New York State Comptroller Thomas P. DiNapoli reports that a former town clerk pled guilty to stealing almost $4,000 from the Town of Lincoln

On February 2, 2024, New York State Comptroller Thomas P. DiNapoli, Chenango County District Attorney Michael Ferrarese, and the New York State Police announced the plea and sentence of Amy Becker, former Clerk for the Town of Lincoln, for stealing nearly $4,000 from the Town. The plea was the result of a joint investigation between Comptroller DiNapoli’s Office, the Chenango County District Attorney’s Office, and the New York State Police. As part of the plea agreement she paid full restitution in the amount of $3,869.

“Ms. Becker abused her position by taking funds paid to her town and making them her own,” DiNapoli said. “Those in public service have a responsibility to act in taxpayers’ interests, not line their own pockets. I thank District Attorney Ferrarese and the New York State Police for their partnership in making sure she will be held accountable.”

New York State Police Acting Superintendent Steven G. James said, “Ms. Becker abused her position in a place of trust to concoct a devious scheme and steal funds from the town. The New York State Police will not tolerate those who misuse their position as a public servant to profit at the expense of taxpayers. I commend our State Police investigators for their outstanding work and thank the Comptroller’s Office and the Chenango County District Attorney’s Office for their partnership in solving this case.”

Becker, 54, pled guilty to petit larceny. She served as the town clerk of Lincoln from 2018 to 2022. During that time, she accepted payments for the town, including fees for marriage licenses, death certificates, and the dog pound, and was responsible for recording and depositing all funds.

During an audit of the town, DiNapoli’s office found a cash shortage. An ensuing investigation found that Becker failed to report $3,869 in cash deposits and, instead, embezzled the money for her personal use.

Becker pleaded guilty before Judge Stephanie Palmer in the Town of Lenox Court. She was ordered to, and paid, full restitution in the amount of $3,869 and received a one year conditional discharge.

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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.

 

An administrative determination denying an employee's application for benefits pursuant to General Municipal Law §207-c annulled because it was not supported by substantial evidence

A detective sergeant [Employee] contracted COVID-19 at work. As the result of a positive test for COVID-19 the County Department of Health ordered Employee to "quarantine/isolate for 10 days" and Employee was subsequently hospitalized from August 21, 2021 through August 28, 2021. Employee applied for benefits pursuant to General Municipal Law §207-c [207-c], but County Director of Risk Management [Director] Employee's application as untimely pursuant to local law. Employee's request for reconsideration was denied and ultimately a hearing held pursuant to local law and the parties' collective bargaining agreement.

The Hearing Officer recommended the Director sustain the denial of Employee's application for207-c benefits on the basis that he failed to timely file his application and failed to show good cause to excuse the untimely filing. Director issued a determination adopting the Hearing Officer's recommendation in its entirety and Employee's collective bargaining representative commenced a CPLR Article 78 proceeding challenging the Director's determination.

The Appellate Division noting §207-c requires certain municipal employers to continue to pay salary or wages to police officers who sustain a disability in the course of their employment, indicated that "The statute is remedial in nature and intended to provide a benefit to law enforcement personnel and, as such, is to be construed liberally in favor of such personnel". Further, the court opined while 207-c does not provide a procedure for applying for benefits thereunder, a benefits application process may be the subject of collective bargaining and/or local law, "Judicial review of an administrative determination made after a hearing at which evidence is taken pursuant to direction of law is limited to a consideration of whether that determination was supported by substantial evidence upon the whole record".

In the words of the court, "As relevant here [the County Code] requires, among other things, applications for benefits under General Municipal Law §207-c to be made 'within 10 days from the date of the incident alleged to have given rise to the claim of disability or illness, or from the time such condition is discovered, whichever date is later.' The [Director] may excuse the failure to file the application within this [10]-day period upon a showing of good cause."

The Director had determined that the employee's September 17 application was untimely because it was not made within 10 days of his alleged work-related incident of August 9. Under the circumstances, the Appellate Division held that it was improper for the Director to use August 9, 2021 as the incident date that commenced the 10-day period within which Employee was required to file his application for benefits as Employee's application "clearly stated that he was informed on September 9, 2021 about his lung damage stemming from his contraction of COVID-19, and it was on this date that [Employee] first discovered the disability ... that gave rise to his claim and application for benefits."

The Appellate Division found that Employee made his application was made within 10 days of September 9, 2021, and, accordingly, "the Director's determination denying his application for benefits pursuant to General Municipal Law §207-c is not supported by substantial evidence and must be annulled."

The matter was remanded to the County's Director of Risk Management "for further proceedings not inconsistent with this Court's decision."

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

 

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Unlawful discrimination complaint dismissed for lack of sufficient evidence to support employee's claim that supervisory behavior was motivated by the employee's protected status

The Appellate Division affirmed a motion court's dismissal of petitioner's [Plaintiff] CPLR Article 78 petition in which she alleged that she was the victim of unlawful discrimination, worked in a hostile work environment, and suffered retaliation within the meaning of the New York City Human Rights Law.

Citing see Harrington v City of New York, 157 AD3d 582, the Appellate Division said although Plaintiff's claim "sufficiently pleaded the first two [the four required] elements of discrimination, i.e.  her membership in a protected class and qualification for the position," she failed to [1] "adequately allege that she was treated differently or worse than her colleagues of other races, religions, and national origins under similar circumstances" and [2] "that the treatment occurred under circumstances giving rise to an inference of discrimination."

The Appellate Division opined "Plaintiff failed to identify any similarly situated colleagues who were treated more favorably because they were not Black, Christian, or Haitian." Although Plaintiff argued that she was the subject of disparate treatment as compared to a white and Jewish coworker "who was allegedly not subject to any scrutiny, was repeatedly promoted, and was permitted to work overtime," Plaintiff failed to demonstrate that she and her coworker were "similarly situated in all material respects".

Plaintiff's complaint simply stated "the coworker was less qualified and less experienced than [Plaintiff]" rather than allege coworker had the same job title as Plaintiff, had the same responsibilities or job requirements as Plaintiff, reported to the same supervisors as Plaintiff, or that she was even employed in the same unit as Plaintiff. To the extent the complaint alleged that Plaintiff was the only employee with her title who was required to clock out at lunch, she never alleged that any of her colleagues had any disputes with supervisors about wanting to work through lunch.

Plaintiff also failed to plead any facts showing that she was treated differently because of her race, religion, or national origin. Plaintiff's complaint did not allege that any of Plaintiff's colleagues or supervisors made any explicitly or implicitly invidious comments about her race, religion, or country of origin but merely claimed that on one occasion "a supervisor stated to her that she was being mistreated by a different supervisor because of her race." In the words of the Appellate Division, "[s]tray remarks such as [this], even if made by a decision maker, do not, without more, constitute evidence of discrimination."

Observing that Plaintiff was promoted in 2017, a position that she continues to hold, by the same individuals Plaintiff now claims unlawfully discriminated against her, the Appellate Division said "undercuts an inference that these individuals discriminated against her".

As to Plaintiff's hostile work environment claim, the court said "this failed for the same reason." Although Plaintiff's complaint alleged that her supervisors regularly and unjustifiably criticized her work and engaged in other behaviors, even assuming that the alleged acts or omissions amounted to more than petty slights and trivial inconveniences, the Appellate Division held that the evidence "is not sufficient to establish that [Plaintiff's] supervisors' behavior was motivated because of her protected status, such as her race, religion, or national."

As to Plaintiff allegations of retaliation following her filing a notice of claim and the charge of discrimination whereby her supervisors instituted a rule where she was required "to clock out during her lunch hour and enforced the agency's overtime cap", the Appellate Division concluded that Plaintiff "failed to plead sufficient facts as to why these mandates would dissuade a reasonable employee from complaining about discrimination, or why it constituted anything more than a trivial harm."

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

 

Does a promise of "confidentiality" authorize a New York state or municipal entity to refuse to disclose a record requested pursuant to New York State's Freedom of Information Law?

Petitioner and the Respondent had entered into a non-prosecution agreement resolving an investigation into certain of Petitioner's alleged activities in both his public official capacity and his personal capacity. Subsequently Petitioner sought to enjoin the Respondent from disclosing a certain record sought in a request made pursuant to Article 6 of the Public Officers Law, the New York State Freedom of Information Law [FOIL]. Supreme Court denied the petition and dismissed the proceeding. Petitioner appealed the Supreme Court's action.

Citing Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557, the Appellate Division held that Supreme Court properly determined that any promise of confidentiality made to the Petitioner did not afford a protection against disclosure of the non-prosecution agreement pursuant to FOIL and that the agreement requested should be released. The court explained that in Matter of M. Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75, the Court of Appeals held "FOIL imposes a broad duty on government agencies to make their records available to the public" and the exemption to disclosure pursuant to Public Officers Law §87(2)(a)* relied on by Petitioner was not applicable.

The Court of Appeals also noted that, as originally enacted, FOIL contained an exemption for records "confidentially disclosed to an agency and compiled and maintained for the regulation of commercial enterprise, including trade secrets." This "confidentially disclosed" provision was deleted when the statute was amended. 

In Washington Post v. Ins Dept, 61 N.Y.2d 557  the Court of Appeals opined "Thus,  respondent had no authority to use its label of confidentiality to prevent disclosure of the [requested document]. "(T)o allow the government to make documents exempt by the simple means of promising confidentiality would subvert FOIA's disclosure mandate" [cf. Washington Post Co. v United States Dept. of Health Human Servs., 690 F.2d 252, 263]."

* Public Officers Law §87(2)(a), in pertinent part, provides "except that such agency may deny access to records or portions thereof that:

             "(a) are specifically exempted from disclosure by state or federal statute; [In New York State the release of some public records are limited by statute. See, for example, Education Law, §1127 - Confidentiality of records; §33.13; Mental Hygiene Law - Clinical records; confidentiality.]

             "(b) if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article;

              "(c) if disclosed would impair present or imminent contract awards or collective bargaining negotiations;

              "(d) are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise; and records, among other things,

               "(e) are compiled for law enforcement purposes only to the extent that disclosure would: 

                    "i. interfere with law enforcement investigations or judicial proceedings, provided however, that any agency, which is not conducting the investigation that the requested records relate to, that is considering denying access pursuant to this subparagraph shall receive confirmation from the law enforcement or investigating agency conducting the investigation that disclosure of such records will interfere with an ongoing investigation;" 

Click HERE to access the Appellate Divisions decision posted on the Internet.