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Contemptproceeding used to enforce a court order directing reinstatement
Angel Nunez v City of New York, 43 AD3d 808
Angel Nunez obtained a court order directing hisreinstatement to his former position, or a comparable position, with the NewYork City Department of Sanitation, together with back pay and benefits [Cityof New York v New York State Div. of Human Rights, 229 AD2d 307, leave toappeal denied, 89 NY2d 801]. Sanitation, however, neither reinstated Nunez tohis former position nor to an equivalent position.
Nunez then petitioned the court to compel his reinstatement.Supreme Court dismissed his petition to have the Department to reinstate him,ruling that he delayed too long in bringing his action and thus Nunez wasguilty of laches
The Appellate Division reverse the lower court’s ruling,noting that although Nunez, an attorney, had waited 15 months before bringingthe matter to the attention of the court rather than seeking earlier judicialintervention, both he and the Department had contributed to the delay.
The Appellate Division said that Nunez’s recourse was tobring a contempt proceeding when the Department failed to comply with the orderof the court. It said that it “was futile to insist that [Nunez] bring a newcomplaint with the Division of Human Rights before seeking enforcement.” Itthen converted Nunez’s action into a “contempt proceeding” and remanded thecase to Supreme Court for a hearing.
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2007/2007_07072.htm
31 Aralık 2012 Pazartesi
Pension Fund permitted to credit report of the scene were the alleged accident occurred made at the time of the event over a description of the scene made two years later
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Pension Fund permitted to credit report of the scene werethe alleged accident occurred made at the time of the event over a descriptionof the scene made two years later
Lang v Kelly, 2012 NY Slip Op 08788, Appellate Division, First Department
Board of Trustees of Police Pension Fund of Police Dept. of City of New York,by a tie vote, rejected Jean Lang’s application for accidental disabilityretirement benefits.
Supreme Court dismissed Lang’s Article 78 petition challenging the rejection of her application and theAppellate Division affirmed the lower court’s ruling. The Appellate Division held that Lang “failed to demonstrateas a matter of law that her injury was the result of an accident, i.e., asudden, unexpected, out of the ordinary event, rather than a misstep during theroutine performance of her job.”
According to the decision, Lang was injured when she trippedover computer wires extending across the threshold of the doorway between tworooms. In a statement made contemporaneously with the accident, Lang indicatedthat the wires were "exposed."
Two years later, however, Lang submitted a statementindicating that the wires had initially been secured to the floor with ducttape and that the tape was removed on the day she fell.
The Appellate Division held that the Pension Fund wasentitled to credit Lang's contemporaneous account and reject her more recentstatement that the condition of the wires changed on the day of the accident,explaining that the Fund “reasonably inferred that, since the wires had been inplace for several months before [Lang’s] fall, she must have been aware of themand routinely stepped over them.
Another case illustrating the importance of a comprehensive physical description of the scene where the event occurred in the initial accident report is Slagle v McCall, 293 AD2d 923.
John K. Slagle, a firefighter, was injured while respondingto a fire. According to the decision, the incident report and application foraccidental disability retirement filed by Slagle both indicated that as hestepped over a downed chain link fence his boot caught on the fallen fence,causing him to fall.
Slagle, however, testified at his disability hearing beforethe Retirement System that he was unaware of the fallen fence because it washidden in tall grass and weeds. Significantly, said the court, no mention of"tall grass and weeds" was noted in either Slagle's incident reportor his application for accidental disability retirement benefits.
Slagle argued that his encounter with the fence and hissubsequent fall constituted an accident since it was "sudden andunexpected." The Comptroller, however, concluded that Slagle's injury wasthe result of a misstep as he attempted to step over the fallen fence and that,therefore, he did not sustain an accident within the meaning of the Retirementand Social Security Law. The Appellate Division sustained the Comptroller'sdetermination.
The court said that assuming that Slagle's testimony that hewas unaware of the fence was sufficient to demonstrate an accident,"neither the accident report filed by [Slagle] shortly after the injurynor his application for benefits contained any reference to tall grass, weeds orthe hidden nature of the fallen fence."
The court found that incident report and disabilityretirement application form submitted by Slagle provided the substantialevidence necessary to support the Comptroller's finding that "Slagle'sfall was caused by his misstep or miscalculation in attempting to step over thefallen fence while engaged in the performance of his ordinary employmentduties."
Thus, said the court, "there is no basis to disturb theComptroller's conclusion that [Slagle] did not sustain an accident."
Clearly including references to "tall grass andweeds" hiding the downed fence might not have guaranteed approval ofSlagle's application for accidental disability retirement benefits. However,the information he initially supplied in the incident report and in his application forbenefits, despite his somewhat different testimony at the hearing, provedsufficient to allow the Comptroller to base his decision solely on theinformation contained in the incident report and Slagle's disability retirementapplication form.
The Lang decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08788.htm
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General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections207-a/207-c and providing benefits thereunder and other disability retirementissues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ foradditional information about this electronic reference manual.
====================================
Pension Fund permitted to credit report of the scene werethe alleged accident occurred made at the time of the event over a descriptionof the scene made two years later
Lang v Kelly, 2012 NY Slip Op 08788, Appellate Division, First Department
Board of Trustees of Police Pension Fund of Police Dept. of City of New York,by a tie vote, rejected Jean Lang’s application for accidental disabilityretirement benefits.
Supreme Court dismissed Lang’s Article 78 petition challenging the rejection of her application and theAppellate Division affirmed the lower court’s ruling. The Appellate Division held that Lang “failed to demonstrateas a matter of law that her injury was the result of an accident, i.e., asudden, unexpected, out of the ordinary event, rather than a misstep during theroutine performance of her job.”
According to the decision, Lang was injured when she trippedover computer wires extending across the threshold of the doorway between tworooms. In a statement made contemporaneously with the accident, Lang indicatedthat the wires were "exposed."
Two years later, however, Lang submitted a statementindicating that the wires had initially been secured to the floor with ducttape and that the tape was removed on the day she fell.
The Appellate Division held that the Pension Fund wasentitled to credit Lang's contemporaneous account and reject her more recentstatement that the condition of the wires changed on the day of the accident,explaining that the Fund “reasonably inferred that, since the wires had been inplace for several months before [Lang’s] fall, she must have been aware of themand routinely stepped over them.
Another case illustrating the importance of a comprehensive physical description of the scene where the event occurred in the initial accident report is Slagle v McCall, 293 AD2d 923.
John K. Slagle, a firefighter, was injured while respondingto a fire. According to the decision, the incident report and application foraccidental disability retirement filed by Slagle both indicated that as hestepped over a downed chain link fence his boot caught on the fallen fence,causing him to fall.
Slagle, however, testified at his disability hearing beforethe Retirement System that he was unaware of the fallen fence because it washidden in tall grass and weeds. Significantly, said the court, no mention of"tall grass and weeds" was noted in either Slagle's incident reportor his application for accidental disability retirement benefits.
Slagle argued that his encounter with the fence and hissubsequent fall constituted an accident since it was "sudden andunexpected." The Comptroller, however, concluded that Slagle's injury wasthe result of a misstep as he attempted to step over the fallen fence and that,therefore, he did not sustain an accident within the meaning of the Retirementand Social Security Law. The Appellate Division sustained the Comptroller'sdetermination.
The court said that assuming that Slagle's testimony that hewas unaware of the fence was sufficient to demonstrate an accident,"neither the accident report filed by [Slagle] shortly after the injurynor his application for benefits contained any reference to tall grass, weeds orthe hidden nature of the fallen fence."
The court found that incident report and disabilityretirement application form submitted by Slagle provided the substantialevidence necessary to support the Comptroller's finding that "Slagle'sfall was caused by his misstep or miscalculation in attempting to step over thefallen fence while engaged in the performance of his ordinary employmentduties."
Thus, said the court, "there is no basis to disturb theComptroller's conclusion that [Slagle] did not sustain an accident."
Clearly including references to "tall grass andweeds" hiding the downed fence might not have guaranteed approval ofSlagle's application for accidental disability retirement benefits. However,the information he initially supplied in the incident report and in his application forbenefits, despite his somewhat different testimony at the hearing, provedsufficient to allow the Comptroller to base his decision solely on theinformation contained in the incident report and Slagle's disability retirementapplication form.
The Lang decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08788.htm
====================================
General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections207-a/207-c and providing benefits thereunder and other disability retirementissues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ foradditional information about this electronic reference manual.
====================================
Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli
To contact us Click HERE
Selected reports andinformation published by New York State's Comptroller Thomas P. DiNapoli
New York State Comptroller Thomas P. DiNapoliannounced that the following audits have been issued:
SUNY at New Paltz Selected Employee TravelExpenses (2012-S-140)
Auditors examined thetravel expenses for one college employee whose travel charges totaled $269,627. Theyfound that the selected employee was responsible for arranging travel for othercollege staff members, charging these travel expenses to her travel card.Auditors reviewed a sample of charges to this employee’s travel card and foundthe expenses were documented and adhered to state travel rules and regulations.
Department of Economic Development Quality ofInternal Control Certification (2012-S-48)
In 1987, theLegislature passed the New York State Governmental Accountability, Audit andInternal Control Act requiring state agencies and public authorities to eachinstitute a comprehensive system of internal controls over their operations.Each covered State agency and public authority is required to certifycompliance with act by April 30 of each year. DED's Internal ControlCertification was submitted timely.
However, auditors identified several areaswhere the quality of the certification could be improved. In threeinstances, DED's certification did not provide the required level of detail toexplain the actual steps taken to implement certain provisions, includingdescribing its internal control testing and monitoring processes and theresults of its reviews of high risk activities. Although DED certifiedfull compliance with all provisions of the act, its internal audit function hasnot had an external quality control assessment completed as required byprofessional auditing standards.
Office of General Services Disposal ofElectronic Devices (2012-S-4)
The New York StateOffice of Cyber Security requires all state entities to establish formalprocesses to address the risk that information may be improperly disclosed.Information can be compromised through careless disposal of electronicequipment. OGS' surplus unit disposes of such equipment for many Stateagencies.
The Surplus Unit does not accept any responsibility for clearing thedata from these devices. However, OGS' Information Resource Management (IRM)bureau provides IT support for some state agencies. In these cases, IRM isresponsible for removing information from the devices prior to making themavailable to the surplus unit.
At the time of the audit, the surplus unit had429 electronic devices in its possession for disposal and IRM was responsiblefor removing information from 25 of the devices on hand. Of these, three didnot have information completely removed. One of the three devices still hadsensitive information on a hard drive, including multiple social securitynumbers, medical records and confidential human resource information.
New York State Health Insurance Program-Department of Civil Service Empire BlueCross BlueShield Selected Payments forSpecial Items for the Period April 1 Through June 30, 2011 (2011-S-42)
Empire processesclaims for hospital services in accordance to agreements they negotiate withmember hospitals. Payments for hospital services are generally based onstandard fee schedules. However, hospitals may be entitled to additionalpayments for special items that are not covered by the standard fee schedules.
Many of Empire's agreements with member hospitals limit charges for specialitems, while agreements with other hospitals do not have such limitations.Auditors found Empire did not have adequate controls to ensure special itemswere paid according to contract limitations.
As a result, Empire made a netoverpayment of $119,141 on 33 claims. Empire made an excessive payment to ahospital that did not have formal contract provisions limiting reimbursements forspecial items. On one claim we reviewed, Empire paid about $52,755 (or 444percent) more than the costs of the three special items in question.
Selected reports andinformation published by New York State's Comptroller Thomas P. DiNapoli
New York State Comptroller Thomas P. DiNapoliannounced that the following audits have been issued:
SUNY at New Paltz Selected Employee TravelExpenses (2012-S-140)
Auditors examined thetravel expenses for one college employee whose travel charges totaled $269,627. Theyfound that the selected employee was responsible for arranging travel for othercollege staff members, charging these travel expenses to her travel card.Auditors reviewed a sample of charges to this employee’s travel card and foundthe expenses were documented and adhered to state travel rules and regulations.
Department of Economic Development Quality ofInternal Control Certification (2012-S-48)
In 1987, theLegislature passed the New York State Governmental Accountability, Audit andInternal Control Act requiring state agencies and public authorities to eachinstitute a comprehensive system of internal controls over their operations.Each covered State agency and public authority is required to certifycompliance with act by April 30 of each year. DED's Internal ControlCertification was submitted timely.
However, auditors identified several areaswhere the quality of the certification could be improved. In threeinstances, DED's certification did not provide the required level of detail toexplain the actual steps taken to implement certain provisions, includingdescribing its internal control testing and monitoring processes and theresults of its reviews of high risk activities. Although DED certifiedfull compliance with all provisions of the act, its internal audit function hasnot had an external quality control assessment completed as required byprofessional auditing standards.
Office of General Services Disposal ofElectronic Devices (2012-S-4)
The New York StateOffice of Cyber Security requires all state entities to establish formalprocesses to address the risk that information may be improperly disclosed.Information can be compromised through careless disposal of electronicequipment. OGS' surplus unit disposes of such equipment for many Stateagencies.
The Surplus Unit does not accept any responsibility for clearing thedata from these devices. However, OGS' Information Resource Management (IRM)bureau provides IT support for some state agencies. In these cases, IRM isresponsible for removing information from the devices prior to making themavailable to the surplus unit.
At the time of the audit, the surplus unit had429 electronic devices in its possession for disposal and IRM was responsiblefor removing information from 25 of the devices on hand. Of these, three didnot have information completely removed. One of the three devices still hadsensitive information on a hard drive, including multiple social securitynumbers, medical records and confidential human resource information.
New York State Health Insurance Program-Department of Civil Service Empire BlueCross BlueShield Selected Payments forSpecial Items for the Period April 1 Through June 30, 2011 (2011-S-42)
Empire processesclaims for hospital services in accordance to agreements they negotiate withmember hospitals. Payments for hospital services are generally based onstandard fee schedules. However, hospitals may be entitled to additionalpayments for special items that are not covered by the standard fee schedules.
Many of Empire's agreements with member hospitals limit charges for specialitems, while agreements with other hospitals do not have such limitations.Auditors found Empire did not have adequate controls to ensure special itemswere paid according to contract limitations.
As a result, Empire made a netoverpayment of $119,141 on 33 claims. Empire made an excessive payment to ahospital that did not have formal contract provisions limiting reimbursements forspecial items. On one claim we reviewed, Empire paid about $52,755 (or 444percent) more than the costs of the three special items in question.
Does the State’s Son of Sam Law allow recovery from any and all of a convicted person’s assets, including his or her NYSERS retirement allowance?
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Does the State’s Son of Sam Law allow recovery from any andall of a convicted person’s assets, including his or her NYSERS retirementallowance?
The Court of Appeals will consider the appeal of Steven C. Raucci and his spouse, ShelleyRaucci, a nonparty-appellant from an Appellate Division ruling that held that theSon of Sam Law, which does not expressly exempt pension funds from its reach,trumps §110 of the Retirement and Social Security Law. §110 exempts the pensionfunds from garnishment or any other legal process.
Steven C. Raucci was sentenced to a lengthy prison termupon his conviction of numerous crimes related to his employment with a school district. After receiving notice from two victimsof these crimes of their intent to commence civil actions against Raucci for money damages, the New York State Office of Victim Services commenced thisproceeding on their behalf pursuant to the Son of Sam Law (see ExecutiveLaw §632-a).
Victim Services contended that Raucci’s pension checks from theNew York State and Local Employees' Retirement System are delivered to hiswife, Shelley Raucci, who holds a power of attorney that enables her to cashsuch monthly pension checks, thereby giving her control over the funds andthreatening their disbursement in a manner that would render ineffectual anycivil judgments obtained by the crime victims.
The Appellate Division noting that in 1991 the Legislature,subject to certain limitations, "expand[ed] the [Son of Sam] [L]aw to cover money and property thata convicted criminal receives from any source," concluded that thestatute, as amended, permits crime victims to commence an action “within threeyears of the discovery of any profits from a crime or funds of aconvicted person."
In the words of the Appellate Division, “Apart from[certain] exceptions, however, the amendments to the Son of Sam Law wereintended to ensure that convicted criminals are ‘held accountable to theirvictims financially, regardless of their source of wealth’" Thus,said the court, it its view both the unambiguous statutory language of the Sonof Sam Law and the legislative history of the 2001 amendments support VictimServices’ argument that Raucci's pension funds are not exempt from thestatute's reach.
The New York LawSchool Law Review haspublished an article by JessicaYager, Esq. that addresses various aspects of the Sun of Sam Law titled InvestigatingNew York’s 2001 Son Of Sam Law: Problems with the Recent Extension of TortLiability for People Convicted Of Crimes, [Vol. 48, 2004, Pages 433-488] Ms. Yager’s Law Review article is posted on theInternet at: http://www.nyls.edu/user_files/1/3/4/17/49/Vol48no3p433-488.pdf
Does the State’s Son of Sam Law allow recovery from any andall of a convicted person’s assets, including his or her NYSERS retirementallowance?
The Court of Appeals will consider the appeal of Steven C. Raucci and his spouse, ShelleyRaucci, a nonparty-appellant from an Appellate Division ruling that held that theSon of Sam Law, which does not expressly exempt pension funds from its reach,trumps §110 of the Retirement and Social Security Law. §110 exempts the pensionfunds from garnishment or any other legal process.
Steven C. Raucci was sentenced to a lengthy prison termupon his conviction of numerous crimes related to his employment with a school district. After receiving notice from two victimsof these crimes of their intent to commence civil actions against Raucci for money damages, the New York State Office of Victim Services commenced thisproceeding on their behalf pursuant to the Son of Sam Law (see ExecutiveLaw §632-a).
Victim Services contended that Raucci’s pension checks from theNew York State and Local Employees' Retirement System are delivered to hiswife, Shelley Raucci, who holds a power of attorney that enables her to cashsuch monthly pension checks, thereby giving her control over the funds andthreatening their disbursement in a manner that would render ineffectual anycivil judgments obtained by the crime victims.
The Appellate Division noting that in 1991 the Legislature,subject to certain limitations, "expand[ed] the [Son of Sam] [L]aw to cover money and property thata convicted criminal receives from any source," concluded that thestatute, as amended, permits crime victims to commence an action “within threeyears of the discovery of any profits from a crime or funds of aconvicted person."
In the words of the Appellate Division, “Apart from[certain] exceptions, however, the amendments to the Son of Sam Law wereintended to ensure that convicted criminals are ‘held accountable to theirvictims financially, regardless of their source of wealth’" Thus,said the court, it its view both the unambiguous statutory language of the Sonof Sam Law and the legislative history of the 2001 amendments support VictimServices’ argument that Raucci's pension funds are not exempt from thestatute's reach.
The New York LawSchool Law Review haspublished an article by JessicaYager, Esq. that addresses various aspects of the Sun of Sam Law titled InvestigatingNew York’s 2001 Son Of Sam Law: Problems with the Recent Extension of TortLiability for People Convicted Of Crimes, [Vol. 48, 2004, Pages 433-488] Ms. Yager’s Law Review article is posted on theInternet at: http://www.nyls.edu/user_files/1/3/4/17/49/Vol48no3p433-488.pdf
The relationship of a statute to the provisions of a Taylor Law agreement
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The relationship of a statute to the provisions of a TaylorLaw agreementCivil Service Employees Association v. Town of Harrison, 48NY2d 66
Where the court determines that a statute sets out a strong public policy, that provision will trump a provision in a collective bargaining agreement inconsistent with the statute.
In the Town of Harrison case the Court of Appeals said that thereis only one way a new position in the classified service of a municipality maybe created: the way the controlling law requires.
In this instance the statutory imperatives of §22 of theCivil Service Law were viewed as reflecting such a strong public policy withrespect to establishing new positions that it may not be ignored nor may it becircumvented under color of an “alternative” to the provisions of §22 containedin a collective bargaining agreement negotiated pursuant to the Taylor Law(§200 et seq, Civil Service Law). Failing to comply with the mandates of CivilService Law §22 was fatal and no new position can come into being unless it iscreated as prescribed by Section.
Although the court did not address the “status” of theincumbent of the “new position” in its decision, it would appear that the“status” of the individual is not dependent on the “existence” of any positionand, presumably, other relevant provisions of the Civil Service Law (i.e., §80,Layoff) would control if the “nonexistent new position” could no longer serveas a “position” for payroll purposes.
Another example of a provision in the Civil Service Lawnullifying a provision in a collective bargaining agreement is City of Plattsburgh v Local 788, 108 AD2d 1045. In Plattsburgh the issueconcerned the application of a Taylor Law contract provision dealing withseniority in a demotion involving a layoff situation.
The collective bargaining agreement betweenthe City and Local 788 provided if there were to be demotions in connectionwith a layoff, the "date of hire" was to be used todetermine an employee's seniority. However, the "date ofhire" might not necessarily be the same date used to determine anindividual's service for seniority purposes for layoff under State law, i.e., theindividual's date of initial permanent appointment in public service.
In this instance the employee retained by the City hadbeen initially appointed after the individual that Plattsburgh had been demoted. However the retainedemployee had been permanently appointed to the position prior to the effectivedate of the permanent appointment of the individual Plattsburgh had demoted.
The Courtsaid that §80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away andgranted the City’s Article 75 petition to permanently stay the Local from submittingits grievance alleging a contract violation to arbitration.
The relationship of a statute to the provisions of a TaylorLaw agreementCivil Service Employees Association v. Town of Harrison, 48NY2d 66
Where the court determines that a statute sets out a strong public policy, that provision will trump a provision in a collective bargaining agreement inconsistent with the statute.
In the Town of Harrison case the Court of Appeals said that thereis only one way a new position in the classified service of a municipality maybe created: the way the controlling law requires.
In this instance the statutory imperatives of §22 of theCivil Service Law were viewed as reflecting such a strong public policy withrespect to establishing new positions that it may not be ignored nor may it becircumvented under color of an “alternative” to the provisions of §22 containedin a collective bargaining agreement negotiated pursuant to the Taylor Law(§200 et seq, Civil Service Law). Failing to comply with the mandates of CivilService Law §22 was fatal and no new position can come into being unless it iscreated as prescribed by Section.
Although the court did not address the “status” of theincumbent of the “new position” in its decision, it would appear that the“status” of the individual is not dependent on the “existence” of any positionand, presumably, other relevant provisions of the Civil Service Law (i.e., §80,Layoff) would control if the “nonexistent new position” could no longer serveas a “position” for payroll purposes.
Another example of a provision in the Civil Service Lawnullifying a provision in a collective bargaining agreement is City of Plattsburgh v Local 788, 108 AD2d 1045. In Plattsburgh the issueconcerned the application of a Taylor Law contract provision dealing withseniority in a demotion involving a layoff situation.
The collective bargaining agreement betweenthe City and Local 788 provided if there were to be demotions in connectionwith a layoff, the "date of hire" was to be used todetermine an employee's seniority. However, the "date ofhire" might not necessarily be the same date used to determine anindividual's service for seniority purposes for layoff under State law, i.e., theindividual's date of initial permanent appointment in public service.
In this instance the employee retained by the City hadbeen initially appointed after the individual that Plattsburgh had been demoted. However the retainedemployee had been permanently appointed to the position prior to the effectivedate of the permanent appointment of the individual Plattsburgh had demoted.
The Courtsaid that §80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away andgranted the City’s Article 75 petition to permanently stay the Local from submittingits grievance alleging a contract violation to arbitration.
27 Aralık 2012 Perşembe
Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli
To contact us Click HERE
Selected reports andinformation published by New York State's Comptroller Thomas P. DiNapoli
DiNapoli Proposes Legislation To Help LocalGovernments With Storm Costs
State Comptroller Thomas P. DiNapoli has proposed a legislative package to helplocal governments deal with the financial impact of Hurricane Sandy. TheComptroller submitted four bills last week to the New York State Assembly andSenate.
DiNapoli: SED Providing Inadequate Oversightof Special Education Contractors
New York State Comptroller Thomas P. DiNapoli Tuesday called on the StateEducation Department (SED) to increase scrutiny of special educationcontractors after an audit revealed SED has notconducted any on–site audits since 2007 and has no process to routinely reviewthe hundreds of millions of dollars charged by these private providersannually.
DiNapoli Leads Coalition Demanding AetnaDisclose Political Spending
Citing reputational risks and a need for greater transparency in how shareholderdollars are being spent, New York State Comptroller Thomas P. DiNapoliannounced that he has filed a shareholder resolution with Aetna Incorporated toadopt a policy to publicly disclose all of its direct and indirect politicalexpenditures. The Comptroller’s resolution was co–filed by global asset managerF&C Management Ltd. In a related effort, a group of institutional investorsled by the Unitarian Universalist Association filed a separate resolutionurging the company to seek greater board involvement and oversight overpolitical spending.
DiNapoli: $89 Billion Shortfall for EssentialInfrastructure Projects Over the Next Two Decades
New York faces a shortfall of up to $89 billion in funding for water, sewer andtransportation infrastructure over the next two decades, according to a reportissued Thursday by State Comptroller Thomas P. DiNapoli. The report is thelatest in a series of reports DiNapoli will issue to highlight the causes offiscal stress in New York’s local governments.
DiNapoli: School Districts Should Take FurtherSteps to Protect Private Data
The increased use of mobile computing devices by school districts has putconfidential student and school staff data at greater risk for theft andmisuse, according to an audit released last Friday by StateComptroller Thomas P. DiNapoli.
DiNapoli: Tax Collections $163 Million BelowProjections
Tax collections through November of $39.2 billion were $163.4 million below thestate’s estimates updated last month, and $702.4 million below initialestimates in April, State Comptroller Thomas P. DiNapoli said Wednesday inreleasing the November cash report.
Comptroller DiNapoli Releases School Audits
New York State Comptroller Thomas P. DiNapoli Wednesday announced his officecompleted audits of:
the Mechanicville City School District;andthe Riverhead Charter School.
Comptroller DiNapoli Releases Municipal Audits
New York State Comptroller Thomas P. DiNapoli Wednesday announced his officecompleted the audits of:
the Village of Fort Edward; the Town of Livingston; the Town of Montgomery; the Niagara County Soil and Water ConservationDistrict; the Town of Oakfield; the Town of Olean; the Town of Stillwater; the Town of Unadilla; the Town of Waterloo; and the West Webster Volunteer Fireman’s Association,Inc.
Selected reports andinformation published by New York State's Comptroller Thomas P. DiNapoli
DiNapoli Proposes Legislation To Help LocalGovernments With Storm Costs
State Comptroller Thomas P. DiNapoli has proposed a legislative package to helplocal governments deal with the financial impact of Hurricane Sandy. TheComptroller submitted four bills last week to the New York State Assembly andSenate.
DiNapoli: SED Providing Inadequate Oversightof Special Education Contractors
New York State Comptroller Thomas P. DiNapoli Tuesday called on the StateEducation Department (SED) to increase scrutiny of special educationcontractors after an audit revealed SED has notconducted any on–site audits since 2007 and has no process to routinely reviewthe hundreds of millions of dollars charged by these private providersannually.
DiNapoli Leads Coalition Demanding AetnaDisclose Political Spending
Citing reputational risks and a need for greater transparency in how shareholderdollars are being spent, New York State Comptroller Thomas P. DiNapoliannounced that he has filed a shareholder resolution with Aetna Incorporated toadopt a policy to publicly disclose all of its direct and indirect politicalexpenditures. The Comptroller’s resolution was co–filed by global asset managerF&C Management Ltd. In a related effort, a group of institutional investorsled by the Unitarian Universalist Association filed a separate resolutionurging the company to seek greater board involvement and oversight overpolitical spending.
DiNapoli: $89 Billion Shortfall for EssentialInfrastructure Projects Over the Next Two Decades
New York faces a shortfall of up to $89 billion in funding for water, sewer andtransportation infrastructure over the next two decades, according to a reportissued Thursday by State Comptroller Thomas P. DiNapoli. The report is thelatest in a series of reports DiNapoli will issue to highlight the causes offiscal stress in New York’s local governments.
DiNapoli: School Districts Should Take FurtherSteps to Protect Private Data
The increased use of mobile computing devices by school districts has putconfidential student and school staff data at greater risk for theft andmisuse, according to an audit released last Friday by StateComptroller Thomas P. DiNapoli.
DiNapoli: Tax Collections $163 Million BelowProjections
Tax collections through November of $39.2 billion were $163.4 million below thestate’s estimates updated last month, and $702.4 million below initialestimates in April, State Comptroller Thomas P. DiNapoli said Wednesday inreleasing the November cash report.
Comptroller DiNapoli Releases School Audits
New York State Comptroller Thomas P. DiNapoli Wednesday announced his officecompleted audits of:
the Mechanicville City School District;andthe Riverhead Charter School.
Comptroller DiNapoli Releases Municipal Audits
New York State Comptroller Thomas P. DiNapoli Wednesday announced his officecompleted the audits of:
the Village of Fort Edward; the Town of Livingston; the Town of Montgomery; the Niagara County Soil and Water ConservationDistrict; the Town of Oakfield; the Town of Olean; the Town of Stillwater; the Town of Unadilla; the Town of Waterloo; and the West Webster Volunteer Fireman’s Association,Inc.
Arbitration award imposing a $10,000 fine as the penalty for inflicting corporeal punishment on a student sustained
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Arbitration award imposing a $10,000 fine as the penalty forinflicting corporeal punishment on a student sustainedStoyer-Rivera v New York City Board/Department of Educ. 2012NY Slip Op 08816, Appellate Division, First Department
Supreme Court denied the plaintiff’s petition to vacate anarbitration award issued after a hearing pursuant to Education Law §3020-a. Thearbitrator had found the plaintiff guilty of inflicting corporal punishment ona student and imposed a $10,000 fine.
The Appellate Division sustained the lower court’s ruling,holding that the lower court had properly found that the hearing officer'sdetermination was supported by adequate evidence, was rational and neitherarbitrary nor capricious.
The Appellate Division noted that the disciplinaryspecifications that were sustained by the arbitrator were supported by theinjured student's testimony, along with the written statements from otherstudent witnesses that corroborated the injured student's version of events,and the testimonial and physical evidence regarding the injured state of thestudent's ear.
Citing the Pell standard, of Pell v Board of Educ. ofUnion Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck,Westchester County, 34 NY2d 222, the Appellate Division said that thearbitration award, which imposed a penalty of a $10,000 fine upon petitionerwas not "so disproportionate to the offense, in the light of all thecircumstances, as to be shocking to one's sense of fairness."
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08816.htm
Arbitration award imposing a $10,000 fine as the penalty forinflicting corporeal punishment on a student sustainedStoyer-Rivera v New York City Board/Department of Educ. 2012NY Slip Op 08816, Appellate Division, First Department
Supreme Court denied the plaintiff’s petition to vacate anarbitration award issued after a hearing pursuant to Education Law §3020-a. Thearbitrator had found the plaintiff guilty of inflicting corporal punishment ona student and imposed a $10,000 fine.
The Appellate Division sustained the lower court’s ruling,holding that the lower court had properly found that the hearing officer'sdetermination was supported by adequate evidence, was rational and neitherarbitrary nor capricious.
The Appellate Division noted that the disciplinaryspecifications that were sustained by the arbitrator were supported by theinjured student's testimony, along with the written statements from otherstudent witnesses that corroborated the injured student's version of events,and the testimonial and physical evidence regarding the injured state of thestudent's ear.
Citing the Pell standard, of Pell v Board of Educ. ofUnion Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck,Westchester County, 34 NY2d 222, the Appellate Division said that thearbitration award, which imposed a penalty of a $10,000 fine upon petitionerwas not "so disproportionate to the offense, in the light of all thecircumstances, as to be shocking to one's sense of fairness."
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08816.htm
Interpreting any statute, first and foremost, requires paying heed to the intent of the Legislature as reflected in the plain language of the statute
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Interpreting any statute, first and foremost, requires paying heed to the intent of the Legislature as reflected in the plain language of the statuteSamuelsen, as president ofLocal 100, Transport Workers Union of Greater New York v New York City Tr. Auth. et al, 2012 NY Slip Op 08780, AppellateDivision, First Department
Local 100, Transport Workers Union ofGreater New York [Union] is the exclusive collective bargaining representativeof approximately 32,000 workers employed by various subordinate bodies andaffiliates of the New York City Metropolitan Transportation Authority. One ofits component units is the New York City Transit Authority (TA).
The Manhattan and Bronx SurfaceTransit Authority (MaBSTOA) was created by the Legislature in 1962 after theCity of New York seized several privately owned and operated bus lines throughits eminent domain power.*
Public Authorities Law §1203-a, inpertinent part, provides: "[MaBSTOA] officers and employees shall notbecome, for any purpose, employees of the city or of the [TA] and shall notacquire civil service status or become members of the New York City Employees'Retirement System" (NYCERS). Although this arrangement was originally intended to operate "for a temporary period"(Public Authorities Law 1203-a[2]), it has continued until the present. Although the two authorities have remainedseparate legal entities, they nevertheless developed, as a practical matter,functional overlap such as sharing common office facilities and a personneldepartment.
Certain differences, however, weremaintained with respect to personnel matters. For example, the terms ofemployment for both TA and MaBSTOA employees were governed by a collective bargainingagreement [CBA], with certain exceptions such as the CBA providing that any layoffs of MaBSTOA employees would occur in reverse orderof seniority, based upon date of hire. However there was no similar provision in thatagreement concerning TA workers as the layoff of TA workers was controlled bythe §§80 and 81 of the Civil Service Law. Another difference: set out in the CBA addressed “job selection.” MaBSTOA employees could pick only jobs associated with the buslines operated by MaBSTOA while TA employees could pick only jobs associated withbus lines and subways operated by TA.
In December 2002, the TA and MaBSTOAexecuted a "Memorandum of Understanding" with the Union (MOU) thatmodified the CBA to provide for the consolidation of MaBSTOA and TA surfacetransit operations whereby "The Authority and the Union agree to theelimination of the artificial distinction between MaBSTOA and the TransitAuthority….” To effectuate the MOU, theparties established a joint job pick procedure that allowed MaBSTOA and TAemployees, subject to certain limitations, to "pick into" TA jobs andTA employees to "pick into" MaBSTOA jobs in accordance with a single,integrated seniority list, known as the "Consolidated SeniorityList."
Asserting that this directly violatesthe prohibition in Public Authorities Law §1203-a(3)(b) against MaBSTOAemployees becoming, "for any purpose, employees of the city or of the[TA], the Union alleged that "as a result of" the MOU and theconsolidation agreement, "employees of MaBSTOA are, for almost allpurposes, employees of [the TA]. The Union further alleged that “MaBSTOAemployees regularly work in [TA] facilities” and other than not having civilservice status or participating in a different pension system, “MaBSTOAemployees working for [TA] are for all purposes indistinguishable from [TA]employees."
The Union sought a judgment declaringthat:
1. “No MaBSTOA employee may be treatedas an employee of the TA for any purpose, and that the MOU and consolidationagreement are void and unenforceable to the extent that they have effectively madeemployees of MaBSTOA into employees of the TA.” and
2. Prohibiting the MaBSTOA fromtaking any action in accordance with the 2002 MOU and 2003 consolidationagreement that is prohibited under the Public Authorities Law, or thatadversely affects the employment of any employee of MaBSTOA.
Supreme Court dismissed the Union’scomplaint “for failure to state a cause of action.” The Appellate Division reversed thelower court’s ruling “on the law.”
As to Supreme Court’s finding that theUnion’s compliant “failed to state a cause of action because nothing in the MOUor consolidation agreement indicated that MaBSTOA employees would gain civilservice status or become members of NYCERS,” the Appellate Division explainedthat “[i]n interpreting any statute, we are required, first and foremost, to payheed to the intent of the Legislature, as reflected by the plain language ofthe text,” citing Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577.
In addition, said the court,"[i]n construing statutes, it is a well-established rule that resort mustbe had to the natural signification of the words employed, and if they have adefinite meaning, which involves no absurdity or contradiction, there is noroom for construction and courts have no right to add to or take away from thatmeaning."
Noting that a plaintiff’s pleading isto be afforded a liberal construction, the Appellate Division held that “thefacts alleged in the complaint are to be accepted as true, and plaintiff is tobe accorded the benefit of every possible favorable inference,” citing Leon vMartinez, 84 NY2d 83.
In the words of the court “… thelanguage we are required to interpret is as follows: ‘[MaBSTOA] officers andemployees shall not become, for any purpose, employees of the city or of the[TA] and shall not acquire civil service status or become members of [NYCERS]’(Public Authorities Law 1203-a[3][b]). In our view, this plainly means thatthree separate prohibitions apply to MaBSTOA employees: (1) that they ‘shallnot become, for any purpose,’ employees of the TA; and (2) that they shall notacquire civil service status; and (3) that they shall not become members of theNYCERS. Accordingly, we agree with the Union that, to the extent that the MOUand consolidation agreement, by merging many of the policies of the twoauthorities, such as probationary employment rules, disciplinary rules, andsick-leave rules, transform MaBSTOA employees into employees of the TA, theagreements violate the first prohibition.”
The Appellate Division rejected the City Transit Authority’s argument that "[t]he plain and obvious meaning of the 'for anypurpose' language is to ensure that a MaBSTOA employee cannot, simply by virtueof employment by MaBSTOA, even in a contractually agreed upon commingled workforce, acquire civil service status or membership in NYCERS."
The most glaring problem with thisinterpretation, said the court, is that “it is decidedly not what the statutesays.” Rather, said the Appellate Division, “[t]he way the provision is written,the ‘and’ creates a separation between the ‘for any purpose’ clause and therest of the sentence. It does not signal a modification to the ‘for anypurpose’ clause or in any way refer back to it. Furthermore, defendants'interpretation renders the first prohibition superfluous, a result which ‘is tobe avoided,’ [citing] Matter of Branford House v Michetti, 81 NY2d 681.”
In other words, said the court,“defendants argue that if a MaBSTOA employee cannot, under any circumstances,be subject to the Civil Service Law or participate in NYCERS, they simplycannot be considered TA ‘employees,’ rendering the first clause meaningless ifnot considered in the manner they urge. This approach is too narrow, for itpays no heed to the notion that different people working under the sameemployer can be classified differently.”
"In other words, not every employee in an organization is similarlysituated. Here, the statute recognizes that MaBSTOA workers could become sointegrated into the TA organization that they could be seen as TA employees,albeit without the protections of the Civil Service Law and the benefit ofNYCERS participation. We simply discern nothing in the statutory language whichconfirms, as the dissent insists, that Civil Service Law protection is the distinguishing'or hallmark' quality of TA employment."
The majority, in response to a commentin the dissent, also observed that its approach was not in conflict with otherprovisions in the Public Authorities Law that might be interpreted asencouraging some standardization of the two agencies' operations.
Agreeing with the Union’sinterpretation of Public Authorities Law §1203-a(3)(b), the Appellate Divisionheld that complaint sufficiently alleged facts establishing that the MOU andconsolidation agreement had the effect of conferring on MaBSTOA workersqualities of "employment" by the TA, it ruled that Supreme Court“erred in dismissing the complaint as not having stated a cause of action.”
* MaBSTOA became a subsidiary corporation of the TA.
The decision is posted on the Internetat:
Interpreting any statute, first and foremost, requires paying heed to the intent of the Legislature as reflected in the plain language of the statuteSamuelsen, as president ofLocal 100, Transport Workers Union of Greater New York v New York City Tr. Auth. et al, 2012 NY Slip Op 08780, AppellateDivision, First Department
Local 100, Transport Workers Union ofGreater New York [Union] is the exclusive collective bargaining representativeof approximately 32,000 workers employed by various subordinate bodies andaffiliates of the New York City Metropolitan Transportation Authority. One ofits component units is the New York City Transit Authority (TA).
The Manhattan and Bronx SurfaceTransit Authority (MaBSTOA) was created by the Legislature in 1962 after theCity of New York seized several privately owned and operated bus lines throughits eminent domain power.*
Public Authorities Law §1203-a, inpertinent part, provides: "[MaBSTOA] officers and employees shall notbecome, for any purpose, employees of the city or of the [TA] and shall notacquire civil service status or become members of the New York City Employees'Retirement System" (NYCERS). Although this arrangement was originally intended to operate "for a temporary period"(Public Authorities Law 1203-a[2]), it has continued until the present. Although the two authorities have remainedseparate legal entities, they nevertheless developed, as a practical matter,functional overlap such as sharing common office facilities and a personneldepartment.
Certain differences, however, weremaintained with respect to personnel matters. For example, the terms ofemployment for both TA and MaBSTOA employees were governed by a collective bargainingagreement [CBA], with certain exceptions such as the CBA providing that any layoffs of MaBSTOA employees would occur in reverse orderof seniority, based upon date of hire. However there was no similar provision in thatagreement concerning TA workers as the layoff of TA workers was controlled bythe §§80 and 81 of the Civil Service Law. Another difference: set out in the CBA addressed “job selection.” MaBSTOA employees could pick only jobs associated with the buslines operated by MaBSTOA while TA employees could pick only jobs associated withbus lines and subways operated by TA.
In December 2002, the TA and MaBSTOAexecuted a "Memorandum of Understanding" with the Union (MOU) thatmodified the CBA to provide for the consolidation of MaBSTOA and TA surfacetransit operations whereby "The Authority and the Union agree to theelimination of the artificial distinction between MaBSTOA and the TransitAuthority….” To effectuate the MOU, theparties established a joint job pick procedure that allowed MaBSTOA and TAemployees, subject to certain limitations, to "pick into" TA jobs andTA employees to "pick into" MaBSTOA jobs in accordance with a single,integrated seniority list, known as the "Consolidated SeniorityList."
Asserting that this directly violatesthe prohibition in Public Authorities Law §1203-a(3)(b) against MaBSTOAemployees becoming, "for any purpose, employees of the city or of the[TA], the Union alleged that "as a result of" the MOU and theconsolidation agreement, "employees of MaBSTOA are, for almost allpurposes, employees of [the TA]. The Union further alleged that “MaBSTOAemployees regularly work in [TA] facilities” and other than not having civilservice status or participating in a different pension system, “MaBSTOAemployees working for [TA] are for all purposes indistinguishable from [TA]employees."
The Union sought a judgment declaringthat:
1. “No MaBSTOA employee may be treatedas an employee of the TA for any purpose, and that the MOU and consolidationagreement are void and unenforceable to the extent that they have effectively madeemployees of MaBSTOA into employees of the TA.” and
2. Prohibiting the MaBSTOA fromtaking any action in accordance with the 2002 MOU and 2003 consolidationagreement that is prohibited under the Public Authorities Law, or thatadversely affects the employment of any employee of MaBSTOA.
Supreme Court dismissed the Union’scomplaint “for failure to state a cause of action.” The Appellate Division reversed thelower court’s ruling “on the law.”
As to Supreme Court’s finding that theUnion’s compliant “failed to state a cause of action because nothing in the MOUor consolidation agreement indicated that MaBSTOA employees would gain civilservice status or become members of NYCERS,” the Appellate Division explainedthat “[i]n interpreting any statute, we are required, first and foremost, to payheed to the intent of the Legislature, as reflected by the plain language ofthe text,” citing Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577.
In addition, said the court,"[i]n construing statutes, it is a well-established rule that resort mustbe had to the natural signification of the words employed, and if they have adefinite meaning, which involves no absurdity or contradiction, there is noroom for construction and courts have no right to add to or take away from thatmeaning."
Noting that a plaintiff’s pleading isto be afforded a liberal construction, the Appellate Division held that “thefacts alleged in the complaint are to be accepted as true, and plaintiff is tobe accorded the benefit of every possible favorable inference,” citing Leon vMartinez, 84 NY2d 83.
In the words of the court “… thelanguage we are required to interpret is as follows: ‘[MaBSTOA] officers andemployees shall not become, for any purpose, employees of the city or of the[TA] and shall not acquire civil service status or become members of [NYCERS]’(Public Authorities Law 1203-a[3][b]). In our view, this plainly means thatthree separate prohibitions apply to MaBSTOA employees: (1) that they ‘shallnot become, for any purpose,’ employees of the TA; and (2) that they shall notacquire civil service status; and (3) that they shall not become members of theNYCERS. Accordingly, we agree with the Union that, to the extent that the MOUand consolidation agreement, by merging many of the policies of the twoauthorities, such as probationary employment rules, disciplinary rules, andsick-leave rules, transform MaBSTOA employees into employees of the TA, theagreements violate the first prohibition.”
The Appellate Division rejected the City Transit Authority’s argument that "[t]he plain and obvious meaning of the 'for anypurpose' language is to ensure that a MaBSTOA employee cannot, simply by virtueof employment by MaBSTOA, even in a contractually agreed upon commingled workforce, acquire civil service status or membership in NYCERS."
The most glaring problem with thisinterpretation, said the court, is that “it is decidedly not what the statutesays.” Rather, said the Appellate Division, “[t]he way the provision is written,the ‘and’ creates a separation between the ‘for any purpose’ clause and therest of the sentence. It does not signal a modification to the ‘for anypurpose’ clause or in any way refer back to it. Furthermore, defendants'interpretation renders the first prohibition superfluous, a result which ‘is tobe avoided,’ [citing] Matter of Branford House v Michetti, 81 NY2d 681.”
In other words, said the court,“defendants argue that if a MaBSTOA employee cannot, under any circumstances,be subject to the Civil Service Law or participate in NYCERS, they simplycannot be considered TA ‘employees,’ rendering the first clause meaningless ifnot considered in the manner they urge. This approach is too narrow, for itpays no heed to the notion that different people working under the sameemployer can be classified differently.”
"In other words, not every employee in an organization is similarlysituated. Here, the statute recognizes that MaBSTOA workers could become sointegrated into the TA organization that they could be seen as TA employees,albeit without the protections of the Civil Service Law and the benefit ofNYCERS participation. We simply discern nothing in the statutory language whichconfirms, as the dissent insists, that Civil Service Law protection is the distinguishing'or hallmark' quality of TA employment."
The majority, in response to a commentin the dissent, also observed that its approach was not in conflict with otherprovisions in the Public Authorities Law that might be interpreted asencouraging some standardization of the two agencies' operations.
Agreeing with the Union’sinterpretation of Public Authorities Law §1203-a(3)(b), the Appellate Divisionheld that complaint sufficiently alleged facts establishing that the MOU andconsolidation agreement had the effect of conferring on MaBSTOA workersqualities of "employment" by the TA, it ruled that Supreme Court“erred in dismissing the complaint as not having stated a cause of action.”
* MaBSTOA became a subsidiary corporation of the TA.
The decision is posted on the Internetat:
Hearsay is admissible in administrative proceedings and, if sufficiently relevant and probative, may constitute substantial evidence
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Hearsay is admissible in administrative proceedings and, if sufficiently relevant and probative, may constitute substantialevidence
Szczepaniak v City of Rochester, 2012 NY Slip Op 08896, AppellateDivision, Fourth Department
The City of Rochester determined that one of its employees wasguilty of the disciplinary charges filed against him and terminating him fromhis employment. Supreme court dismissed the individual's Article 78 petition challenging hisdismissal and the Appellate Division affirmed the lower court’s ruling.
One of the arguments advanced by the individual in his petition was that “thedetermination is not supported by substantial evidence because the evidencepresented was hearsay.“*
The Appellate Division, noting that the hearsay evidence admitted at the administrative hearing consisted of attendance records about individual’s outside employment,ruled that the evidence was relevant and probative on the charges that the individual had worked atthat outside employment while he was on sick leave, or other leave from hisemployment with the City, and receiving certain benefits.
The court explained that hearsay is admissiblein administrative proceedings "and if sufficiently relevant and probativemay constitute substantial evidence." Accordingly, said the Appellate Division, thereis no merit to the individual's contention that the determination is notsupported by substantial evidence because the evidence presented was hearsay.
Citing Pell v Board of Educ. of Union Free School Dist. No.1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, theAppellate Division said that it found that the appointing authoritiesdetermination as to the employees guilt was “supported by substantial evidence,i.e., "such relevant proof as a reasonable mind may accept as adequate tosupport a conclusion or ultimate fact."
As to the penalty imposed, dismissal, the court said that itconcluded that “the penalty of termination from petitioner's employment is not ‘sodisproportionate to the offense[s] as to be shocking to one's sense of fairness,’and thus does not constitute an abuse of discretion as a matter of law,” citingKelly v Safir, 96 NY2d 32.
* Essentially hearsay evidence is testimony given by an individual who testifiesabout what he or she has heard from others rather than testifies about that whichhe or she personally heard, knows or observed concerning a conversation, an event or a situation.
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08896.htm
Hearsay is admissible in administrative proceedings and, if sufficiently relevant and probative, may constitute substantialevidence
Szczepaniak v City of Rochester, 2012 NY Slip Op 08896, AppellateDivision, Fourth Department
The City of Rochester determined that one of its employees wasguilty of the disciplinary charges filed against him and terminating him fromhis employment. Supreme court dismissed the individual's Article 78 petition challenging hisdismissal and the Appellate Division affirmed the lower court’s ruling.
One of the arguments advanced by the individual in his petition was that “thedetermination is not supported by substantial evidence because the evidencepresented was hearsay.“*
The Appellate Division, noting that the hearsay evidence admitted at the administrative hearing consisted of attendance records about individual’s outside employment,ruled that the evidence was relevant and probative on the charges that the individual had worked atthat outside employment while he was on sick leave, or other leave from hisemployment with the City, and receiving certain benefits.
The court explained that hearsay is admissiblein administrative proceedings "and if sufficiently relevant and probativemay constitute substantial evidence." Accordingly, said the Appellate Division, thereis no merit to the individual's contention that the determination is notsupported by substantial evidence because the evidence presented was hearsay.
Citing Pell v Board of Educ. of Union Free School Dist. No.1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, theAppellate Division said that it found that the appointing authoritiesdetermination as to the employees guilt was “supported by substantial evidence,i.e., "such relevant proof as a reasonable mind may accept as adequate tosupport a conclusion or ultimate fact."
As to the penalty imposed, dismissal, the court said that itconcluded that “the penalty of termination from petitioner's employment is not ‘sodisproportionate to the offense[s] as to be shocking to one's sense of fairness,’and thus does not constitute an abuse of discretion as a matter of law,” citingKelly v Safir, 96 NY2d 32.
* Essentially hearsay evidence is testimony given by an individual who testifiesabout what he or she has heard from others rather than testifies about that whichhe or she personally heard, knows or observed concerning a conversation, an event or a situation.
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08896.htm
Court of Appeals to consider arbitration award reinstating school bus driver terminated from the position after testing positive for marihuana in a random drug test
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Court of Appeals to consider arbitration award reinstatingschool bus driver terminated from the position after testing positive for marihuana in a random drug testShenendehowa Cent. School Dist. Bd. of Educ. (Civil Serv.Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO, Local 864), 90 AD3d1114
The Court of Appeals will hear Shenendehowa Central SchoolDistrict’s appeal from the Appellate Division's ruling sustaining an arbitrator’s award that reinstated a school bus driver terminated after testingpositive for marihuana in a random drug test.
Motions by New York State School Boards Association, Inc. and by New York State United Teachers for leave to file briefs amicuscuriae on the appeal were also granted by the court.
NYPPL summary the Appellate Division’s ruling in this actionis posted on the Internet at:http://publicpersonnellaw.blogspot.com/search?q=Shenendehowa
Court of Appeals to consider arbitration award reinstatingschool bus driver terminated from the position after testing positive for marihuana in a random drug testShenendehowa Cent. School Dist. Bd. of Educ. (Civil Serv.Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO, Local 864), 90 AD3d1114
The Court of Appeals will hear Shenendehowa Central SchoolDistrict’s appeal from the Appellate Division's ruling sustaining an arbitrator’s award that reinstated a school bus driver terminated after testingpositive for marihuana in a random drug test.
Motions by New York State School Boards Association, Inc. and by New York State United Teachers for leave to file briefs amicuscuriae on the appeal were also granted by the court.
NYPPL summary the Appellate Division’s ruling in this actionis posted on the Internet at:http://publicpersonnellaw.blogspot.com/search?q=Shenendehowa
20 Aralık 2012 Perşembe
Workers’ Compensation Board’s finding that the injured volunteer firefighter’s condition had not changed mandates the continuation of the benefits being provided pursuant to the Volunteer Firefighters’ Benefit Law
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Workers’ Compensation Board’s finding that the injuredvolunteer firefighter’s condition had not changed mandates the continuation ofthe benefits being provided pursuant to the Volunteer Firefighters’ Benefit Law
Giudi v New Paltz Fire Dept., 2012 NY Slip Op 08621, Appellate Division,Third Department
The genesis of this appeal was volunteer firefighter Jason Giudi's claim that he had suffered a head injury in the line of duty that adversely affected his ability to continue to work in his job in his regular capacity which resulted in a reduction in his income.
The Workers' Compensation Board ultimately found that theGiudi was permanently disabled and had been deprived of more than 75% of hisearning capacity. Accordingly, the Board awarded Guidi benefits pursuantto Volunteer Firefighters' Benefit Law §10(1).*
Several years later the case was reopened by the Workers’Compensation Board to address the New Paltz Fire Department's contention that Giudi 's condition had changed within the meaning of VolunteerFirefighters' Benefit Law §13** and thus Giudi’s entitlement to benefits should be reconsidered.
The Board sustained its earlier determination that Giudi was, and continued to be, permanently disabled.The Fire Department then challenged the Board’s decision but the AppellateDivision dismissed its appeal.
Noting that substantial evidence supports the Board'sfinding that Giudi "remains unable to continue performing either theemployment duties usually and ordinarily performed at the time of injury orthose required by a reasonable substitute,” the Appellate Division affirmed theBoard’s decision.
According to the ruling, Giudi testified that hiswork as a chef required substantial amounts of education and training and hehas been forced to perform less mentally demanding work since his injury.
Noting that a clinical neuropsychologist who examined Giudi had opined that Giudi's “cognitive impairments continued toprevent him from working as a chef or military police officer,” the court saidthat the Board was free to credit this evidence -- “which provided ample justification for its finding that [Giudi] continues to suffer from a disability that deprives him of more than75% of his earning capacity.”
* §10 of the VolunteerFirefighters Benefit Law provides for the payment of benefits in the event avolunteer firefighter suffers a permanent partial disability benefits as aresult of his or her suffering an injury in the line of duty.
** §13 of the VolunteerFirefighters Benefit Law provides for the reclassification of a disability uponproof that there has been a change in the claimant’s condition
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08621.htm
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General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections207-a/207-c and providing benefits thereunder and other disability retirementissues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ foradditional information about this electronic reference manual.
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Workers’ Compensation Board’s finding that the injuredvolunteer firefighter’s condition had not changed mandates the continuation ofthe benefits being provided pursuant to the Volunteer Firefighters’ Benefit Law
Giudi v New Paltz Fire Dept., 2012 NY Slip Op 08621, Appellate Division,Third Department
The genesis of this appeal was volunteer firefighter Jason Giudi's claim that he had suffered a head injury in the line of duty that adversely affected his ability to continue to work in his job in his regular capacity which resulted in a reduction in his income.
The Workers' Compensation Board ultimately found that theGiudi was permanently disabled and had been deprived of more than 75% of hisearning capacity. Accordingly, the Board awarded Guidi benefits pursuantto Volunteer Firefighters' Benefit Law §10(1).*
Several years later the case was reopened by the Workers’Compensation Board to address the New Paltz Fire Department's contention that Giudi 's condition had changed within the meaning of VolunteerFirefighters' Benefit Law §13** and thus Giudi’s entitlement to benefits should be reconsidered.
The Board sustained its earlier determination that Giudi was, and continued to be, permanently disabled.The Fire Department then challenged the Board’s decision but the AppellateDivision dismissed its appeal.
Noting that substantial evidence supports the Board'sfinding that Giudi "remains unable to continue performing either theemployment duties usually and ordinarily performed at the time of injury orthose required by a reasonable substitute,” the Appellate Division affirmed theBoard’s decision.
According to the ruling, Giudi testified that hiswork as a chef required substantial amounts of education and training and hehas been forced to perform less mentally demanding work since his injury.
Noting that a clinical neuropsychologist who examined Giudi had opined that Giudi's “cognitive impairments continued toprevent him from working as a chef or military police officer,” the court saidthat the Board was free to credit this evidence -- “which provided ample justification for its finding that [Giudi] continues to suffer from a disability that deprives him of more than75% of his earning capacity.”
* §10 of the VolunteerFirefighters Benefit Law provides for the payment of benefits in the event avolunteer firefighter suffers a permanent partial disability benefits as aresult of his or her suffering an injury in the line of duty.
** §13 of the VolunteerFirefighters Benefit Law provides for the reclassification of a disability uponproof that there has been a change in the claimant’s condition
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08621.htm
====================================
General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections207-a/207-c and providing benefits thereunder and other disability retirementissues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ foradditional information about this electronic reference manual.
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Backward-looking right of access claims
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"Backward-looking" right of access claimsSousa v Marquez, US Court of Appeals, Second Circuit, DocketNo. 12-403-cv
The Supreme Court has categorized right-of-access claims aseither forward-looking or backward-looking.
In the forward-looking category "are claims thatsystemic official action frustrates a plaintiff or plaintiff class in preparingand filing suits at the present time" (see Christopher v. Harbury, 536 US403). In “forward-looking” claims, official action is presently denyingan opportunity to litigate.
“Backward-looking” right of access claims involve claims notin aid of a class of suits yet to be litigated but of specific cases thatcannot now be tried (or tried with all material evidence) no matter whatofficial action may be in the future. To prevail in a backward-looking claims action, the plaintiff must show that the defendants caused the plaintiff to lose a meritorious claim or a chance to sue on a meritorious claim.
Bryan Sousa, a former employee at the Connecticut Departmentof Environmental Protection, sued Devin Marquez, a staff attorney at theConnecticut Department of Administrative Services, in an action characterizedby the Second Circuit as a “backward- looking” right of access claim. Sousacontended that he did not win his earlier employment-related suit because offalse statements and deliberate omissions in an investigative report issued byMarquez.
The Second Circuit rejected Sousa’s appeal from an adverse district court ruling, explainingthat:
[1] “Even assuming that so-called ‘backward looking’right-of-access claims are viable in this Circuit, such claims cannot proceedif the plaintiff, asserting that the government concealed or manipulatedrelevant facts, was aware of the key facts at issue at the time of the earlierlawsuit. In other words, “A plaintiff with knowledge of the crucial facts andan opportunity to rebut opposing evidence does have adequate access to ajudicial remedy” available to him or to her in the course of that litigation.
[2] The District Court’s opinion in the prior suitdemonstrates that the Court did not rely on statements or omissions inMarquez’s report and, therefore, Sousa has not shown that Marquez’s purportedactions caused or resulted in a violation of his rights.
The decision is posted on the Internet at:http://www.ca2.uscourts.gov/decisions/isysquery/d78e4359-b8c7-4710-b019-28febe041619/1/doc/12-403_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d78e4359-b8c7-4710-b019-28febe041619/1/hilite/
"Backward-looking" right of access claimsSousa v Marquez, US Court of Appeals, Second Circuit, DocketNo. 12-403-cv
The Supreme Court has categorized right-of-access claims aseither forward-looking or backward-looking.
In the forward-looking category "are claims thatsystemic official action frustrates a plaintiff or plaintiff class in preparingand filing suits at the present time" (see Christopher v. Harbury, 536 US403). In “forward-looking” claims, official action is presently denyingan opportunity to litigate.
“Backward-looking” right of access claims involve claims notin aid of a class of suits yet to be litigated but of specific cases thatcannot now be tried (or tried with all material evidence) no matter whatofficial action may be in the future. To prevail in a backward-looking claims action, the plaintiff must show that the defendants caused the plaintiff to lose a meritorious claim or a chance to sue on a meritorious claim.
Bryan Sousa, a former employee at the Connecticut Departmentof Environmental Protection, sued Devin Marquez, a staff attorney at theConnecticut Department of Administrative Services, in an action characterizedby the Second Circuit as a “backward- looking” right of access claim. Sousacontended that he did not win his earlier employment-related suit because offalse statements and deliberate omissions in an investigative report issued byMarquez.
The Second Circuit rejected Sousa’s appeal from an adverse district court ruling, explainingthat:
[1] “Even assuming that so-called ‘backward looking’right-of-access claims are viable in this Circuit, such claims cannot proceedif the plaintiff, asserting that the government concealed or manipulatedrelevant facts, was aware of the key facts at issue at the time of the earlierlawsuit. In other words, “A plaintiff with knowledge of the crucial facts andan opportunity to rebut opposing evidence does have adequate access to ajudicial remedy” available to him or to her in the course of that litigation.
[2] The District Court’s opinion in the prior suitdemonstrates that the Court did not rely on statements or omissions inMarquez’s report and, therefore, Sousa has not shown that Marquez’s purportedactions caused or resulted in a violation of his rights.
The decision is posted on the Internet at:http://www.ca2.uscourts.gov/decisions/isysquery/d78e4359-b8c7-4710-b019-28febe041619/1/doc/12-403_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d78e4359-b8c7-4710-b019-28febe041619/1/hilite/
Proving that a work-connected injury suffered as the result of an unexpected or unforeseeable event is critical to the approval of an application for accidental disability retirement benefits
To contact us Click HERE
Provingthat a work-connected injury suffered as the result of an unexpected orunforeseeable event is critical to the approval of an application foraccidental disability retirement benefits
Suppa v DiNapoli, 2012 NY Slip Op 08622, Appellate Division, ThirdDepartment
FrankJ. Suppa, a police detective, suffered a back and knee injury when, in thecourse of his conducting a surveillance of a suspect, stones on the retainingwall on which he was standing shifted causing him to fall.
Contending that he was permanently disabled from performing his duties as a detective as the result of his fall, Suppa filed an application with the New York Employees' Retirement System for accidental disability retirement benefits and, in the alternative, an application for performance of duty disability retirement benefits.
TheRetirement System found that Suppa was permanently disabled from performing hisduties as a police detective as a result of his injuries and his application for performance of duty retirement benefits was approved.
Asto Suppa’s application for accidental disability retirement benefits, theSystem denied that application, ruling that the incident leading to hisdisability “did not constitute an accident within the meaning of the Retirementand Social Security Law.”
TheAppellate Division agreed, noting that the applicant ”bears the burden of proving thathis [or her] injury was accidental” and the Retirement System’s determination to thecontrary will be sustained “if supported by substantial evidence."
Anaccident within the meaning of the Retirement and Social Security Law,explained the court, is "a sudden, fortuitous mischance which isunexpected and out of the ordinary.”
Further,said the Appellate Division, "an incident does not qualify as an accidentjustifying the award of accidental disability retirement benefits where theinjury results from an expected or foreseeable event arising during theperformance of routine employment duties."
Suppahad testified that he was performing a routine job duty when he was injured andthat he was aware that the stone wall that he climbed upon was made up of"large loose boulders" that were merely piled on top of each other,without anything holding the boulders together.
Underthese circumstances, said the court, the possibility that one of the boulderswould come loose under Suppa's weight as he was standing on it was aforeseeable event.
Accordingly, substantial evidence supported System's determinationthat the incident did not constitute an accident within the meaning of theRetirement and Social Security Law.
Thedecision is posted on the Internet at:
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General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections207-a/207-c and providing benefits thereunder and other disability retirementissues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ foradditional information about this electronic reference manual.
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Provingthat a work-connected injury suffered as the result of an unexpected orunforeseeable event is critical to the approval of an application foraccidental disability retirement benefits
Suppa v DiNapoli, 2012 NY Slip Op 08622, Appellate Division, ThirdDepartment
FrankJ. Suppa, a police detective, suffered a back and knee injury when, in thecourse of his conducting a surveillance of a suspect, stones on the retainingwall on which he was standing shifted causing him to fall.
Contending that he was permanently disabled from performing his duties as a detective as the result of his fall, Suppa filed an application with the New York Employees' Retirement System for accidental disability retirement benefits and, in the alternative, an application for performance of duty disability retirement benefits.
TheRetirement System found that Suppa was permanently disabled from performing hisduties as a police detective as a result of his injuries and his application for performance of duty retirement benefits was approved.
Asto Suppa’s application for accidental disability retirement benefits, theSystem denied that application, ruling that the incident leading to hisdisability “did not constitute an accident within the meaning of the Retirementand Social Security Law.”
TheAppellate Division agreed, noting that the applicant ”bears the burden of proving thathis [or her] injury was accidental” and the Retirement System’s determination to thecontrary will be sustained “if supported by substantial evidence."
Anaccident within the meaning of the Retirement and Social Security Law,explained the court, is "a sudden, fortuitous mischance which isunexpected and out of the ordinary.”
Further,said the Appellate Division, "an incident does not qualify as an accidentjustifying the award of accidental disability retirement benefits where theinjury results from an expected or foreseeable event arising during theperformance of routine employment duties."
Suppahad testified that he was performing a routine job duty when he was injured andthat he was aware that the stone wall that he climbed upon was made up of"large loose boulders" that were merely piled on top of each other,without anything holding the boulders together.
Underthese circumstances, said the court, the possibility that one of the boulderswould come loose under Suppa's weight as he was standing on it was aforeseeable event.
Accordingly, substantial evidence supported System's determinationthat the incident did not constitute an accident within the meaning of theRetirement and Social Security Law.
Thedecision is posted on the Internet at:
====================================
General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections207-a/207-c and providing benefits thereunder and other disability retirementissues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ foradditional information about this electronic reference manual.
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The Dormitory Authority of the State of New York (DASNY) annual report is now available on the Internet
To contact us Click HERE
The Dormitory Authority of the State of New York (DASNY)annual report is now available on the InternetSource: Dormitory Authority of the State of New York
Dormitory Authority of the State of New York[DASNY] Chair Alfonso L. Carney, Jr., and DASNY President PaulT. Williams, Jr., advise that DASNY's 2012 Annual Report is now availableon the Internet at www.dasny.org/2012AnnualReport*
The Report highlights DASNY's efforts to fulfill itscommitment to excellence, innovation and diversity while serving the needs ofits public and private clients during 2012.
This includes DASNY’s emphasis on “greenconstruction.” in its pipeline involving 763 projects for healthcare, higher education and other public purposes with an estimated value ofmore than $6 billion. For example, residence hall projects at State University of New York campuses at Brockport and Oswego earned Leadershipin Energyand Environmental Design[LEED] Gold certifications while this year DASNY’s headquarters in Albanywas awarded LEED Gold status for its existing facilities.
A LEEDCertification reflects an independent, third-party evaluation and verification that a building, home, or community wasdesigned and built using strategies aimed at achieving high performance in keyareas of human and environmental health: sustainable site development, watersavings, energy efficiency, materials selection, and indoor environmentalquality.
*N.B. In accordance withits "green policies", DSANY's 2012 Annual Report is only availableas a PDF file posted on the Internet.
The Dormitory Authority of the State of New York (DASNY)annual report is now available on the InternetSource: Dormitory Authority of the State of New York
Dormitory Authority of the State of New York[DASNY] Chair Alfonso L. Carney, Jr., and DASNY President PaulT. Williams, Jr., advise that DASNY's 2012 Annual Report is now availableon the Internet at www.dasny.org/2012AnnualReport*
The Report highlights DASNY's efforts to fulfill itscommitment to excellence, innovation and diversity while serving the needs ofits public and private clients during 2012.
This includes DASNY’s emphasis on “greenconstruction.” in its pipeline involving 763 projects for healthcare, higher education and other public purposes with an estimated value ofmore than $6 billion. For example, residence hall projects at State University of New York campuses at Brockport and Oswego earned Leadershipin Energyand Environmental Design[LEED] Gold certifications while this year DASNY’s headquarters in Albanywas awarded LEED Gold status for its existing facilities.
A LEEDCertification reflects an independent, third-party evaluation and verification that a building, home, or community wasdesigned and built using strategies aimed at achieving high performance in keyareas of human and environmental health: sustainable site development, watersavings, energy efficiency, materials selection, and indoor environmentalquality.
*N.B. In accordance withits "green policies", DSANY's 2012 Annual Report is only availableas a PDF file posted on the Internet.
Payday Loans That Don't Require Direct Deposit
To contact us Click HERE
"Where can I borrow without a checking account and no credit?" Most of the time, we tend to think that if you do not have a bank checking account, it is impossible for you to get a guaranteed loan anywhere. Understandably, most of the fast payday loan lenders require customers to have a checking account with direct deposit as it makes it easy for them to debit their customer's accounts for monies owed to them. However, if you need to borrow money and have bad credit and no checking account, it is possible to find instant payday loans that don't require direct deposit.
Trends have changed and there are unsecured personal loans for people without a bank account as well as short term cash advance loans with no bank statement needed. Nowadays, online payday personal loan lenders with no direct deposit requirements only require you to have a savings account or debit card. For people who need a quick loan but have no bank checking account, this will come as a much needed solution.
You can search for online signature loans with no bank account needed. Over the Internet, you would be able to find some loan comparison websites which help you to find out who has the lowest cost payday loan that don't require direct deposit which you can apply for a 12 month personal loan without a bank checking account. However, do check to see if it is a reputable loan lender you are dealing with. BBB-approved loan lenders with no credit check are regulated and they adhere to strict government laws on consumer loans so they provide more security and also provide an avenue for legal recourse if there is any dispute in the future.
No faxing payday loans that don't need a checking account can also be made available through peer lending websites like Prosper, which helps to match small-individual lenders with borrowers with less bureaucracy. A Prosper alternative is LendingClub or Zopa from the UK. As always, do your due diligence first to find online personal loans with no direct deposit requirement. Good luck.
Trends have changed and there are unsecured personal loans for people without a bank account as well as short term cash advance loans with no bank statement needed. Nowadays, online payday personal loan lenders with no direct deposit requirements only require you to have a savings account or debit card. For people who need a quick loan but have no bank checking account, this will come as a much needed solution.
You can search for online signature loans with no bank account needed. Over the Internet, you would be able to find some loan comparison websites which help you to find out who has the lowest cost payday loan that don't require direct deposit which you can apply for a 12 month personal loan without a bank checking account. However, do check to see if it is a reputable loan lender you are dealing with. BBB-approved loan lenders with no credit check are regulated and they adhere to strict government laws on consumer loans so they provide more security and also provide an avenue for legal recourse if there is any dispute in the future.
No faxing payday loans that don't need a checking account can also be made available through peer lending websites like Prosper, which helps to match small-individual lenders with borrowers with less bureaucracy. A Prosper alternative is LendingClub or Zopa from the UK. As always, do your due diligence first to find online personal loans with no direct deposit requirement. Good luck.
16 Aralık 2012 Pazar
Members of the State's Security Guard Advisory Council are State officers or employees for the purposes of Public Officers Law §17
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Members of the State's Security Guard Advisory Council are State officers or employees for the purposes of Public Officers Law §17
Opinions of the Attorney General, Formal Opinion 2012- F2
Public Officers Law §17 provides for the defense and indemnification of State officers and employees sued in a civil action or proceeding in any state or federal court for acts or omissions involving the performance of their official duties.
The Attorney General has advised Gina L. Bianchi, Esq., DeputyCommissioner and Counsel, New York State’s Division of Criminal Justice Services, thatmembers of the Security Guard Advisory Council are State officers or employeesfor the purposes of Public Officers Law §17.
Presumably the same would be true with respect to the provisions of Public Officers Law §19's applicability to such Council members.
Public Officers Law §19 provides, in pertinent part, that it is “the duty of the state to pay reasonable attorneys' fees andlitigation expenses incurred by or on behalf of an employee in his or herdefense of a criminal proceeding in a state or federal court arising out of anyact which occurred while such employee was acting within the scope of his* public employment or duties upon his acquittal orupon the dismissal of the criminal charges against him.”
Withrespect to political subdivisions of the State, Public Officers Law §18 authorizes such entities, “by the adoption of local law,by-law, resolution, rule or regulation,” to provide for the defense and indemnification of its officers and employees in the event any such persons are sued in federal or state courts in a civil matter related to theperformance of their official duties.
* §22 of the General ConstructionLaw, in pertinent part, provides that “Whenever words of the masculineor feminine gender appear in any law, rule or regulation, unless the sense ofthe sentence indicates otherwise, they shall be deemed to refer to both male orfemale persons.”
The Attorney General's Opinion 2012-F2 is posted on theInternet as a PDF file at:http://www.ag.ny.gov/sites/default/files/opinion/2012-f2pw.pdf
Members of the State's Security Guard Advisory Council are State officers or employees for the purposes of Public Officers Law §17
Opinions of the Attorney General, Formal Opinion 2012- F2
Public Officers Law §17 provides for the defense and indemnification of State officers and employees sued in a civil action or proceeding in any state or federal court for acts or omissions involving the performance of their official duties.
The Attorney General has advised Gina L. Bianchi, Esq., DeputyCommissioner and Counsel, New York State’s Division of Criminal Justice Services, thatmembers of the Security Guard Advisory Council are State officers or employeesfor the purposes of Public Officers Law §17.
Presumably the same would be true with respect to the provisions of Public Officers Law §19's applicability to such Council members.
Public Officers Law §19 provides, in pertinent part, that it is “the duty of the state to pay reasonable attorneys' fees andlitigation expenses incurred by or on behalf of an employee in his or herdefense of a criminal proceeding in a state or federal court arising out of anyact which occurred while such employee was acting within the scope of his* public employment or duties upon his acquittal orupon the dismissal of the criminal charges against him.”
Withrespect to political subdivisions of the State, Public Officers Law §18 authorizes such entities, “by the adoption of local law,by-law, resolution, rule or regulation,” to provide for the defense and indemnification of its officers and employees in the event any such persons are sued in federal or state courts in a civil matter related to theperformance of their official duties.
* §22 of the General ConstructionLaw, in pertinent part, provides that “Whenever words of the masculineor feminine gender appear in any law, rule or regulation, unless the sense ofthe sentence indicates otherwise, they shall be deemed to refer to both male orfemale persons.”
The Attorney General's Opinion 2012-F2 is posted on theInternet as a PDF file at:http://www.ag.ny.gov/sites/default/files/opinion/2012-f2pw.pdf
Audits released by the New York State Comptroller
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Audits released by the New York State ComptrollerFrom the Office of the State Comptroller, December 11, 2012
On December 11, 2012 New York State Comptroller Thomas P.DiNapoli announced the following audits of State agencies by his office have been issued.
The audits addressed such issues as overtime procedures, processing NYSHIP health insurance claims, travel expenses incurred by certain state workers, the disposal of computers, Medicade payments and dual employment.
Office of Court Administration, Controls OverOvertime Costs (2011-S-2)
Based on a random sample of 196 overtime payments, auditors found 110 lackedrequired written pre-approval for scheduled overtime and 86 lackeddocumentation to support that a required review was done to identifyalternatives for unscheduled overtime. OCA's Financial Management InformationSystem summary level overtime reporting was not being routinely provided to thecourts for monitoring purposes and no user training for the System had takenplace in years. Auditors recommended OCA ensure that supervisory staff complywith requirements for written preapproval of scheduled overtime and documentedanalysis of potential steps to avoid unscheduled overtime; make sure allappropriate steps have been undertaken to control public safety departmentovertime costs; and ensure that the new financial management system is rolledout with necessary user training and support.
New York State Health Insurance Program,Empire BlueCross BlueShield Coordination of Benefits With Medicare Part APayments (2011-S-31)
Empire generally processed claims correctly when it was paid as the primarypayer for patients with both Empire Plan and Medicare coverage. However,auditors found Empire was paid incorrectly as the primary payer on 13 claimstotaling $254,141, when Medicare should have been the primary payer.
Auditors recommended Empire develop controls to help ensure it pays as thesecondary payer when Medicare should be the primary payer; and periodically confirmwith Civil Service the employment status of members who appear to beMedicare-eligible and have active employment status.
SUNY College at Cobleskill, Selected EmployeeTravel Expenses (2012-S-143)
As part of a statewide initiative to determine whether the use of travelmoney by selected government employees was appropriate, auditors examinedtravel expenses for the highest-cost travelers in the state. These employeesincurred more than $100,000 in travel expenses during the three year periodending March 31, 2011. One of these employees worked at the College atCobleskill and had travel costs totaling $181,890. Auditors found that thetravel expenses for the one College employee selected for audit were documentedand adhered to State travel rules and regulations.
SUNY College at Oneonta, Selected EmployeeTravel Expenses (2012-S-145)
As part of a statewide initiative to determine whether the use of travel moneyby selected government employees was appropriate, we audited travel expensesfor the highest-cost travelers in the state. These employees incurred more than$100,000 in travel expenses during the three year period ending March 31, 2011.Three of these employees worked at the College at Oneonta and had travel coststotaling $326,125. Auditors found that the travel expenses for the threeCollege employees selected for audit were documented and adhered to Statetravel rules and regulations.
State Office for the Aging, Disposal ofElectronic Devices (2012-S-39)
During March 2012, the office had amassed 18 computers that were ready forsurplus sale. Using forensic software, auditors analyzed the media componentsof each device and found none contained any readable data and concluded theoffice has complied with requirements to protect sensitive information.
Department of Health Medicaid Payments forDental Consultations (Follow-Up) (2012-F-27)
An initial audit report examined Medicaid payments to dental specialists forconsultation services. Based on a statistical analysis of a sample of claimspaid to ten dental specialists, auditors estimated the claims for thesespecialists alone accounted for at least $1.2 million of Medicaid overpaymentsto as much as $1.3 million. Auditors concluded that if these results held truefor the claims of all other providers of dental consultations during the auditperiod, then New York's Medicaid program overpaid an additional $2.6 million.In a follow-up report, auditors found DOH officials have made significantprogress in correcting the problems identified in the initial report.
City University of New York, New York City Department of Parks andRecreation - Questionable Timekeeping Practices Relating to the Dual Employmentof Stationary Engineers (2011-S-27)
CUNY and Parks both employ stationary engineers, who are responsible for avariety of functions, such as operating and maintaining power plants for parksand maintaining campus buildings for CUNY. Auditors matched the state payroll,which accounts for CUNY employees, with the city payroll, which accounts forParks employees, for the period July 1, 2009 to June 30, 2010, and identifiedten stationary engineers who received combined earnings from both CUNY andParks that ranged from $150,000 to $256,000. Auditors found 338 occasions whereengineers reported being present at both jobs at the same time. In another 155cases, there was no break between the times the staff reported leaving one joband starting their shift at the other. Auditors recommended management increaseoversight of stationary engineers and their supervisors to ensure that allschedule changes are properly documented and approved and implement anautomated timekeeping system and ensure stationary engineers follow regulationsrelating to dual employment.
Audits released by the New York State ComptrollerFrom the Office of the State Comptroller, December 11, 2012
On December 11, 2012 New York State Comptroller Thomas P.DiNapoli announced the following audits of State agencies by his office have been issued.
The audits addressed such issues as overtime procedures, processing NYSHIP health insurance claims, travel expenses incurred by certain state workers, the disposal of computers, Medicade payments and dual employment.
Office of Court Administration, Controls OverOvertime Costs (2011-S-2)
Based on a random sample of 196 overtime payments, auditors found 110 lackedrequired written pre-approval for scheduled overtime and 86 lackeddocumentation to support that a required review was done to identifyalternatives for unscheduled overtime. OCA's Financial Management InformationSystem summary level overtime reporting was not being routinely provided to thecourts for monitoring purposes and no user training for the System had takenplace in years. Auditors recommended OCA ensure that supervisory staff complywith requirements for written preapproval of scheduled overtime and documentedanalysis of potential steps to avoid unscheduled overtime; make sure allappropriate steps have been undertaken to control public safety departmentovertime costs; and ensure that the new financial management system is rolledout with necessary user training and support.
New York State Health Insurance Program,Empire BlueCross BlueShield Coordination of Benefits With Medicare Part APayments (2011-S-31)
Empire generally processed claims correctly when it was paid as the primarypayer for patients with both Empire Plan and Medicare coverage. However,auditors found Empire was paid incorrectly as the primary payer on 13 claimstotaling $254,141, when Medicare should have been the primary payer.
Auditors recommended Empire develop controls to help ensure it pays as thesecondary payer when Medicare should be the primary payer; and periodically confirmwith Civil Service the employment status of members who appear to beMedicare-eligible and have active employment status.
SUNY College at Cobleskill, Selected EmployeeTravel Expenses (2012-S-143)
As part of a statewide initiative to determine whether the use of travelmoney by selected government employees was appropriate, auditors examinedtravel expenses for the highest-cost travelers in the state. These employeesincurred more than $100,000 in travel expenses during the three year periodending March 31, 2011. One of these employees worked at the College atCobleskill and had travel costs totaling $181,890. Auditors found that thetravel expenses for the one College employee selected for audit were documentedand adhered to State travel rules and regulations.
SUNY College at Oneonta, Selected EmployeeTravel Expenses (2012-S-145)
As part of a statewide initiative to determine whether the use of travel moneyby selected government employees was appropriate, we audited travel expensesfor the highest-cost travelers in the state. These employees incurred more than$100,000 in travel expenses during the three year period ending March 31, 2011.Three of these employees worked at the College at Oneonta and had travel coststotaling $326,125. Auditors found that the travel expenses for the threeCollege employees selected for audit were documented and adhered to Statetravel rules and regulations.
State Office for the Aging, Disposal ofElectronic Devices (2012-S-39)
During March 2012, the office had amassed 18 computers that were ready forsurplus sale. Using forensic software, auditors analyzed the media componentsof each device and found none contained any readable data and concluded theoffice has complied with requirements to protect sensitive information.
Department of Health Medicaid Payments forDental Consultations (Follow-Up) (2012-F-27)
An initial audit report examined Medicaid payments to dental specialists forconsultation services. Based on a statistical analysis of a sample of claimspaid to ten dental specialists, auditors estimated the claims for thesespecialists alone accounted for at least $1.2 million of Medicaid overpaymentsto as much as $1.3 million. Auditors concluded that if these results held truefor the claims of all other providers of dental consultations during the auditperiod, then New York's Medicaid program overpaid an additional $2.6 million.In a follow-up report, auditors found DOH officials have made significantprogress in correcting the problems identified in the initial report.
City University of New York, New York City Department of Parks andRecreation - Questionable Timekeeping Practices Relating to the Dual Employmentof Stationary Engineers (2011-S-27)
CUNY and Parks both employ stationary engineers, who are responsible for avariety of functions, such as operating and maintaining power plants for parksand maintaining campus buildings for CUNY. Auditors matched the state payroll,which accounts for CUNY employees, with the city payroll, which accounts forParks employees, for the period July 1, 2009 to June 30, 2010, and identifiedten stationary engineers who received combined earnings from both CUNY andParks that ranged from $150,000 to $256,000. Auditors found 338 occasions whereengineers reported being present at both jobs at the same time. In another 155cases, there was no break between the times the staff reported leaving one joband starting their shift at the other. Auditors recommended management increaseoversight of stationary engineers and their supervisors to ensure that allschedule changes are properly documented and approved and implement anautomated timekeeping system and ensure stationary engineers follow regulationsrelating to dual employment.
A court’s review of a quasi-judicial administrative hearing is limited
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A court’s review of a quasi-judicial administrativehearing is limited
Mannino v Department of Motor Vehicles.- Traffic Violations Division,2012 NY Slip Op 08529, Appellate Division, Second Department
In this CPLR Article 78 proceeding the Appellate Divisionreviewed a determination of the Administrative Appeals Board of the New YorkState Department of Motor Vehicles that confirmed a determination of anAdministrative Law Judge.
Sustaining the Board’s decision, and dismissing theproceeding on the merits, the Appellate Division set out the followingguidelines addressing the role of the courts in considering appeals from aquasi-judicial administrative decision.
The court said:
[1] To annul an administrative determination made after ahearing directed by law at which evidence is taken, a court must conclude thatthe record lacks substantial evidence to support the determination, explainingthat substantial evidence is "such relevant proof as a reasonable mind mayaccept as adequate to support a conclusion or ultimate fact;" and
[2] The courts may not weigh the evidence or reject thechoice made by an administrative agency or tribunal where the evidence isconflicting and room for choice exists.
Deciding, upon review of the record, the record demonstratesthat the findings of the Administrative Law Judge are supported by substantialevidence, the Appellate Division dismissed the appeal.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08529.htm
A court’s review of a quasi-judicial administrativehearing is limited
Mannino v Department of Motor Vehicles.- Traffic Violations Division,2012 NY Slip Op 08529, Appellate Division, Second Department
In this CPLR Article 78 proceeding the Appellate Divisionreviewed a determination of the Administrative Appeals Board of the New YorkState Department of Motor Vehicles that confirmed a determination of anAdministrative Law Judge.
Sustaining the Board’s decision, and dismissing theproceeding on the merits, the Appellate Division set out the followingguidelines addressing the role of the courts in considering appeals from aquasi-judicial administrative decision.
The court said:
[1] To annul an administrative determination made after ahearing directed by law at which evidence is taken, a court must conclude thatthe record lacks substantial evidence to support the determination, explainingthat substantial evidence is "such relevant proof as a reasonable mind mayaccept as adequate to support a conclusion or ultimate fact;" and
[2] The courts may not weigh the evidence or reject thechoice made by an administrative agency or tribunal where the evidence isconflicting and room for choice exists.
Deciding, upon review of the record, the record demonstratesthat the findings of the Administrative Law Judge are supported by substantialevidence, the Appellate Division dismissed the appeal.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08529.htm
Claims that health impairments suffered by 9-11 first responders seeking benefits resulted from duties performed at the World Trade Center requires the pension fund to produce competent evidence to rebut the statutory presumption that such was the case
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Claims that healthimpairments suffered by 9-11 first responders seeking benefits resulted fromduties performed at the World Trade Center requires the pension fund to producecompetent evidence to rebut the statutory presumption that such was the caseBitchatchi v Board of Trustees of the N.Y. City Police Dept.Pension Fund, Art. II, 2012 NYSlip Op 08566, Court of Appeals
The Administrative Code of City of New York §13-252.1[1][a]* provides, in pertinent part, that:“Notwithstanding any provisions of this code or of any general, special orlocal law, charter or rule or regulation to the contrary, if any condition orimpairment of health is caused by a qualifying World Trade Center condition asdefined in section two of the retirement and social security law, it shall bepresumptive evidence that it was incurred in the performance and discharge ofduty and the natural and proximate result of an accident not caused by suchmember's own willful negligence, unless the contrary be proved by competentevidence, " [emphasis supplied by the court].
Addressing a number of appeals involving police officers whoresponded to provide assistance at the World Trade Center following theSeptember 11, 2001 attacks in which two officers sought accidental disabilityretirement benefits [ADR] and the surviving spouse of another officer made aclaim for line-of-duty death benefits, the Court of Appeals said that “Thecommon issue presented is whether the pension fund respondents producedcompetent evidence to rebut the WTC presumption accorded to petitioners'claims” by law.
In this instance the court held that “that respondents didnot meet their burden of disproving that the officers' disabilities or deathwere causally related to their work at the World Trade Center and relatedsites,” and thus the applications of two officers seeking [ADR] benefits andthe claim of the surviving spouse of the third officer for line-of-duty deathbenefits should be granted.
The court explained that although a claimant filing for ADRbenefits ordinarily has the burden of proving causation in an administrativeproceeding, the Legislature's response to the World Trade Center tragedy was toenact a new statute creating a rebuttable presumption in favor of ADR benefitsfor police officers who performed rescue, recovery or cleanup operations atspecified locations, including the World Trade Center and the Fresh KillsLandfill.
Accordingly, under the WTC presumption, the pension fundbears the initial burden of proving that a claimant's qualifying condition wasnot caused by the hazards encountered at the WTC site as the Legislaturecreated the WTC presumption to benefit first responders because of theevidentiary difficulty in establishing that non-trauma conditions, such ascancer, could be traced to exposure to the toxins present at the WTC site inthe aftermath of the destruction.
Hence, unlike ordinary ADR claimants, first responders neednot submit any evidence — credible or otherwise — of causation to obtain theenhanced benefits. Nevertheless, the Legislature did not create a per se rulemandating ADR benefits for all eligible responders. Rather, it provided that apension fund could rebut the presumption by "competent evidence."
In other words, said the Court of Appeals, unlike thetypical application for disability benefits, a pension fund cannot deny ADRbenefits by relying solely on the absence of evidence tying the disability tothe exposure.
* Similar provisions extend the WTC presumptionto other classes of first responders, i.e., Administrative Code of City of NY §13-353.1 [firefighters]; Retirement and Social Security Law §363-bb[h] [state police];and Retirement and Social Security Law §605-b[d] [sanitation workers]. Thepresumption also applies where a police officer later dies and death benefitsare sought (Administrative Code of City of NY §3-252.1 [[4]).
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08566.htm
=======================
General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections207-a/207-c and providing benefits thereunder and other disability retirementissues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ foradditional information about this electronic reference manual.
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Claims that healthimpairments suffered by 9-11 first responders seeking benefits resulted fromduties performed at the World Trade Center requires the pension fund to producecompetent evidence to rebut the statutory presumption that such was the caseBitchatchi v Board of Trustees of the N.Y. City Police Dept.Pension Fund, Art. II, 2012 NYSlip Op 08566, Court of Appeals
The Administrative Code of City of New York §13-252.1[1][a]* provides, in pertinent part, that:“Notwithstanding any provisions of this code or of any general, special orlocal law, charter or rule or regulation to the contrary, if any condition orimpairment of health is caused by a qualifying World Trade Center condition asdefined in section two of the retirement and social security law, it shall bepresumptive evidence that it was incurred in the performance and discharge ofduty and the natural and proximate result of an accident not caused by suchmember's own willful negligence, unless the contrary be proved by competentevidence, " [emphasis supplied by the court].
Addressing a number of appeals involving police officers whoresponded to provide assistance at the World Trade Center following theSeptember 11, 2001 attacks in which two officers sought accidental disabilityretirement benefits [ADR] and the surviving spouse of another officer made aclaim for line-of-duty death benefits, the Court of Appeals said that “Thecommon issue presented is whether the pension fund respondents producedcompetent evidence to rebut the WTC presumption accorded to petitioners'claims” by law.
In this instance the court held that “that respondents didnot meet their burden of disproving that the officers' disabilities or deathwere causally related to their work at the World Trade Center and relatedsites,” and thus the applications of two officers seeking [ADR] benefits andthe claim of the surviving spouse of the third officer for line-of-duty deathbenefits should be granted.
The court explained that although a claimant filing for ADRbenefits ordinarily has the burden of proving causation in an administrativeproceeding, the Legislature's response to the World Trade Center tragedy was toenact a new statute creating a rebuttable presumption in favor of ADR benefitsfor police officers who performed rescue, recovery or cleanup operations atspecified locations, including the World Trade Center and the Fresh KillsLandfill.
Accordingly, under the WTC presumption, the pension fundbears the initial burden of proving that a claimant's qualifying condition wasnot caused by the hazards encountered at the WTC site as the Legislaturecreated the WTC presumption to benefit first responders because of theevidentiary difficulty in establishing that non-trauma conditions, such ascancer, could be traced to exposure to the toxins present at the WTC site inthe aftermath of the destruction.
Hence, unlike ordinary ADR claimants, first responders neednot submit any evidence — credible or otherwise — of causation to obtain theenhanced benefits. Nevertheless, the Legislature did not create a per se rulemandating ADR benefits for all eligible responders. Rather, it provided that apension fund could rebut the presumption by "competent evidence."
In other words, said the Court of Appeals, unlike thetypical application for disability benefits, a pension fund cannot deny ADRbenefits by relying solely on the absence of evidence tying the disability tothe exposure.
* Similar provisions extend the WTC presumptionto other classes of first responders, i.e., Administrative Code of City of NY §13-353.1 [firefighters]; Retirement and Social Security Law §363-bb[h] [state police];and Retirement and Social Security Law §605-b[d] [sanitation workers]. Thepresumption also applies where a police officer later dies and death benefitsare sought (Administrative Code of City of NY §3-252.1 [[4]).
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08566.htm
=======================
General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections207-a/207-c and providing benefits thereunder and other disability retirementissues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ foradditional information about this electronic reference manual.
========================
The penalty of termination imposed on petitioner was excessive in light of all the circumstances
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The penalty of termination imposed on petitioner wasexcessive in light of all the circumstances
Principe v New York City Dept. of Educ., 2012 NY Slip Op 08568, Court ofAppeals
The Court of Appeal, Judge Smith dissenting, said thatAppellate Division [94 AD3d 43]“correctly determined that the penalty of termination imposed on petitioner wasexcessive in light of all the circumstances.”
The Appellate Division decided that “Given all of thecircumstances, including the educator’s “spotless record as a teacher for fiveyears and his promotion to dean two years prior to the incidents at issue,” the penalty excessive and shocking to [its] senseof fairness, citing the Pell Doctrine [Pell v Board of Educ. Of Union FreeSchool Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County,34 NY2d 222].”
NYPPL's summary of the Appellate Division’s ruling is posted on the Internet at:http://publicpersonnellaw.blogspot.com/search?q=Principe
The Court of Appeals’ ruling is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08568.htm
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NYPER’s new e-manual A Reasonable PenaltyUnder the Circumstances - A Concise Guide toPenalties Imposed on Public Employees in New York State Found Guilty of SelectedActs of Misconduct – is scheduled for publication in January 2013. Forinformation about this e-manual send your e-mail to publications@nycap.rr.com with theword “Reasonable” in the subject line.
The penalty of termination imposed on petitioner wasexcessive in light of all the circumstances
Principe v New York City Dept. of Educ., 2012 NY Slip Op 08568, Court ofAppeals
The Court of Appeal, Judge Smith dissenting, said thatAppellate Division [94 AD3d 43]“correctly determined that the penalty of termination imposed on petitioner wasexcessive in light of all the circumstances.”
The Appellate Division decided that “Given all of thecircumstances, including the educator’s “spotless record as a teacher for fiveyears and his promotion to dean two years prior to the incidents at issue,” the penalty excessive and shocking to [its] senseof fairness, citing the Pell Doctrine [Pell v Board of Educ. Of Union FreeSchool Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County,34 NY2d 222].”
NYPPL's summary of the Appellate Division’s ruling is posted on the Internet at:http://publicpersonnellaw.blogspot.com/search?q=Principe
The Court of Appeals’ ruling is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08568.htm
_____________________________
NYPER’s new e-manual A Reasonable PenaltyUnder the Circumstances - A Concise Guide toPenalties Imposed on Public Employees in New York State Found Guilty of SelectedActs of Misconduct – is scheduled for publication in January 2013. Forinformation about this e-manual send your e-mail to publications@nycap.rr.com with theword “Reasonable” in the subject line.
12 Aralık 2012 Çarşamba
Payday Loans That Don't Require Direct Deposit
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"Where can I borrow without a checking account and no credit?" Most of the time, we tend to think that if you do not have a bank checking account, it is impossible for you to get a guaranteed loan anywhere. Understandably, most of the fast payday loan lenders require customers to have a checking account with direct deposit as it makes it easy for them to debit their customer's accounts for monies owed to them. However, if you need to borrow money and have bad credit and no checking account, it is possible to find instant payday loans that don't require direct deposit.
Trends have changed and there are unsecured personal loans for people without a bank account as well as short term cash advance loans with no bank statement needed. Nowadays, online payday personal loan lenders with no direct deposit requirements only require you to have a savings account or debit card. For people who need a quick loan but have no bank checking account, this will come as a much needed solution.
You can search for online signature loans with no bank account needed. Over the Internet, you would be able to find some loan comparison websites which help you to find out who has the lowest cost payday loan that don't require direct deposit which you can apply for a 12 month personal loan without a bank checking account. However, do check to see if it is a reputable loan lender you are dealing with. BBB-approved loan lenders with no credit check are regulated and they adhere to strict government laws on consumer loans so they provide more security and also provide an avenue for legal recourse if there is any dispute in the future.
No faxing payday loans that don't need a checking account can also be made available through peer lending websites like Prosper, which helps to match small-individual lenders with borrowers with less bureaucracy. A Prosper alternative is LendingClub or Zopa from the UK. As always, do your due diligence first to find online personal loans with no direct deposit requirement. Good luck.
Trends have changed and there are unsecured personal loans for people without a bank account as well as short term cash advance loans with no bank statement needed. Nowadays, online payday personal loan lenders with no direct deposit requirements only require you to have a savings account or debit card. For people who need a quick loan but have no bank checking account, this will come as a much needed solution.
You can search for online signature loans with no bank account needed. Over the Internet, you would be able to find some loan comparison websites which help you to find out who has the lowest cost payday loan that don't require direct deposit which you can apply for a 12 month personal loan without a bank checking account. However, do check to see if it is a reputable loan lender you are dealing with. BBB-approved loan lenders with no credit check are regulated and they adhere to strict government laws on consumer loans so they provide more security and also provide an avenue for legal recourse if there is any dispute in the future.
No faxing payday loans that don't need a checking account can also be made available through peer lending websites like Prosper, which helps to match small-individual lenders with borrowers with less bureaucracy. A Prosper alternative is LendingClub or Zopa from the UK. As always, do your due diligence first to find online personal loans with no direct deposit requirement. Good luck.
Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli
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| Saratoga Springs Housing Authority criticized in audit Comptroller’s Audit Finds Problems In Dunkirk NY Thruway toll hike on hold |
Challenging the employee's dismissal during his or her probationary period
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Challenging the employee's dismissal during his or her probationary period
Supreme Court dismissed a former probationary employee’spetition seeking to annul his termination from his position, the revocation ofhis New York City Department of Education [DOE] teaching certification, hisplacement of his name on the DOE's Ineligible/Inquiry list,* and his overall unsatisfactory rating for the2010-2011 school year.
The Appellate Division sustained the lower court’s actions,explaining that the probationer had failed to establish that his termination,the revocation of his teaching certificate and his placement on the DOE'sineligible/inquiry list, was done in bad faith.
Addressing the individual’s allegation of bad faith, thecourt noted therecord contained evidence of good faith on DOE’s part. For example, said theAppellate Division, the school principal’s "intention was not to terminate [the] petitioner's employment but to extend his probation for an additional year."
In addition, said the court, the record contained evidence ofdeficiencies in individual's performance during the probationary period.
As to the individual’s challenge to the revocation of histeaching certification and the placement of his name on the ineligible/inquirylist, the Appellate Division ruled that those challenges were not untimely butthat Supreme Court had correctly sustained those administrative determinations.
Finally the Appellate Division pointed out that the lower court had correctly dismissed the individual’s challenge to his “U-rating” as it was prematurebecause he had not yet exhausted his administrative remedies.
*Placing an individual’s name on the "Ineligible/Inquiry" listmaintained by the New York Department of Education bars that individual fromemployment at any DOE school while his or her name remains on such list[McPherson v. New York City Dep't of Education, 457 F.3d 211].
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07888.htm
Supreme Court dismissed a former probationary employee’spetition seeking to annul his termination from his position, the revocation ofhis New York City Department of Education [DOE] teaching certification, hisplacement of his name on the DOE's Ineligible/Inquiry list,* and his overall unsatisfactory rating for the2010-2011 school year.
The Appellate Division sustained the lower court’s actions,explaining that the probationer had failed to establish that his termination,the revocation of his teaching certificate and his placement on the DOE'sineligible/inquiry list, was done in bad faith.
Addressing the individual’s allegation of bad faith, thecourt noted therecord contained evidence of good faith on DOE’s part. For example, said theAppellate Division, the school principal’s "intention was not to terminate [the] petitioner's employment but to extend his probation for an additional year."
In addition, said the court, the record contained evidence ofdeficiencies in individual's performance during the probationary period.
As to the individual’s challenge to the revocation of histeaching certification and the placement of his name on the ineligible/inquirylist, the Appellate Division ruled that those challenges were not untimely butthat Supreme Court had correctly sustained those administrative determinations.
Finally the Appellate Division pointed out that the lower court had correctly dismissed the individual’s challenge to his “U-rating” as it was prematurebecause he had not yet exhausted his administrative remedies.
*Placing an individual’s name on the "Ineligible/Inquiry" listmaintained by the New York Department of Education bars that individual fromemployment at any DOE school while his or her name remains on such list[McPherson v. New York City Dep't of Education, 457 F.3d 211].
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07888.htm
Reassignment of school principals challenged by students, resident taxpayers and employees of the school district
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Reassignment of school principals challenged by students,resident taxpayers and employees of the school districtDecisions of theCommissioner of Education, Decision 16,431
In these appeals to the Commissioner of Education the petitioners challenged the school board'sreassignment of school principals. As two separated appeals concerning the same issue werefiled by different petitioners, the Commissioner consolidated them because they“present similar issues of fact and law.”
The petitioners in Appeal I alleged that board members actednegligently, with a wrongful purpose and not in the best interest of students,taxpayers and school staff and asked the Commissioner to overturn the board’sdecision and remove certain named board members.
The petitioners in Appeal II asked the Commissioner to orderan “immediate mediation” of the parties’ dispute in order to ensure that theboard’s action “was done properly.”
The school district asked the Commissioner to dismiss bothappeals contending that
[1] The resolution passed following all due processrequirements, in accordance with board policies and pursuant to the board’spowers under the Education Law;
[2] The board was not required to provide a rationale forthe board’s decision
[3] the transfers were not made for a wrongful purpose or inwillful violation or neglect of duty. And
[4] The transfers were in the best interest of the district.
The Commissioner first addressed a number of proceduralissues that should be noted:
1. In Appeal II the petitioners submitted four newspaperarticles to support their position. The Commissioner noted that “It is wellsettled that newspaper articles do not constitute evidence of the truth of thestatements contained therein” and that he did not consider them “for theveracity of their content.”
2. Petitioners in both Appeal I and Appeal II seek classcertification but both appeals failed to satisfy the requirements. TheCommissioner explained that while petitioners, as district residents andtaxpayers, have standing to maintain the appeals and application, to the extentthey seek class certification, they have failed to meet the requirements as anappeal may only be maintained on behalf of a class where the class is sonumerous that joinder of all members is impracticable and where all questionsof fact and law are common to all members of the class. A petitioner seekingclass certification must set forth the number of individuals he or she seeks torepresent and must show that all questions of law and fact would be common toall members of the class. In this instance, said the Commissioner, the“pleadings are entirely devoid of any allegations addressing these criteria”and class status was denied.
3. Another critical procedural requirement regarding Appeal Iwas noted by the Commissioner – joining necessary parties. A party whose rightswould be adversely affected by a determination of an appeal in favor of apetitioner is a necessary party and must be joined. However in Appeal I twoindividual’s who would be affected if petitioners prevail on the appeal arenecessary parties and petitioners’ failure to join them requires dismissal ofAppeal I.
As to Appeal II, the Commissioner stated that it sought anorder commanding “immediate mediation” between the board and the community –conducted by a designee from the State Education Department – to ensure thatthe board’s action here challenged was “done properly” in accordance with statelaw, applicable district policies and “the best interest of” the district’sstudents.”
The Commissioner pointed out that an appeal to theCommissioner is appellate in nature and does not provide for investigations.Although petitioners do not explicitly request an investigation, said the Commissioner,their request for a mediation process to determine the propriety of the board’saction in light of their complaints is, in essence, a request for aninvestigation – relief that is not available in the context of an appeal under §310of the Education Law.
The final issue addressed by the Commissioner: theapplication of the petitioners in Appeal I for the removal of school officials.
The Commissioner said that although a member of the board ofeducation or a school officer may be removed from office pursuant to EducationLaw §306 when it is proven to the satisfaction of the Commissioner that theboard member or school officer has engaged in a willful violation or neglect ofduty under the Education Law or has willfully disobeyed a decision, order, ruleor regulation of the Board of Regents or Commissioner of Education thepetitioner has the burden of demonstrating a clear legal right to the reliefrequested and the burden of establishing the facts upon which petitioner seeksrelief.
Based on the record before the Commissioner, theCommissioner ruled that the petitioners in Appeal I have failed to establishthat the actions of the individual respondents in voting to transfer the twoprincipals warrant their removal. Further, said the Commissioner, the allegedviolations, even if proven, would not, on the record before him, “rise to thelevel of willful violation of law and neglect of duty that would constitutesufficient grounds for the removal of the individual respondents.”
The bottom line: The Commissioner decided that on the recordbefore him, petitioners have not met their burden of demonstrating thatrespondents engaged in any willful or intentional misconduct warranting theirremoval from office and dismissed the appeals and the application for theremoval of certain school officials.In light of this disposition, I need not consider theparties’ remaining contentions.
The decision is posted on the Internet at:http://www.counsel.nysed.gov/Decisions/volume52/d16431.html
Reassignment of school principals challenged by students,resident taxpayers and employees of the school districtDecisions of theCommissioner of Education, Decision 16,431
In these appeals to the Commissioner of Education the petitioners challenged the school board'sreassignment of school principals. As two separated appeals concerning the same issue werefiled by different petitioners, the Commissioner consolidated them because they“present similar issues of fact and law.”
The petitioners in Appeal I alleged that board members actednegligently, with a wrongful purpose and not in the best interest of students,taxpayers and school staff and asked the Commissioner to overturn the board’sdecision and remove certain named board members.
The petitioners in Appeal II asked the Commissioner to orderan “immediate mediation” of the parties’ dispute in order to ensure that theboard’s action “was done properly.”
The school district asked the Commissioner to dismiss bothappeals contending that
[1] The resolution passed following all due processrequirements, in accordance with board policies and pursuant to the board’spowers under the Education Law;
[2] The board was not required to provide a rationale forthe board’s decision
[3] the transfers were not made for a wrongful purpose or inwillful violation or neglect of duty. And
[4] The transfers were in the best interest of the district.
The Commissioner first addressed a number of proceduralissues that should be noted:
1. In Appeal II the petitioners submitted four newspaperarticles to support their position. The Commissioner noted that “It is wellsettled that newspaper articles do not constitute evidence of the truth of thestatements contained therein” and that he did not consider them “for theveracity of their content.”
2. Petitioners in both Appeal I and Appeal II seek classcertification but both appeals failed to satisfy the requirements. TheCommissioner explained that while petitioners, as district residents andtaxpayers, have standing to maintain the appeals and application, to the extentthey seek class certification, they have failed to meet the requirements as anappeal may only be maintained on behalf of a class where the class is sonumerous that joinder of all members is impracticable and where all questionsof fact and law are common to all members of the class. A petitioner seekingclass certification must set forth the number of individuals he or she seeks torepresent and must show that all questions of law and fact would be common toall members of the class. In this instance, said the Commissioner, the“pleadings are entirely devoid of any allegations addressing these criteria”and class status was denied.
3. Another critical procedural requirement regarding Appeal Iwas noted by the Commissioner – joining necessary parties. A party whose rightswould be adversely affected by a determination of an appeal in favor of apetitioner is a necessary party and must be joined. However in Appeal I twoindividual’s who would be affected if petitioners prevail on the appeal arenecessary parties and petitioners’ failure to join them requires dismissal ofAppeal I.
As to Appeal II, the Commissioner stated that it sought anorder commanding “immediate mediation” between the board and the community –conducted by a designee from the State Education Department – to ensure thatthe board’s action here challenged was “done properly” in accordance with statelaw, applicable district policies and “the best interest of” the district’sstudents.”
The Commissioner pointed out that an appeal to theCommissioner is appellate in nature and does not provide for investigations.Although petitioners do not explicitly request an investigation, said the Commissioner,their request for a mediation process to determine the propriety of the board’saction in light of their complaints is, in essence, a request for aninvestigation – relief that is not available in the context of an appeal under §310of the Education Law.
The final issue addressed by the Commissioner: theapplication of the petitioners in Appeal I for the removal of school officials.
The Commissioner said that although a member of the board ofeducation or a school officer may be removed from office pursuant to EducationLaw §306 when it is proven to the satisfaction of the Commissioner that theboard member or school officer has engaged in a willful violation or neglect ofduty under the Education Law or has willfully disobeyed a decision, order, ruleor regulation of the Board of Regents or Commissioner of Education thepetitioner has the burden of demonstrating a clear legal right to the reliefrequested and the burden of establishing the facts upon which petitioner seeksrelief.
Based on the record before the Commissioner, theCommissioner ruled that the petitioners in Appeal I have failed to establishthat the actions of the individual respondents in voting to transfer the twoprincipals warrant their removal. Further, said the Commissioner, the allegedviolations, even if proven, would not, on the record before him, “rise to thelevel of willful violation of law and neglect of duty that would constitutesufficient grounds for the removal of the individual respondents.”
The bottom line: The Commissioner decided that on the recordbefore him, petitioners have not met their burden of demonstrating thatrespondents engaged in any willful or intentional misconduct warranting theirremoval from office and dismissed the appeals and the application for theremoval of certain school officials.In light of this disposition, I need not consider theparties’ remaining contentions.
The decision is posted on the Internet at:http://www.counsel.nysed.gov/Decisions/volume52/d16431.html
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