Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and in other jurisdictions in general.
Text of Advisory Memorandum, Memorandum 2021-01 are posted at: https://www.cs.ny.gov/attendance_leave/AdvMemo21-01.cfm
If you wish to print Advisory Memorandum 2021-01 there is a version in PDF format at:
https://www.cs.ny.gov/attendance_leave/am21-01.pdf
To view earlier Attendance and Leave bulletins issued by the Department, visit: https://www.cs.ny.gov/attendance_leave/index.cfm
The Court Officer [Petitioner] bring this CPLR Article 78 action was assigned to a criminal court. In the course of Petitioner's escorting an inmate who had become unruly during his sentencing hearing from the courtroom to a downstairs detention area, the inmate attempted to go back upstairs to the courtroom. Petitioner and two other court officers took action to restrain him.
Petitioner was injured in the course of his efforts to restrain the inmate. He did not returned to work and applied for accidental disability retirement benefits, citing injuries to his neck, right arm, right wrist and both shoulders. Plaintiff's application was denied on the ground that the incident did not constitute an accident within the meaning of Retirement and Social Security Law [RSSL] §605-a, which decision was subsequently sustained by a Hearing Officer. Ultimately the Comptroller adopted the Hearing Officer's findings and decision and Petitioner filed a CPLR Article 78 proceeding challenging the Comptroller's determination.
The job description for the title "court officer" contains a list of "typical duties" that includes providing security in the courtroom, guarding criminal defendants while they are in the courtroom and escorting them to and from the detention area, removing disruptive individuals from the courtroom and physically restraining unruly individuals. This job description for "court officer" proved to be a key element in the Appellate Division's review of a determination of the New York State Comptroller denying a court officer's [Petitioner] application for accidental disability retirement benefits.
Point out that the applicant for disability retirement benefits bore the burden of establishing that his disability arose from an accident within the meaning of the RSSL, the Appellate Division explained that the Comptroller's determination denying such benefits will be upheld if supported by substantial evidence.*
Although the reports of the incident submitted to the responsible human resources administrator indicated that Petitioner was injured when he and other officers were restraining an inmate attempting to return to the courtroom, Petitioner testified that he was not attempting to restrain the inmate when he was injured but that, instead, he was "a passive victim of a sudden and unexpected assault."
Here the Comptroller had credited the earlier written accounts of the incident over Petitioner's contradictory testimony at the hearing. The Appellate Division said that it would defer to the Comptroller's "credibility assessment."
Further, said the court, as there was substantial evidence supporting the Comptroller's finding that Petitioner's injury arose out of a risk that was foreseeable and inherent in the performance of his regular employment duties rather than an accident within the meaning of RSSL, "it will not be disturbed."
* For purposes of the Retirement and Social Security Law, an accident is defined as "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact." An injury that results from the performance of ordinary employment duties and is a risk inherent in such job duties is not considered accidental"
Click HERE to access the Appellate Division's decision.
State Comptroller Thomas P. DiNapoli and Westchester County District Attorney Miriam E. Rocah announced the sentencing of Annette Bigelow, 61, and Mary Nash, 59, who hid their mother’s death to pocket nearly $22,000 from the New York State and Local Employees Retirement System, which DiNapoli administers, from 2013 to 2015.
The two daughters pleaded guilty to felony grand larceny in September, 2020. They were sentenced to a three-year conditional discharge and ordered to pay full restitution of $22,000.
“Annette Bigelow and Mary Nash hid their mother’s death and tried to cheat the state retirement system,” DiNapoli said. “Now they have been brought to justice and will have to repay the $22,000 they stole. I thank Westchester County District Attorney Rocah’s office for aggressively pursuing this case.”
“Our office is committed to pursuing wrongdoing in Westchester, whether the victim is a person or an entity like the state retirement system,” Rocah said. “Theft like this from the pension system is ultimately stealing from New York taxpayers, and we are glad to work with the Office of the State Comptroller to help ensure that public funds are safeguarded.”
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State Comptroller DiNapoli is committed to fighting public corruption and encourages the public to help fight fraud and abuse. Allegations of fraud involving taxpayer money may be submitted to the Comptroller by calling a toll-free Fraud Hotline at 1-888-672-4555, by mailing a complaint to the Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236, or by emailing a complaint to investigations@osc.ny.gov.
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MUNICIPAL AUDITS
Islip Fire District – Capital Assets (Suffolk County)District officials did not maintain accurate and consistent capital asset records to ensure district assets were monitored and safeguarded. District inventory records did not list 45 of 50 selected assets totaling $36,809. In addition, district officials were unable to locate seven of 50 assets totaling $7,360. Scuba gear worth $119,523 was not adequately monitored or safeguarded.
Islip Fire District – Disbursements (Suffolk County)The board made an inappropriate payment for medical expenditures totaling $21,000. The board also approved payment for 118 purchases totaling $38,563 made on district credit cards that did not have sufficient supporting documentation. In addition, the board approved payment for 58 fuel credit card transactions, consisting of 1,181 gallons of fuel totaling $2,551 that were not adequately supported. They did not always enforce the adopted travel policy when approving $125,028 in travel expenditures. District officials made 107 purchases totaling $163,233 without an approved purchase order prior to the purchase being made.
Kingston Housing Authority – Board Oversight (Ulster County) The board did not provide adequate oversight of authority operations. As a result, budgets were not entered into the financial system and financial transactions were not properly captured. Adequate oversight of disbursements, bank transfers and bank reconciliations were not achieved. Auditors determined $6.43 million in disbursements and bank transfers were made without review or approval and $1,035 in management fees were incorrectly billed. Financial system access was also not properly administered.
Town of Duanesburg – Financial Records and Reports (Schenectady County) The supervisor did not ensure that the town’s accounting records and reports were complete, accurate, up-to-date or timely. The town’s accounting records were also not reliable. Auditors determined $590,880 in revenue and $55,182 in expenditures were not recorded. The accounting records’ cash balances were overstated by about $3 million as of Dec. 31, 2019. In addition, bank reconciliations were not performed. The town board did not always receive financial reports, and reports it received were not accurate.
SCHOOL DISTRICT AUDITS
Lyncourt Central School District – Information Technology (Onondaga County) District officials did not adequately manage network user accounts or develop and adopt a written disaster recovery plan. As a result, the district has an increased risk that it could lose important data and suffer serious interruption in operations. District officials should have disabled 17 of the 113 network user accounts auditors examined. The 17 user accounts were unneeded and included generic, shared and former employee accounts. District officials should have also revoked permissions for eight of the 12 network user accounts with administrative permissions because the permissions were unneeded. Sensitive information technology control weaknesses were communicated confidentially to officials.
This decision by the Appellate Division states that the Plaintiff in this action alleged that the New York City Police Department [NYPD] had knowledge of the state of its employee's [the Deceased] mental health and, instead of accommodating the Deceased's disability, assigned him to a position that would precipitate his death.
Citing Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, after setting out the events leading to the litigation, the decision concludes as follows:
"In short, the NYPD's 'failure to reasonably accommodate [the Deceased's] disability as soon as [it knew] of that condition is the very societal ill which the relevant anti-discrimination statutes were designed to combat.
Continuing, the Appellate Division opined that "[t]he statutes recognize the employer's failure in that regard to be particularly invidious because it forces the worker either to quit his or her job in order to preserve the worker's health or else to continue working without adequate protective measures and then succumb to a debilitating impairment* ... [s]adly, here, [the deceased] succumbed to a debilitating impairment before he was properly accommodated.
The court, however, ruled that it was "unable to grant [the Deceased] any relief because [his] estate failed to invoke the very statute that was enacted to protect him."
* See Jacobsen at 843-844.
Click HEREto access the full text of the Appellate Division's decision
Plaintiff in this action alleged that his former employer defamed him in the warning letter by issuing the letter of warning and directing Plaintiff to take anti-harassment training.
In the words of the Appellate Division, Plaintiff contends that the letter, "essentially finding" that Plaintiff had violated the employer's policy, is defamatory." However, said the court, to the extent the claim is based on the letter in general, it fails to state a cause of action for defamation.
The court opined that Plaintiff paraphrased the letter in his complaint and "misstates its contents, as the letter expressly found that [Plaintiff] had not violated employer's policies."
The Appellate Division also noted that Plaintiff failed to adequately plead publication of the alleged defamatory letter. He states only that the letter, though addressed to him, was "published to the rest of the Administration." This vague and undefined phrase does not meet the particularity requirements for person and time.
Plaintiff's reliance on that part of the letter which states that the employer found Plaintiff's conduct was "unprofessional and inappropriate" and evinced a "lack of appropriate judgment," is adequately particularized, at least as to its content, being a direct and accurate quote from the letter.
In any event, the Appellate Division, citing Foster v Churchill, 87 NY2d 744, concluded that a qualified privilege attaches to statements made for a supervisory purpose in an employment context. As the letter was written by the employer in the context of an investigation into workplace conduct, the court opined that the employer was protected under the defense of qualified privilege.
Click HEREto access the Appellate Division's decision.
A probationary teacher [Plaintiff] observed a teacher providing unauthorized assistance to a student. Plaintiff contended that she immediately reported the incident, and it is undisputed that she "first put her allegations in writing in a letter dated April 19, 2013."
Plaintiff subsequently received four unsatisfactory lesson observation reports, two letters of misconduct and then received an unsatisfactory rating (U-rating) for the school year. The New York City Department of Education [DOE] did not give Plaintiff a certificate of satisfactory completion of probation and terminated her employment. Her administrative appeal was denied by a divided panel.
Plaintiff initiate a hybrid CPLR Article 78/plenary action challenging DOE's decision in Supreme Court. Ultimately the Appellate Division dismissed Plaintiff's action in its entirety "on the law."
The Appellate Division explained that DOE's decision to discontinue Plaintiff's probation and terminate her employment was based on the annual U-rating, which in turn was based on four unsatisfactory observation reports and two misconduct letters. These, said the court, provide ample evidence to support the conclusion that Plaintiff's performance was unsatisfactory, and thereby establish, for purposes of reviewing Plaintiff's Article 78 action, that Plaintiff's termination was done in good faith.
Turning to Plaintiff's seeking a court order annulling the U-rating and unsatisfactory observation reports as pretexts for a retaliatory discharge, the Appellate Division opined that this effort was unavailing as the U-rating was supported by the observation reports and misconduct letters, each of which recited first-hand observations made by the Assistant Principal and Principal and the unsatisfactory reports were "rationally based in the record."
Addressing Plaintiff's second cause of action under Civil Service Law, §75-b the Appellate Division found that Plaintiff had made a prima facie case by showing that:
1. She received numerous adverse employment actions in the form of unsatisfactory reports and ultimately loss of license and termination;
2. She disclosed what appeared to be an illegal action by a fellow teacher; and
3. The temporal connection between Plaintiff's reporting "the January 23, 2013 incident and the negative employment actions she suffered beginning in early March, suffices to establish her prima facie case on causation."
That said, the Appellate Division pointed out that an appointing authority may nonetheless initiate an adverse employment action against an employee so long the employer has an "independent basis for the action."
In the words of the Appellate Division, "Here, as discussed, [DOE] had ample independent bases for their actions against [Plaintiff], in the form of the well-documented unsatisfactory reports and a corresponding U-rating for the year. Nor is there any evidence that [DOE's] actions were pretexts for retaliation, or that [DOE] would not have taken the same actions against [Plaintiff] had she not reported the alleged teacher misconduct" and dismissed Plaintiff's second cause of action alleging the DOE had violated Civil Service Law §75-b.
Click HEREto access the text of the Appellate Division's decision.