Employees seeking reinstatement following submitting a resignation must comply with the controlling law, rule or regulation

In Sanchez v The Department of Education of the City of New York, 2022 NY Slip Op 00954, the Appellate Division held that Sanchez, the petitioner in this CPLR Article 78 action, was not entitled to the restoration of his tenure upon his return from resignation as he failed to provide 30 days' notice of his resignation. The court explained that the Department of Education's action was not arbitrary and capricious, noting that "[J]udicial deference to an agency's interpretation of its own regulations is a basic tenet of administrative law," citing Andryeyeva v New York Health Care, Inc., 33 NY3d 152, and that it had previously ruled that "DOE employees must 'strictly' comply with the procedures set forth in Chancellor's Regulation C 205," citing Matter of Vaccaro v Board of Educ. of the City Sch. Dist. of the City of N.Y., 139 AD3d 612.

Click HEREto access the text of the Appellate Division's ruling.

Tennessee woman pleads guilty to receiving deceased mother’s retirement system benefits

New York State Comptroller Thomas P. DiNapoli joined the United States Attorney for Eastern District of Tennessee (EDTN) in announcing that Leslie Schwinzer has pleaded guilty to wire fraud (18 USC. §1343) in the U.S. District Court at Knoxville, TN for stealing $56,352 from the New York State and Local Retirement System (NYSLRS). This case was the result of a joint investigation with the Social Security Administration Inspector General’s Office (SSAIG), the EDTN and the Comptroller’s Office.

In February of 2021, SSAIG contacted NYSLRS and informed them that a pension beneficiary, Shirley Conklin, had died on July 3, 2018, and all payments should have stopped after her death. SSAIG also informed NYSLRS that no death certificate had been issued for Conklin’s death, just a police report. After Conklin’s death, she continued to receive both monthly NYSLRS payments and bi-weekly Social Security payments in a joint account with her daughter, Schwinzer, 46, of Madisonville, TN. Schwinzer failed to notify NYSLRS and the Social Security Administration of her mother’s death and was not authorized to receive either payment.

The 31 monthly pension fund payments totaled $56,352 and were deposited into the joint account, with Schwinzer withdrawing that amount in funds. During this same period, Schwinzer took out an additional $35,871 in Social Security payments after her mother’s death that she was not entitled to.

In total, she withdrew approximately $92,223 in NYSLRS and Social Security payments from her mother’s account.

“Ms. Schwinzer hid her mother’s death for two years to steal money from the New York State and Local Retirement System,” DiNapoli said. “I thank the United States Attorney for the Eastern District of Tennessee and the Social Security Administration Inspector General for working across state lines to assist in our efforts to root out fraud and hold Schwizner accountable.”

Schwinzer was charged with one count of wire fraud (18 USC. §1343) in the EDTN on January 27, 2022. She has agreed to pay $56,352 in restitution to NYSLRS. Sentencing is set for July 14, 2022, in United States District Court for the EDTN at Knoxville.

 

Providing benefits to employees greater than those mandated by law

In the course of collective bargaining pursuant to Article 14 of the Civil Service Law [the Taylor Law] the City of Troy agreed to permit its police officers to receive benefits from outside employment while on various types of sick leave, including leave pursuant to General Municipal Law §207-c. The City's discretion in permitting outside employment is conditioned by the terms of the settlement agreement in that "approval shall not be unreasonably withheld." 

Citing Matter of City Troy[Troy Police Benevolent & Protective Assn., Inc.], 191 AD3d at 1207, the Appellate Division observed that "Such a self-imposed restriction on its own discretion does not violate public policy" as the City  retained its discretion in approving outside employment to a police officer while on General Municipal Law §207-c leave but agreed that it would not unreasonably withhold approval.

In addition, the Appellate Division noted that as part of its collective bargaining negotiations, a municipality may "provide benefits to its employees in excess of those provided by General Municipal Law §207-c," citing Matter of City of Plattsburgh [Plattsburgh Police Officers Union AFSCME Local 82], 250 AD2d 327, leave to appeal  denied93 NY2d 807].

 Thus, said the court, the City "has not demonstrated that it would be unlawful under any statute, precedent or public policy to refer this grievance to arbitration," citing Matter of City of Ithaca [Ithaca Paid Fire Fighters Assn., IAFF, Local 737], 29 AD3d 1129.

In Matter of City of Plattsburgh the relevant collective bargaining agreement provided that disabled police officers were entitled to receive benefits in accordance with §207-a of the General Municipal Law otherwise available to disabled firefighter injured in the line of duty rather than §207-c available to police officers injured in the line of duty. When Plattsburgh refused to provide disabled police officers §207-a benefits, the union demanded that the resulting grievances be submitted to arbitration, Plattsburgh objected to arbitrating the issue and in an effort to obtain a stay of the arbitration, the City contended that the disputed contract provision:

    1. Had been included in the contract by mistake and

    2. The benefits to be provided disabled police officers are limited to those set out in General Municipal Law §207-c.

The Appellate Division held that the alleged mistake at issue, as well as the meaning and impact of the provision modifying the statutory §207-c benefits as set out in the collective bargaining agreement, was for the arbitrator to resolve and denied Plattsburgh’s application to stay arbitration. The arbitrator ruled in favor of the union and awarded the injured police officers §207-a benefits otherwise only available to firefighters injured in the line of duty.

Click HERE to access the Troy decision by the Appellate Division.

Per- and Polyfluoroalkyl Substances (PFAS) Articles

Per- and Polyfluoroalkyl Substances (PFAS) Articles by Dr. Robert A. Michaels, NYPPL's science consultant, are available for free download via https://www.researchgate.net/profile/Robert_Michaels3/publications

Michaels, RA. Protecting science and public health in communities – PFOA and possible cancer clusters in the Village of Hoosick Falls, Rensselaer County, New York. Environmental Claims Journal, 30(1):58-70, January-March 2018, doi: 10.1080/10406026.2017.1422660, (https://doi.org/10.1080/10406026.2017.1422660), published online 31 January 2018;

Michaels, RA.  Confidence in courts: a delicate balance. Science Magazine, 357(6353):764, Letters, http://dx.doi.org/10.1126/science.aao3967, 25 August 2017;

 Michaels, RA. Lessons learned from legacy contaminants of emerging concern: perfluoroalkyl compounds (PFCs) in the Village of Hoosick Falls, Rensselaer County, New York. Environmental Claims Journal, 29(1): doi 10.1080/10406026.2016.1270666, url link: http://dx.doi.org/10.1080/10406026.2016.1270666, February 2017;

Michaels, RA. Perfluoroalkyl compounds (PFCs) in the Village of Hoosick Falls, Rensselaer County, New York: health risks and successive approximation toward enforceable national regulation. Albany, New York State Bar Association, NYSBA, New York Environmental Lawyer, 36(2):88-111, Fall 2016;

Michaels, RA. Testimony before a joint New York State Assembly and Senate hearing on drinking water quality and contamination, Standing Committees on Health and Standing Committees on Environmental Conservation; Albany, New York State Assembly and New York State Senate, 10.13140/RG.2.2.15054.46407, 6 pages, 7 September 2016;

Michaels, RA. Testimony on drinking water contamination with perfluorooctanoic acid (PFOA) before the New York State Senate Standing Committee on Health and Standing Committee on Environmental Conservation; Albany, New York State Senate, doi: 10.13140/RG.2.2.31831.68006, 5 pages, 30 August 2016.

CONTACT INFORMATION

Dr. Robert A. Michaels; PhD, CEP

President, RAM TRAC Corporation Schenectady, New York

(518) 785-0976

www.ramtrac.com

bam@ramtrac.com