Terminating a probationary employee without a hearing

Supreme Court rejected Plaintiff's the petition to annul the determination of New York City Department of Education [DOE] which discontinued the Plaintiff's probationary employment as an assistant principal, and dismissing the proceeding brought pursuant to CPLR Article 78. The Appellate Division unanimously affirmed the Supreme Court's ruling.

Appellate Division explained that the Plaintiff failed to demonstrate that her probationary employment as assistant principal was terminated in bad faith, in violation of a law, or for an impermissible reason. The record, said the court, showed that DOE discontinued Plaintiff's employment as a probationary employee because of her failure to comply with directives, complete assignments, and in consideration of a "two-year history of poor work performance."

Citing Childs v Board of Educ. of the City of N.Y., 176 AD3d 560, the Appellate Division noted that in the absence of a demonstration that a probationer's  discontinuance of employment was made in bad faith or in violation of the law, a probationary employee, may be discharged without a hearing.

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

 

Former Town of Beekman tax collector pleads guilty to embezzling $86,000 for personal expenses

On April 20, 2022 New York State Comptroller Thomas P. DiNapoli announced that Jennifer Colucci, 41, of Hopewell Junction, pleaded guilty to stealing more than $86,000 in tax funds collected for the use of the Town of Beekman and its schools. This plea was a result of a joint investigation between Comptroller DiNapoli’s Office, the New York State Police and Dutchess County D.A. William Grady. 

“Ms. Colucci treated the Town’s treasury like her personal piggybank* and now faces the consequences of her actions,” DiNapoli said. “This case should be a warning to anyone contemplating a betrayal of the public’s trust: you will be held accountable for your actions. I thank Dutchess County D.A. William Grady and the State Police for their partnership in bringing this corruption to light and helping to combat abuse of taxpayers’ trust.”

“Jennifer Colucci put her greed ahead of the community these tax funds were meant to support,” State Police Superintendent Kevin P. Bruen said. “This guilty plea demonstrates the hard work of the New York State Police and our law enforcement partners. I commend and thank the State Comptroller’s Office and Dutchess County District Attorney’s Office for their commitment to investigating those who victimize the unsuspecting public for their own gain.”

Colucci pleaded guilty to Grand Larceny in the 4th Degree and Corrupting the Government in the 3rd Degree and was ordered to pay $86,389.62 in restitution in Dutchess County Court before Judge Edward T. McLoughlin. She is due back in court on June 17, 2022. 

Colucci used the Town’s money to shop online, order food deliveries, and make car loan payments. She served as Beekman tax collector for two years, ending in August 2020. 

* The practice of using a public office or position of trust for one's own gain or advantage is know as Jobbery.

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Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.ny.gov, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

Corruption, fraud, or misconduct in procuring an arbitration award

Supreme Court denied a petition to confirm an arbitration award under color of CPLR §7511.  

§7511 of the CPLR provides, in pertinent part, that an "arbitration award shall be vacated if the court finds that the rights of the complaining party were prejudiced by corruption, fraud, or misconduct in procuring the award." Noting that "[a] party seeking to overturn an arbitration award bears a heavy burden and must establish a ground for vacatur by clear and convincing evidence," the Appellate Division affirmed the Supreme Court's decision.

Citing Goldfinger v Lisker, 68 NY2d at 232-233, the Appellate Division explained that there was "clear and convincing evidence" that the arbitrator committed misconduct and that such misconduct "prejudiced the [Responent's] rights or the integrity of the arbitration process."

Respondents had submitted an affirmation executed by the arbitrator in which the arbitrator "averred that almost a year after the end of the arbitration proceeding, he received information from the [Petitioner] and 'others speaking for' the [Petitioner]  concerning the work that was the subject of the arbitration," and "[b]ased on this information," the arbitrator decided to render the award at issue "without first providing the [R]espondents an opportunity to respond to the information."

In the words of the Appellate Division, "The arbitrator's admitted consideration of evidence received from one party, without providing the other party the opportunity to respond, along with evidence in the record of ex parte communications, established by clear and convincing evidence that the arbitrator committed prejudicial misconduct."

Click HEREto access the Appellate Division's decision posted on the Internet.

 

Defendant admits to stealing in excess of $51,000 of her deceased mother’s pension

New York State Comptroller Thomas P. DiNapoli and Orange County District Attorney David M. Hoovler announced that on Thursday, April 14, 2022, Valerie White, 58, of Middletown, pled guilty in Orange County Court to Grand Larceny in the Third Degree. Under the plea agreement announced on the record at the time of the guilty plea, White was ordered to pay restitution in the amount of $51,532.64, which is the total funds that White illegally stole from the state pension system.* 

White’s mother was a pensioner, vested in the New York State and Local Retirement System (NYSLRS). At the time that White’s mother retired in 2000, she elected to receive her pension benefits in full until her death. When White’s mother died in 2017, the death was not reported to NYSLRS and pension benefits continued to be made to an account that White jointly held with her mother. As a result, from 2017 until NYSLRS learned of the pensioner’s death in 2019, over $54,000 were unjustly deposited into the account. While NYSLRS was able to claw back approximately $2,500 of the amount stolen, the remaining was spent by White on personal expenses. At the time of her plea, White admitted to stealing the money and that she knew she did not have permission or authority to take the funds.

“Ms. White thought she could get away with defrauding the New York State and Local Retirement System of over $50,000, but she was wrong,” said New York State Comptroller Thomas P. DiNapoli. “Today’s guilty plea should be a warning sign to anyone attempting to steal state pension benefits that my office will find you and work with law enforcement to hold you accountable. I thank Orange County District Attorney Hoovler for his continued partnership and steadfast commitment to holding those who try to defraud the public accountable.”

District Attorney Hoovler thanked the New York State Comptroller’s Office and the New York State Police for their joint investigation of White that led to her arrest.

“The State pension system is the backbone of the hard-working public servants throughout the State,” said District Attorney Hoovler. “That this defendant would seek to manipulate the system for her own benefit is reprehensible. I am thankful for the dedicated investigation conducted by the Comptroller’s Office together with the New York State Police that ensured this defendant would be held accountable for her actions.”

The case is prosecuted by Assistant District Attorney Tanja Beemer. 

* A criminal charge is merely an allegation by the police that a defendant has committed a violation of the criminal law, and it is not evidence of guilt. All defendants are presumed innocent and entitled to a fair trial, during which it will be the State of New York’s burden to prove guilt beyond a reasonable doubt.

New York State's Comptroller releases fiscal stress scores for certain New York State villages and cities

On April 13, 2022 New York State Comptroller Thomas P. DiNapoli announced that 10 villages and two cities have been designated as being in fiscal stress under his Fiscal Stress Monitoring System. DiNapoli evaluated all non-calendar year local governments and designated one city and two villages in “moderate fiscal stress” and eight villages and one city as “susceptible to fiscal stress.”

While no municipalities were in the highest category of “significant fiscal stress,” the Comptroller noted that 73 villages and cities have not filed their financial information, as required. These scores also largely reflect the period when local governments in New York received federal relief funds to assist them in recovering from the COVID-19 pandemic.

“The financial landscape for many local governments has improved with the infusion of federal aid and stronger economic activity,” DiNapoli said. “The relief funds are temporary, so it is critical that local communities make changes, including carefully managing debt and engaging in long-term planning, that help improve their financial outlook for years down the road.”

The latest round of fiscal scores evaluated local governments with fiscal years ending between Feb. 28 and July 31. DiNapoli’s office evaluated the fiscal health of 522 villages, which predominantly have a fiscal year ending on May 31, based on self-reported data for 2021. The scores also cover the 17 cities with non-calendar fiscal years, including the “Big 4” cities of Buffalo, Rochester, Syracuse and Yonkers, each of which have fiscal years ending on June 30.

Amsterdam (Montgomery County) was the only city in “moderate fiscal stress” with a score of 58.3. Last year, Amsterdam was ranked in “significant fiscal stress” with a score of 75. The villages of Addison (Steuben County) and South Dayton (Cattaraugus County) were also in “moderate fiscal stress.” Both villages were ranked in “susceptible to fiscal stress” last year but jumped in score this year with Addison going from 53.8 to 61.7 and South Dayton going from 47.5 to 55.4.

The system, which has been in place since 2012, assesses levels of fiscal stress in local governments using financial indicators including year-end fund balance, cash position, short-term cash-flow borrowing and patterns of operating deficits. It generates overall fiscal stress scores, which ultimately drive final classifications. The system also analyzes separate environmental indicators to help provide insight into the health of local economies and other challenges that might affect a local government’s or school district’s finances. This information includes population trends, poverty and unemployment.

DiNapoli’s office also has a self-assessment tool that allows local officials to calculate fiscal stress scores based on current and future financial assumptions. Officials can use this tool to assist in budget planning, which is especially helpful during periods of revenue and expenditure fluctuations.

In January, 2022 DiNapoli released fiscal stress scores for school districts. In September, 2022 scores for municipalities with a calendar-year fiscal year, which includes all counties, towns, most cities and a few villages, will be released.

List of Villages and Cities in Fiscal Stress

Municipalities in Fiscal Stress

List of Villages and Cities that Failed to File Financial Information

Municipalities that Failed to File or Inconclusive List

Complete List of Fiscal Stress Scores

Data Files

FSMS Search Tool

Tool

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Track state and local government spending at Open Book New York. Under State Comptroller DiNapoli’s open data initiative, search millions of state and local government financial records, track state contracts, and find commonly requested data.