ensure that certain credit card charges were supported, for appropriate purposes or paid timely. In addition, the board approved credit card charges totaling $18,124 without adequate supporting documentation. The district also incurred penalty charges totaling approximately $390 for late payments and $190 for interest.

Hudson Housing Authority – Information Technology (IT) (Columbia County) Authority officials did not ensure that IT systems were adequately secured and protected against unauthorized use, access and loss. The board did not adopt an acceptable use policy, and officials did not provide IT security awareness training. In addition, the authority did not have adequate online banking agreements.