Employee serving a disciplinary probation period challenging his dismissal is required to show that his termination from employment was made in bad faith

Supreme Court rejected the CPLR Article 78 petition filed by a former New York City police officer [Plaintiff] seeking to annul the New York Police Department's [NYPD] decision to terminate his employment while he was serving "on dismissal probation." Plaintiff contended that the termination of his employment as a police officer was made in bad faith in an effort "to frustrate his application for Accidental Disability Retirement [ADR] benefits".*

Plaintiff appealed but the Appellate Division unanimously affirmed the Supreme Court's ruling.

Plaintiff, said the court, "failed to demonstrate that [NYPD] dismissed him in bad faith," noting that Plaintiff's dismissal was recommended after ADR benefits had been denied him. 

Further, opined the court, any delays in Plaintiff's dismissal were explained by the investigation undertaken by NYPD, which took months to complete.

*  Section 13-173.1 of the Administrative Code of the City of New York requires an employee subject to its provisions to "be in service" on the effective date of his or her retirement or vesting of retirement benefits. If the employee is not "in service" on that date, he or she forfeits his or her retirement benefits.

Click HERE to access the Appellate Division's decision.

Using a public office or position of trust for personal gain or advantage

In a press release dated September 10, 2021 captioned Corrupt Orange County IDA officials ordered to repay over $1 million, New York State Comptroller Thomas P. DiNapoli and Orange County District Attorney David M. Hoovler announced that three former officials of the Orange County Industrial Development Agency [IDA], who pleaded guilty in June to corruption charges, including hiding self-dealing and concealing conflicts of interest, were to pay more than $1 million in restitution.  Orange County Court Judge Robert Prisco presided over the sentencing.

Vincent Cozzolino was sentenced to five years probation and on September 10, 2021 paid $1 million in restitution for his conviction of Corrupting the Government in the third degree, a class D felony. Also on September 10, 2021, Laurie Villasuso paid $175,000 in restitution based on her conviction of Corrupting the Government in the fourth degree, a class E felony.

Edward Diana was sentenced upon his conviction of two counts of Offering a False Instrument for Filing in the second degree and one count of Engaging Prohibited Conflict of Interest, both class A misdemeanors. On September 10, 2021, the former county executive paid full restitution in the amount of $90,000.

Comptroller DiNapoli and D.A. Hoovler also released a report detailing the defendants’ crimes and how the systemic failures and neglect of duty by the IDA board and its officials enabled their scheme. 

Click HEREto access this 91 page publication.

The practice of using a public office or position of trust for personal gain or advantage is sometimes referred to as "Jobbery."

The press release reported:

 1. The investigation revealed that former IDA Managing Director Cozzolino entered into a series of contracts (funneled through his company, Galileo Technology Group) with the IDA with vague and seemingly overlapping responsibilities affording him complete control of the Accelerator Program;

2. To further cement his power and despite blatant conflicts of interest, former CEO Villasuso and former board member and Accelerator Committee Chair Diana, were “hired” by Cozzolino’s private company, which received millions in payment from the IDA. Villasuso and Diana were the two IDA officials primarily charged with overseeing the Accelerator program.  Diana admitted to receiving $90,000 in payments from Cozzolino’s firm for merely attending 20 meetings and “a couple” of phone calls;

3. The IDA’s board abdicated its fiduciary duty and acted as a mere rubber stamp for Cozzolino which he exploited for his personal gain and the enrichment of his co-conspirators; and 

4. The IDA board failed to review contracts, invoices or engage in any meaningful oversight which may have exposed the malfeasance. 

Comptroller DiNapoli and District Attorney Hoovler issued a number of recommendations in the report for the new board to implement and to ensure effective review and to promote enhanced IDA governance. 

This investigation was conducted in partnership between the Office of the State Comptroller’s Division of Investigations, the Orange County District Attorney’s Office and the Town of New Windsor Police Department.

Information concerning New York State's Productivity Enhancement Program for 2021 is now available

On Friday, September 10, 2021, Jessica Rowe, Director of Staffing Services, New York State Department of Civil Service, distributed §26.3 of New York State's Attendance and Leave Policy Bulletin 2021--02 addressing the Productivity Enhancement Program [PEP] for 2021. 

PEP permits eligible employees of the State as the employer in the Executive Branch of government represented by the Public Employees Federation [PEF] to exchange previously accrued annual leave [vacation] and, or, personal leave credits in return for a credit to be applied toward their employee share of New York State Health Insurance Plan [NYSHIP] premiums. For 2021, the prorated PEP credit will be credited among the State paydays that fall between September 29, 2021 and December 22, 2021. 

Internet links to the Program Description and the Enrollment Form for the 2021 PEP Program are provided below.

N.B. The enrollment period for 2021 will be open from Monday, September 13, 2021 through Friday, October 1, 2021.

Ms. Rowe said:

"The starting and ending dates of the PEP Program for 2021 are detailed in the Program Description.  The enrollment period for 2021 will be open from Monday, September 13, 2021 through Friday, October 1, 2021.

"Implementation of the program will require action on the part of agency personnel officers, agency timekeepers, and agency health benefits administrators (HBAs).  Specifically, agency personnel officers will be responsible for (1) providing interested employees with program descriptions and enrollment forms; (2) verifying employee eligibility to participate; and (3) notifying timekeepers and health benefits administrators of participant enrollments and separations from service.  Agency timekeepers will be responsible for adjusting the vacation and/or personal leave balances of participants upon enrollment. 

"HBAs are responsible for processing the Health Insurance Premium Contribution Credit (HIPCC) for PEP enrollees.  The Employee Benefits Division will be issuing a separate document with specific instructions for HBAs.  Questions regarding health insurance transactions should be directed to your agency’s processor in the Employee Benefits Division by calling the HBA Help Line at (518) 474-2780."

Below are the Internet links to the Program Description and the Enrollment Form for the 2021 PEP Program:

PEP Program Description

Enrollment Form

Address questions regarding employee eligibility and leave transactions to the Attendance and Leave Unit of the Department of Civil Service at (518) 457-2295.

 

An individual whose Freedom of Information request for public records was denied exhausts administrative remdies by sending a timely objection to the denial to the chief executive or his designee

 

In this CPLR Article 78 proceeding to compel a public entity to comply with petitioners' [Plaintiff's] requests pursuant to the Freedom of Information Law [FOIL] (Public Officers Law Article 6), the custodian of the records [Custodian] appealed Supreme Court's judgment that determined that Plaintiffs had "substantially prevailed in the proceeding" and awarded Plaintiffs attorney fees and costs. The Appellate Division unanimously affirmed the Supreme Court's ruling.

The court said it concluded that Plaintiff had properly brought this proceeding after the Custodian [1] failed to meet its anticipated date for producing documents in response to one of petitioners' FOIL requests and [2] ignored petitioners' additional FOIL requests.

The Appellate Division then rejected the Custodian's claim that the Plaintiffs failed to exhaust their administrative remedies prior to commencing their Article 78 action, explaining that §89[4][a] of the  Public Officers Law provides that "any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity, or the person therefor designated by such head, chief executive, or governing body." In the instant matter, said the court, Plaintiffs had exhausted their administrative remedies by sending timely letters to the Custodian objecting to its denial of their requests and asking the Custodian to consider their letter "appeals pursuant to Public Officers Law §89(4)(a)."

As to the Custodian's objection to Supreme Court's awarding Plaintiffs attorney's fees, arguing that "they did not 'substantially' prevail within the meaning of FOIL's fee-shifting provision," the Appellate Division opined that Plaintiffs "received a complete response to their requests only after commencing the instant proceeding," and saw no reason "to disturb Supreme Court's award of attorney's fees and costs."

Click HERE to access the Appellate Division's decision.

Federal, State and Municipal officials take action addressing the impact of the remnants of Hurricane Ida imperiling of health and safety of those living in New York City and adjacent areas

On September 9, 2021, Governor Kathy Hochuland the Federal Emergency Management Agency announced the openings of several Disaster Recovery Centersthat will provide information, assistance and help for New Yorkers who were impacted by the storms and flooding caused by the remnants of Hurricane Ida while New York City Mayor Mayor Bill de Blasio issued Emergency Executive Order 346 addressing unsafe conditions imperiling health and safety.

 

Recovery specialists from FEMA and the U.S. Small Business Administration will be available to answer questions and provide information on the types of federal help available to homeowners, renters and business owners as a result of the major disaster declarations stemming from the hurricane. The Boroughs of the Bronx, Queens, Kings, Richmond and Westchester County were designated for Individual Assistance under the major disaster declaration for the Remnants of Hurricane Ida.

Mayor de Blasio's Emergency Executive Order is set out below:

WHEREAS, the public safety was imperiled by a flash flood emergency caused by the remnants of Hurricane Ida that flooded roads, impacted mass transit, stranded motorists, and caused widespread damage to residential and commercial buildings throughout the City, causing unsafe conditions in those buildings and imperiling health and safety;

WHEREAS, the state of emergency to address the remnants of Hurricane Ida, declared in Emergency Executive Order No. 230, and extended most recently by Emergency Executive Order No. 234, remains in effect; and

WHEREAS, additional reasons for requiring the measures continued in this Order are set forth in Emergency Executive Order No. 235;

NOW THEREFORE, by the power vested in me as Mayor of the City of New York pursuant to law, including Executive Law § 24, I hereby order:

Section 1.  I hereby direct that sections 1, 2, 3, 4 of Emergency Executive Order No. 235, dated September 7, 2021, are extended for five (5) days.

§ 2.  The City Cleanup Corps and relevant agencies shall work to clear debris in affected areas on both public and private property.

§ 3.  I hereby direct, in accordance with section 25 of the Executive Law, New York Civil Service Law 61(2) and Rules of the Personnel Rules and Regulations of the City of New York 5.1.1, that the City Cleanup Corps and staff from any agency, as designated by their Agency Head, shall assist the Commissioner of New York City Emergency Management to carry out the directives set forth in this Order.  The Commissioner of New York City Emergency Management is further directed to take all necessary steps required to carry out the directives set forth in the Order.

§ 4.  This Emergency Executive Order shall take effect immediately and shall remain in effect for five (5) days unless it is terminated or modified at an earlier date.

Bill de Blasio
Mayor Bill de Blasio