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Evidence of progress in employee’s treatment for alcoholismtempers disciplinary penaltyNYC Department of Sanitation v Anonymous, OATH Index#1637/12
Although the New York City Department of Sanitation soughtto terminate an employee after a positive alcohol test, OATH Administrative LawJudge Tynia D. Richard recommended a 30-day suspension for the sanitationworker.
Judge Richard noted that the employee had offered evidenceof his progress through alcohol treatment as a recovering addict.
The Department’s request for termination was essentiallybased on the two earlier opportunities that it had provided the worker to recoverfrom his alcohol dependence.*
In fashioning a penalty recommendation, the ALJ noted thatemployee had voluntarily entered the treatment program, took responsibility forhis actions and showed insight into the extent of his problem, and that such apenalty might be combined with ongoing alcohol testing (though not providedunder Civil Service Law §75) as the Department sees fit.
* Individuals who abuse alcohol may be considered disabled under the ADAif the person is an alcoholic or a recovering alcoholic. Courts have usuallyheld that alcoholism is a covered disability. For example, in Williams v. Widnal, 119 F3d 305, [Cert. Denied 118 S. Ct. 871], thecourt said, without discussion, that alcoholism “is a covered disability.”
The decision is posted on the Internet at:http://archive.citylaw.org/oath/12_Cases/12-1637.pdf
30 Eylül 2012 Pazar
Statute of limitations for challenging a personnel decision begins running when the individual is notified of the final and binding determination
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Statute of limitations for challenging a personnel decisionbegins running when the individual is notified of the final and binding determination
McCarry v Purchase Coll., State Univ. of N.Y., 2012 NY Slip Op 06026,Appellate Division, Second Department
In a proceeding pursuant to CPLR Article 78 challenging thedecision of the President of the State University of New York College atPurchase not to reappoint an assistant professor to the Purchase faculty,Supreme Court annulled the President’s determination and remitted the matter to for a de novo review and a new determination. Supreme Court alsodirected the retroactive reinstatement of the faculty member with fullcompensation and benefits pending the de novo review.
The Appellate Division reversed the lower court’s rulings“on the law."
Pointing out that the assistant professor’s challenge to thePresident’s decision was time-barred by the four-month statute of limitations,the court explained that the statute of limitations set forth in CPLR §217(1)began to run on the date that the challenged determination became final andbinding.*
Citing Matter of Village of Westbury v Department ofTransp. of State of N.Y., 75 NY2d 62, the Appellate Division said that"A determination generally becomes binding when … the agency has reached adefinitive position that inflicts concrete injury to the aggrieved party thatcannot be prevented or significantly ameliorated by further administrativeaction” and the individual has been advised of that determination.
In this instance it was undisputed that the assistantprofessor commenced his Article 78 action more than four months after receivingnotice that he had not been reappointed to his teaching position.
Significantly, the court said that the limitations perioddid not run from the date upon which the assistant professor's fixed-duration employment contractautomatically ended but rather commenced to run when he received notice of the“final determination” that he would not be reappointed to the college faculty.
Further, said the court, even had the faculty member Article78 action “been timely commenced, the record demonstrates that the [CollegePresident] substantially complied with the internal rules of Purchase College,State University of New York and the determination was not arbitrary andcapricious."
* N.B. A request to “reconsider” afinal and binding administrative determination does not toll the running of theStatute of Limitations [Lavin v Lawrence, 54 AD3d 412].
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06026.htm
Statute of limitations for challenging a personnel decisionbegins running when the individual is notified of the final and binding determination
McCarry v Purchase Coll., State Univ. of N.Y., 2012 NY Slip Op 06026,Appellate Division, Second Department
In a proceeding pursuant to CPLR Article 78 challenging thedecision of the President of the State University of New York College atPurchase not to reappoint an assistant professor to the Purchase faculty,Supreme Court annulled the President’s determination and remitted the matter to for a de novo review and a new determination. Supreme Court alsodirected the retroactive reinstatement of the faculty member with fullcompensation and benefits pending the de novo review.
The Appellate Division reversed the lower court’s rulings“on the law."
Pointing out that the assistant professor’s challenge to thePresident’s decision was time-barred by the four-month statute of limitations,the court explained that the statute of limitations set forth in CPLR §217(1)began to run on the date that the challenged determination became final andbinding.*
Citing Matter of Village of Westbury v Department ofTransp. of State of N.Y., 75 NY2d 62, the Appellate Division said that"A determination generally becomes binding when … the agency has reached adefinitive position that inflicts concrete injury to the aggrieved party thatcannot be prevented or significantly ameliorated by further administrativeaction” and the individual has been advised of that determination.
In this instance it was undisputed that the assistantprofessor commenced his Article 78 action more than four months after receivingnotice that he had not been reappointed to his teaching position.
Significantly, the court said that the limitations perioddid not run from the date upon which the assistant professor's fixed-duration employment contractautomatically ended but rather commenced to run when he received notice of the“final determination” that he would not be reappointed to the college faculty.
Further, said the court, even had the faculty member Article78 action “been timely commenced, the record demonstrates that the [CollegePresident] substantially complied with the internal rules of Purchase College,State University of New York and the determination was not arbitrary andcapricious."
* N.B. A request to “reconsider” afinal and binding administrative determination does not toll the running of theStatute of Limitations [Lavin v Lawrence, 54 AD3d 412].
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06026.htm
Reinstatement following layoff focuses on tenure rights
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Reinstatement following layoff focuses on tenure rightsChauvel v. Nyquist, 55 AD2 76, affd., 43 NY2 48)
Does “greater system-wide service” control situationsinvolving layoff of teachers, or is it seniority in corresponding or similarpositions that determines which person is to be offered an open teachingposition first?
Where the performance of duties of the open position isunquestionably “similar” to those of the abolished positions, the teacherhaving the greater seniority in the performance area, not in the employingschool district itself, is to receive the appointment.
Standards for such re-employment are more narrow than thosedealing with layoff (Ward v. Nyquist, 43 NY2d 57) so as to prevent erosion ofthe tenure rights of the incumbents of abolished positions and means that theduties required to be performed in the vacant position must be similar to theduties performed by the person in his previous position before it wasabolished. A test was stated in Elkins, 14 Ed Dept Repts 193, to the effectthat if more than one-half of the functions to be performed by the incumbent ofthe new position are those which he performed in his old position, thepositions are similar.
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Reinstatement following layoff focuses on tenure rightsChauvel v. Nyquist, 55 AD2 76, affd., 43 NY2 48)
Does “greater system-wide service” control situationsinvolving layoff of teachers, or is it seniority in corresponding or similarpositions that determines which person is to be offered an open teachingposition first?
Where the performance of duties of the open position isunquestionably “similar” to those of the abolished positions, the teacherhaving the greater seniority in the performance area, not in the employingschool district itself, is to receive the appointment.
Standards for such re-employment are more narrow than thosedealing with layoff (Ward v. Nyquist, 43 NY2d 57) so as to prevent erosion ofthe tenure rights of the incumbents of abolished positions and means that theduties required to be performed in the vacant position must be similar to theduties performed by the person in his previous position before it wasabolished. A test was stated in Elkins, 14 Ed Dept Repts 193, to the effectthat if more than one-half of the functions to be performed by the incumbent ofthe new position are those which he performed in his old position, thepositions are similar.
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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli
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Selected reports and information published by NewYork State's Comptroller Thomas P. DiNapoli
DiNapoli: Tax Cap Reporting Made Easier
State Comptroller Thomas P. DiNapoli announced that the 2012–13 tax capreporting form has been enhanced to make it easier for local officials toaccurately calculate their tax levy limit.
After analyzing reporting errors from the first year of implementation, DiNapoli’sDivision of Local Government and School Accountability developed an improvedonline property tax cap reporting system to address the most problematic areasencountered by local officials.
DiNapoli: Town Deficit Caused By InaccurateBudgeting
Due to unreasonable budget estimates, the Town of Poughkeepsie was left with a$1.5 million deficit in its major fund balances at the end of 2010, accordingto an auditreleased by State Comptroller Thomas P. DiNapoli. The town has also failed torepay more than $3 million in inter–fund loans it made between different taxbases.
Comptroller DiNapoli Releases Municipal Audits
New York State Comptroller Thomas P. DiNapoli announced his office completedthe following audits:
EastchesterFire District;
OwascoFire Department;
MohawkFire District;
Townof Colonie;
Townof Hinsdale;
Townof Peru;
Townof Red House;
Townof Waterford; and,
Villageof Ballston Spa.
Comptroller DiNapoli Releases School Audits
New York State Comptroller Thomas P. DiNapoli announced his office completedthe audits of:
AchievementAcademy Charter School;
GreenIsland Union Free School District; and,
Madison–OneidaBOCES.
Selected reports and information published by NewYork State's Comptroller Thomas P. DiNapoli
DiNapoli: Tax Cap Reporting Made Easier
State Comptroller Thomas P. DiNapoli announced that the 2012–13 tax capreporting form has been enhanced to make it easier for local officials toaccurately calculate their tax levy limit.
After analyzing reporting errors from the first year of implementation, DiNapoli’sDivision of Local Government and School Accountability developed an improvedonline property tax cap reporting system to address the most problematic areasencountered by local officials.
DiNapoli: Town Deficit Caused By InaccurateBudgeting
Due to unreasonable budget estimates, the Town of Poughkeepsie was left with a$1.5 million deficit in its major fund balances at the end of 2010, accordingto an auditreleased by State Comptroller Thomas P. DiNapoli. The town has also failed torepay more than $3 million in inter–fund loans it made between different taxbases.
Comptroller DiNapoli Releases Municipal Audits
New York State Comptroller Thomas P. DiNapoli announced his office completedthe following audits:
EastchesterFire District;
OwascoFire Department;
MohawkFire District;
Townof Colonie;
Townof Hinsdale;
Townof Peru;
Townof Red House;
Townof Waterford; and,
Villageof Ballston Spa.
Comptroller DiNapoli Releases School Audits
New York State Comptroller Thomas P. DiNapoli announced his office completedthe audits of:
AchievementAcademy Charter School;
GreenIsland Union Free School District; and,
Madison–OneidaBOCES.
Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli
To contact us Click HERE
Selected reports and information published by NewYork State's Comptroller Thomas P. DiNapoli
DiNapoli Proposes Early Warning System ToIdentify Local Governments In Fiscal Stress
With a growing number of local governments facing significant fiscal stress,State Comptroller Thomas P. DiNapoli announced plans Monday to implement anearly warning monitoringsystem that would identify municipalities and school districts experiencingsigns of budgetary strain so that corrective actions can be taken before a fullfinancial crisis develops.
DiNapoli Invests $2.5 Million From StatePension Fund in Ithaca–Based Printing Company CognitiveTPG
New York State Comptroller Thomas P. DiNapoli announced Tuesday that DeltaPointCapital Management has acquired a majority stake in Ithaca–based CognitiveTPG,a supplier of point–of–sale transaction and barcode printers. The CommonRetirement Fund is an investor in DeltaPoint through the In–State PrivateEquity Program. Photos are available here.
Empire State Plaza Assigns New Director AfterAudit Reveals Elevator Safety Lapses
Elevators at the Empire State Plaza went unrepaired for months despite 32maintenance deficiencies, according to an auditreleased Thursday by State Comptroller Thomas P. DiNapoli. The audit promptedthe Office of General Services to assign a new director and deputy director ofplaza operations to properly oversee elevator maintenance.
DiNapoli: August Cash Report Shows ContinuedEconomic Uncertainty
Tax receipts through August 2012 were $147 million below projections and $204.3million below collections for the same period last year, reflecting continuedvolatile economic conditions, according to the AugustCash Report released last Wednesday by State Comptroller Thomas P.DiNapoli.
Comptroller DiNapoli Releases Municipal Audits
New York State Comptroller Thomas P. DiNapoli Tuesday announced his officecompleted the following audits:
Townof Evans;
Townof Fort Edward; and,
Townof Schodack.
Comptroller DiNapoli Releases School Audit
New York State Comptroller Thomas P. DiNapoli Tuesday announced his officecompleted the audit of the ArkCommunity Charter School.
Comptroller DiNapoli Releases Audits
New York State Comptroller Thomas P. DiNapoli last Tuesday announced his officecompleted the following audits:
Departmentof Transportation;
NewYork State Thruway Authority;
Departmentof Health; Officefor the Aging; and,
Officeof Parks, Recreation and Historic Preservation.
Selected reports and information published by NewYork State's Comptroller Thomas P. DiNapoli
DiNapoli Proposes Early Warning System ToIdentify Local Governments In Fiscal Stress
With a growing number of local governments facing significant fiscal stress,State Comptroller Thomas P. DiNapoli announced plans Monday to implement anearly warning monitoringsystem that would identify municipalities and school districts experiencingsigns of budgetary strain so that corrective actions can be taken before a fullfinancial crisis develops.
DiNapoli Invests $2.5 Million From StatePension Fund in Ithaca–Based Printing Company CognitiveTPG
New York State Comptroller Thomas P. DiNapoli announced Tuesday that DeltaPointCapital Management has acquired a majority stake in Ithaca–based CognitiveTPG,a supplier of point–of–sale transaction and barcode printers. The CommonRetirement Fund is an investor in DeltaPoint through the In–State PrivateEquity Program. Photos are available here.
Empire State Plaza Assigns New Director AfterAudit Reveals Elevator Safety Lapses
Elevators at the Empire State Plaza went unrepaired for months despite 32maintenance deficiencies, according to an auditreleased Thursday by State Comptroller Thomas P. DiNapoli. The audit promptedthe Office of General Services to assign a new director and deputy director ofplaza operations to properly oversee elevator maintenance.
DiNapoli: August Cash Report Shows ContinuedEconomic Uncertainty
Tax receipts through August 2012 were $147 million below projections and $204.3million below collections for the same period last year, reflecting continuedvolatile economic conditions, according to the AugustCash Report released last Wednesday by State Comptroller Thomas P.DiNapoli.
Comptroller DiNapoli Releases Municipal Audits
New York State Comptroller Thomas P. DiNapoli Tuesday announced his officecompleted the following audits:
Townof Evans;
Townof Fort Edward; and,
Townof Schodack.
Comptroller DiNapoli Releases School Audit
New York State Comptroller Thomas P. DiNapoli Tuesday announced his officecompleted the audit of the ArkCommunity Charter School.
Comptroller DiNapoli Releases Audits
New York State Comptroller Thomas P. DiNapoli last Tuesday announced his officecompleted the following audits:
Departmentof Transportation;
NewYork State Thruway Authority;
Departmentof Health; Officefor the Aging; and,
Officeof Parks, Recreation and Historic Preservation.
29 Eylül 2012 Cumartesi
An alleged ambiguity in the collective bargaining agreement concerning the applicability of a provision constitutes a matter of contract interpretation and is for the arbitrator to resolve
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An alleged ambiguity in the collective bargaining agreement concerning the applicability of a provision constitutes a matter of contract interpretation and is for the arbitrator to resolveBoard of Educ. of Yorktown Cent. Sch. Dist. v YorktownCongress of Teachers, 2012 NY Slip Op 06023, Appellate Division, SecondDepartment
Yorktown Central School District filed an Article 75petition seeking a permanent stay arbitration of a claim by a teacher forapproval of certain graduate credits for compensation pursuant to a collectivebargaining agreement. Supreme Court granted the school districts petition andthe Yorktown Congress of Teachers appealed.
The Appellate Division reversed the lower court’s ruling “onthe law” and directed that the parties proceed to arbitration.
The court noted that the relevant collective bargainingagreement included [1] an annex to the salary schedule providing for paymentsfor approved graduate credits and [2] a “four-step grievance* procedureculminating in binding arbitration.”
The Appellate Division explained that in determining whethera dispute between a public sector employer and employee organization on behalf of an employee is arbitrable,** a courtmust first determine whether there is a statutory, constitutional or publicpolicy prohibition against arbitration of the grievance. If it finds no suchprohibition against arbitration, the court must examine the parties' collectivebargaining agreement to determine "whether the parties in fact agreed toarbitrate the particular dispute."
Finding that arbitration of the instant dispute was notprohibited by public policy or statute, including those provisions of theEducation Law permitting any party aggrieved by a determination of a board ofeducation to appeal to the Commissioner of Education nor by the power of aschool board to manage the educational affairs of the school district, theAppellate Division found that there was a reasonable relationship between thesubject matter of the dispute and the general subject matter of the CBA – i.e.,a claim for approval of graduate credits for compensation and the generalsubject matter of the CBA.
Noting that “some uncertainty exists as to whether thesubject matter of the dispute is encompassed within the provision governingpayments for approved graduate credits or the exclusion from arbitration ofmatters involving the Board's discretion,” the Appellate Division said that anyalleged ambiguity in the CBA "regarding the coverage of any applicable provisionis . . . a matter of contract interpretation for the arbitrator toresolve."
Accordingly, the Appellate Division granted the YoungstownCongress of Teacher’s cross petition to compel arbitration.
* In this instance the CBA defined a "grievance" as "anydispute or claim by either party . . . arising out of or in connection withthis Agreement" other than matters that involved [a] the School Board's exercisingits discretion, [b] a nonapproval of tenure decision; and [c] matters where a review wasprescribed by law.
** Subject limited exceptions, as a general rule only the certified or recognized employee organization may demand arbitration of a grievance.
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06023.htm
An alleged ambiguity in the collective bargaining agreement concerning the applicability of a provision constitutes a matter of contract interpretation and is for the arbitrator to resolveBoard of Educ. of Yorktown Cent. Sch. Dist. v YorktownCongress of Teachers, 2012 NY Slip Op 06023, Appellate Division, SecondDepartment
Yorktown Central School District filed an Article 75petition seeking a permanent stay arbitration of a claim by a teacher forapproval of certain graduate credits for compensation pursuant to a collectivebargaining agreement. Supreme Court granted the school districts petition andthe Yorktown Congress of Teachers appealed.
The Appellate Division reversed the lower court’s ruling “onthe law” and directed that the parties proceed to arbitration.
The court noted that the relevant collective bargainingagreement included [1] an annex to the salary schedule providing for paymentsfor approved graduate credits and [2] a “four-step grievance* procedureculminating in binding arbitration.”
The Appellate Division explained that in determining whethera dispute between a public sector employer and employee organization on behalf of an employee is arbitrable,** a courtmust first determine whether there is a statutory, constitutional or publicpolicy prohibition against arbitration of the grievance. If it finds no suchprohibition against arbitration, the court must examine the parties' collectivebargaining agreement to determine "whether the parties in fact agreed toarbitrate the particular dispute."
Finding that arbitration of the instant dispute was notprohibited by public policy or statute, including those provisions of theEducation Law permitting any party aggrieved by a determination of a board ofeducation to appeal to the Commissioner of Education nor by the power of aschool board to manage the educational affairs of the school district, theAppellate Division found that there was a reasonable relationship between thesubject matter of the dispute and the general subject matter of the CBA – i.e.,a claim for approval of graduate credits for compensation and the generalsubject matter of the CBA.
Noting that “some uncertainty exists as to whether thesubject matter of the dispute is encompassed within the provision governingpayments for approved graduate credits or the exclusion from arbitration ofmatters involving the Board's discretion,” the Appellate Division said that anyalleged ambiguity in the CBA "regarding the coverage of any applicable provisionis . . . a matter of contract interpretation for the arbitrator toresolve."
Accordingly, the Appellate Division granted the YoungstownCongress of Teacher’s cross petition to compel arbitration.
* In this instance the CBA defined a "grievance" as "anydispute or claim by either party . . . arising out of or in connection withthis Agreement" other than matters that involved [a] the School Board's exercisingits discretion, [b] a nonapproval of tenure decision; and [c] matters where a review wasprescribed by law.
** Subject limited exceptions, as a general rule only the certified or recognized employee organization may demand arbitration of a grievance.
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06023.htm
Payroll deductions
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Payroll deductions
Westchester County Correction Officers Benevolent Association, 33 PERB 3025
Although a "letter ruling" by the InternalRevenue Service advised the employer that it had the discretion to withholdincome tax from the wages of individuals on workers' compensation leave orreceiving benefit pursuant to Section 207-c of the General Municipal Lawbi-weekly and reimburse the employee for such deductions annually or elect notto make such deductions, PERB ruled that it was an improper practice for theemployer to change its procedure from not making such deductions to making bi-weeklydeductions without first negotiating the change with the employee organizationeven where the claim for such benefits was controverted by the employer sincethe exercise of discretion is generally subject to a duty to bargain.
Payroll deductions
Westchester County Correction Officers Benevolent Association, 33 PERB 3025
Although a "letter ruling" by the InternalRevenue Service advised the employer that it had the discretion to withholdincome tax from the wages of individuals on workers' compensation leave orreceiving benefit pursuant to Section 207-c of the General Municipal Lawbi-weekly and reimburse the employee for such deductions annually or elect notto make such deductions, PERB ruled that it was an improper practice for theemployer to change its procedure from not making such deductions to making bi-weeklydeductions without first negotiating the change with the employee organizationeven where the claim for such benefits was controverted by the employer sincethe exercise of discretion is generally subject to a duty to bargain.
Employee exonerated of alleged off-duty misconduct
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Employee exonerated of alleged off-duty misconductNYC Department of Corrections v Gayle, OATH Index #105/12
OATH Administrative Law Judge John B. Spooner recommendeddismissal of a charge that a correction officer had caused more than $250 worthof damage to her former landlord’s property.
The landlord’s testimony that he saw the correction officer hittingthe bathroom walls with a sledgehammer was uncorroborated and contradicted inpart by evidence that the landlord himself had damaged the apartment.
The correction officer’s testimony that she had moved out ofthe apartment one month before the damage was incurred following alleged “improperactions by the landlord,” was corroborated by her sister’s testimony, date-stampedphotographs showing the apartment in disarray, and the landlord’s admissionthat he had piled bolts of fabric inside the correction officer’s apartment andremoved light bulbs because he was frustrated by her failure to pay rent andabrupt departure from the apartment.
The decision is posted on the Internet at:http://archive.citylaw.org/oath/12_Cases/12-1051.pdf
Employee exonerated of alleged off-duty misconductNYC Department of Corrections v Gayle, OATH Index #105/12
OATH Administrative Law Judge John B. Spooner recommendeddismissal of a charge that a correction officer had caused more than $250 worthof damage to her former landlord’s property.
The landlord’s testimony that he saw the correction officer hittingthe bathroom walls with a sledgehammer was uncorroborated and contradicted inpart by evidence that the landlord himself had damaged the apartment.
The correction officer’s testimony that she had moved out ofthe apartment one month before the damage was incurred following alleged “improperactions by the landlord,” was corroborated by her sister’s testimony, date-stampedphotographs showing the apartment in disarray, and the landlord’s admissionthat he had piled bolts of fabric inside the correction officer’s apartment andremoved light bulbs because he was frustrated by her failure to pay rent andabrupt departure from the apartment.
The decision is posted on the Internet at:http://archive.citylaw.org/oath/12_Cases/12-1051.pdf
Barring a former employee from property
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Barringa former employee from property
Toussaint v Local 100, TWU, CA2, U.S. App. LEXIS16257
May an employer prohibit an individual it has dismissed from entering itsproperty? The Second Circuit Court of Appeals ruled the employer may prohibitsuch an individual from entering its non-public areas.
A Transportation Workers Union representative had been dismissed from hisposition with the New York City Transit Authority [NYCTA]. NYCTA then banned therepresentative from the non-public areas of its property. The representative sued,contending that this action by NYCTA violated his First Amendment rights.
The Circuit Court affirmed a federal district court's dismissal of the Unionrepresentative’s petition. The lower court had determined that he "failedto show a likelihood of success on the merits" because:
1. He did not demonstrate that he was excludedfrom non-public areas because the Transit Authority's motivation was to impairthe exercise of his First Amendment freedoms or;
2. The Transit Authority's rule barringdischarged employees from non-public areas lacked a reasonable basis.
The representative also attempted to obtain a stay of arbitration, claimingthat NYCTA and Local 100 went forward with his arbitration "withoutallowing him to participate in selecting a neutral arbitrator to chair thearbitration panel." The Circuit Court of Appeals rejected thisrepresentation as moot "because the arbitration [had] proceeded toconclusion."
Toussaint v Local 100, TWU, CA2, U.S. App. LEXIS16257
May an employer prohibit an individual it has dismissed from entering itsproperty? The Second Circuit Court of Appeals ruled the employer may prohibitsuch an individual from entering its non-public areas.
A Transportation Workers Union representative had been dismissed from hisposition with the New York City Transit Authority [NYCTA]. NYCTA then banned therepresentative from the non-public areas of its property. The representative sued,contending that this action by NYCTA violated his First Amendment rights.
The Circuit Court affirmed a federal district court's dismissal of the Unionrepresentative’s petition. The lower court had determined that he "failedto show a likelihood of success on the merits" because:
1. He did not demonstrate that he was excludedfrom non-public areas because the Transit Authority's motivation was to impairthe exercise of his First Amendment freedoms or;
2. The Transit Authority's rule barringdischarged employees from non-public areas lacked a reasonable basis.
The representative also attempted to obtain a stay of arbitration, claimingthat NYCTA and Local 100 went forward with his arbitration "withoutallowing him to participate in selecting a neutral arbitrator to chair thearbitration panel." The Circuit Court of Appeals rejected thisrepresentation as moot "because the arbitration [had] proceeded toconclusion."
Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli
To contact us Click HERE
Selected reports and information published by NewYork State's Comptroller Thomas P. DiNapoli
DiNapoli: Tax Cap Reporting Made Easier
State Comptroller Thomas P. DiNapoli announced that the 2012–13 tax capreporting form has been enhanced to make it easier for local officials toaccurately calculate their tax levy limit.
After analyzing reporting errors from the first year of implementation, DiNapoli’sDivision of Local Government and School Accountability developed an improvedonline property tax cap reporting system to address the most problematic areasencountered by local officials.
DiNapoli: Town Deficit Caused By InaccurateBudgeting
Due to unreasonable budget estimates, the Town of Poughkeepsie was left with a$1.5 million deficit in its major fund balances at the end of 2010, accordingto an auditreleased by State Comptroller Thomas P. DiNapoli. The town has also failed torepay more than $3 million in inter–fund loans it made between different taxbases.
Comptroller DiNapoli Releases Municipal Audits
New York State Comptroller Thomas P. DiNapoli announced his office completedthe following audits:
EastchesterFire District;
OwascoFire Department;
MohawkFire District;
Townof Colonie;
Townof Hinsdale;
Townof Peru;
Townof Red House;
Townof Waterford; and,
Villageof Ballston Spa.
Comptroller DiNapoli Releases School Audits
New York State Comptroller Thomas P. DiNapoli announced his office completedthe audits of:
AchievementAcademy Charter School;
GreenIsland Union Free School District; and,
Madison–OneidaBOCES.
Selected reports and information published by NewYork State's Comptroller Thomas P. DiNapoli
DiNapoli: Tax Cap Reporting Made Easier
State Comptroller Thomas P. DiNapoli announced that the 2012–13 tax capreporting form has been enhanced to make it easier for local officials toaccurately calculate their tax levy limit.
After analyzing reporting errors from the first year of implementation, DiNapoli’sDivision of Local Government and School Accountability developed an improvedonline property tax cap reporting system to address the most problematic areasencountered by local officials.
DiNapoli: Town Deficit Caused By InaccurateBudgeting
Due to unreasonable budget estimates, the Town of Poughkeepsie was left with a$1.5 million deficit in its major fund balances at the end of 2010, accordingto an auditreleased by State Comptroller Thomas P. DiNapoli. The town has also failed torepay more than $3 million in inter–fund loans it made between different taxbases.
Comptroller DiNapoli Releases Municipal Audits
New York State Comptroller Thomas P. DiNapoli announced his office completedthe following audits:
EastchesterFire District;
OwascoFire Department;
MohawkFire District;
Townof Colonie;
Townof Hinsdale;
Townof Peru;
Townof Red House;
Townof Waterford; and,
Villageof Ballston Spa.
Comptroller DiNapoli Releases School Audits
New York State Comptroller Thomas P. DiNapoli announced his office completedthe audits of:
AchievementAcademy Charter School;
GreenIsland Union Free School District; and,
Madison–OneidaBOCES.
28 Eylül 2012 Cuma
Using hearsay evidence in a disciplinary hearing
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Using hearsay evidencein a disciplinary hearing
Saunders v City of New York, App. Div., First Dept., 273 A.D.2d 103, motionfor leave to appeal denied, 95 N.Y.2d 766
A New York City police officer was terminated from his position after beingfound guilty of having "assaulted and caused physical injuries” to twoindividuals.
The officer appealed, contending that the Commissioner's determination was notsupported by substantial evidence because it was based on hearsay. TheAppellate Division disagreed, holding that "[t]he hearsay statements ofthe complainants were sufficiently probative to constitute substantial evidence."
According to the decision "[h]earsay may constitute substantial evidencewhere, as here, it is sufficiently reliable and probative on the issues to bedetermined."
This, in turn, depends on the credibility of the witnesses.The issue of the credibility of the witnesses at the officer's departmentaldisciplinary hearing, said the court, "was a matter to be assessed by theDeputy Commissioner who presided at the trial.”
Accordingly, said the court, determinations concerningthe credibility of witnesses "is largely beyond our power of review."
Using hearsay evidencein a disciplinary hearing
Saunders v City of New York, App. Div., First Dept., 273 A.D.2d 103, motionfor leave to appeal denied, 95 N.Y.2d 766
A New York City police officer was terminated from his position after beingfound guilty of having "assaulted and caused physical injuries” to twoindividuals.
The officer appealed, contending that the Commissioner's determination was notsupported by substantial evidence because it was based on hearsay. TheAppellate Division disagreed, holding that "[t]he hearsay statements ofthe complainants were sufficiently probative to constitute substantial evidence."
According to the decision "[h]earsay may constitute substantial evidencewhere, as here, it is sufficiently reliable and probative on the issues to bedetermined."
This, in turn, depends on the credibility of the witnesses.The issue of the credibility of the witnesses at the officer's departmentaldisciplinary hearing, said the court, "was a matter to be assessed by theDeputy Commissioner who presided at the trial.”
Accordingly, said the court, determinations concerningthe credibility of witnesses "is largely beyond our power of review."
A village that has a police department must have a chief of police
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A village that has a police department must have a chief of police
Citing Village Law §§8-800, 8-800(1); Chapters 810 and 840 of the Laws of 1985; Town Law §150; and CivilService Law §§58, 58(1-c), the Attorney General advised the Village Attorney,Village of Skaneateles, that “A village that has a police department must havea chief of police, unless the grandfather clause applies.” [Informal Opinionsof the Attorney General 2012-08. This Informal Opinion is posted on theInternet at http://www.ag.ny.gov/sites/default/files/opinion/2012-8%20pw.pdf]
Citing Village Law §§8-800, 8-800(1); Chapters 810 and 840 of the Laws of 1985; Town Law §150; and CivilService Law §§58, 58(1-c), the Attorney General advised the Village Attorney,Village of Skaneateles, that “A village that has a police department must havea chief of police, unless the grandfather clause applies.” [Informal Opinionsof the Attorney General 2012-08. This Informal Opinion is posted on theInternet at http://www.ag.ny.gov/sites/default/files/opinion/2012-8%20pw.pdf]
Employee suspended without pay after refusing to comply with superiors order
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Employee suspended without pay after refusing to comply withsuperiors order Office of the Comptroller of the City of New York v Martin,OATH Index #1680/12
A employee of the New York Office of the Comptroller was allegedto have refused to remove her Bluetoothearpiece when ordered to do so and to have responded disrespectfully to hersupervisor.
OATH Administrative Law Judge Alessandra F. Zorgniottisustained the charges and after considering that the employee had already beendisciplined twice for refusing to remove her Bluetooth earpiece, recommended a15 work-day suspension without pay.
The ALJ’ recommendation was adopted by the Office of the NYCComptroller.
The decision is posted on the Internet at:http://archive.citylaw.org/oath/12_Cases/12-1680.pdf
Employee suspended without pay after refusing to comply withsuperiors order Office of the Comptroller of the City of New York v Martin,OATH Index #1680/12
A employee of the New York Office of the Comptroller was allegedto have refused to remove her Bluetoothearpiece when ordered to do so and to have responded disrespectfully to hersupervisor.
OATH Administrative Law Judge Alessandra F. Zorgniottisustained the charges and after considering that the employee had already beendisciplined twice for refusing to remove her Bluetooth earpiece, recommended a15 work-day suspension without pay.
The ALJ’ recommendation was adopted by the Office of the NYCComptroller.
The decision is posted on the Internet at:http://archive.citylaw.org/oath/12_Cases/12-1680.pdf
Trial court may not substitute its judgment for that of the arbitrator when the record supports the arbitrator’s ruling
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Trial court may not substitute its judgment for that ofthe arbitrator when the record supports the arbitrator’s ruling
Supreme Court, New York County, vacated, in part, an arbitrator’s finding that a tenured teacher guilty of disciplinary charges alleging sexual misconduct anddismissed certain specifications, vacated the penalty imposed by thearbitrator -- termination of the teacher's employment, and remanding theproceeding for a new hearing before a new arbitrator to determine if the teacher was guilty of the surviving allegations and for a redetermination of the penalty to be imposed in the event thenew arbitrator found the teacher guilty of one or more of the surviving disciplinary chargesand specifications.
The Appellate Division(1) reinstated the initial arbitrator’s findingof sexual misconduct and (2) reinstated the penalty imposed by the arbitrator, termination.
The court said that judicial review of the arbitrator’saward in this instance is limited to the grounds set out in CPLR §7511(b)1* as required by §3020-a(5) of the Education Law.
The court explained that where, as here, “the arbitration iscompulsory,” the excess of power standard under CPLR §7511(b) includes review of"whether the award is supported by evidence or other basis in reason, asmay be appropriate, and appearing in the record." Thus, the"determination must be in accord with due process and supported byadequate evidence, and must also be rational and satisfy the arbitrary andcapricious standards of CPLR Article 78."
The Appellate Division said there was adequate evidence to support thearbitrator's conclusion that teacher committed sexual misconduct by performingan "action that could reasonably be interpreted as soliciting a sexualrelationship" within the meaning of the relevant provisions in the collective bargaining agreement.By finding to the contrary, the Appellate Division said that Supreme Court“impermissibly substituted its own judgment for that of the arbitrator” bycrediting the teacher’s testimony that had been rejected by the arbitrator.
In light of the evidence, the Appellate Division said thatthe penalty of termination, notwithstanding teacher's “prior lack ofdisciplinary history,” did not shock its sense of fairness.
* §7511 of the Civil PracticeLaw and Rules provides for “Vacating or modifying” an arbitration award. Withrespect to “Grounds for Vacating,” §7511 (b)1 provides for the vacation of anarbitration award in the event the court finds that the rights of the partychallenging the award were prejudiced by:
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06255.htm
Trial court may not substitute its judgment for that ofthe arbitrator when the record supports the arbitrator’s ruling
Supreme Court, New York County, vacated, in part, an arbitrator’s finding that a tenured teacher guilty of disciplinary charges alleging sexual misconduct anddismissed certain specifications, vacated the penalty imposed by thearbitrator -- termination of the teacher's employment, and remanding theproceeding for a new hearing before a new arbitrator to determine if the teacher was guilty of the surviving allegations and for a redetermination of the penalty to be imposed in the event thenew arbitrator found the teacher guilty of one or more of the surviving disciplinary chargesand specifications.
The Appellate Division(1) reinstated the initial arbitrator’s findingof sexual misconduct and (2) reinstated the penalty imposed by the arbitrator, termination.
The court said that judicial review of the arbitrator’saward in this instance is limited to the grounds set out in CPLR §7511(b)1* as required by §3020-a(5) of the Education Law.
The court explained that where, as here, “the arbitration iscompulsory,” the excess of power standard under CPLR §7511(b) includes review of"whether the award is supported by evidence or other basis in reason, asmay be appropriate, and appearing in the record." Thus, the"determination must be in accord with due process and supported byadequate evidence, and must also be rational and satisfy the arbitrary andcapricious standards of CPLR Article 78."
The Appellate Division said there was adequate evidence to support thearbitrator's conclusion that teacher committed sexual misconduct by performingan "action that could reasonably be interpreted as soliciting a sexualrelationship" within the meaning of the relevant provisions in the collective bargaining agreement.By finding to the contrary, the Appellate Division said that Supreme Court“impermissibly substituted its own judgment for that of the arbitrator” bycrediting the teacher’s testimony that had been rejected by the arbitrator.
In light of the evidence, the Appellate Division said thatthe penalty of termination, notwithstanding teacher's “prior lack ofdisciplinary history,” did not shock its sense of fairness.
* §7511 of the Civil PracticeLaw and Rules provides for “Vacating or modifying” an arbitration award. Withrespect to “Grounds for Vacating,” §7511 (b)1 provides for the vacation of anarbitration award in the event the court finds that the rights of the partychallenging the award were prejudiced by:
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06255.htm
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.
27 Eylül 2012 Perşembe
School district did not violate alleged whistleblower’s First Amendment free speech rights
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School district did not violate alleged whistleblower’sFirst Amendment free speech rightsRoss v The Katonah-Lewisboro Union Free School District,USCA, 2nd Circuit, Docket No. 10-5275-cv
The U.S. Circuit Court of Appeals, Second Circuit, ruled that a former schooldistrict employee’s First Amendment right to free speech was not violatedbecause her speech was uttered in the context of her official duties in contrast tospeech uttered in her personal capacity.
In the words of the court: “because Ross was speakingpursuant to her official duties and not as a private citizen, her speech wasnot protected by the First Amendment.”
The Circuit Court explained: “In the First Amendmentcontext, ‘the State has interests as an employer in regulating the speech ofits employees that differ significantly from those it possesses in connectionwith regulation of the speech of the citizenry in general,’" citing Pickering v.Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563. Speech by a publicemployee, said the court, is protected by the First Amendment only when the employee is speaking“as a citizen . . . on a matter of public concern.”
In Garcetti v. Ceballos, 547 U.S. 410, the Supreme Court held that “when public employees make statements pursuantto their official duties, the employees are not speaking as citizens for FirstAmendment purposes, and the Constitution does not insulate their communicationsfrom employer discipline.”
The individual had contended that she had been wrongfullyterminated because she had exercised her First Amendment right to free speechin reporting alleged financial misfeasance to the school superintendent and theschool board.
The decision is posted on the Internet at:http://www.ca2.uscourts.gov/decisions/isysquery/d60e79aa-6471-44b9-b831-70c72e11909d/1/doc/10-5275_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d60e79aa-6471-44b9-b831-70c72e11909d/1/hilite/
School district did not violate alleged whistleblower’sFirst Amendment free speech rightsRoss v The Katonah-Lewisboro Union Free School District,USCA, 2nd Circuit, Docket No. 10-5275-cv
The U.S. Circuit Court of Appeals, Second Circuit, ruled that a former schooldistrict employee’s First Amendment right to free speech was not violatedbecause her speech was uttered in the context of her official duties in contrast tospeech uttered in her personal capacity.
In the words of the court: “because Ross was speakingpursuant to her official duties and not as a private citizen, her speech wasnot protected by the First Amendment.”
The Circuit Court explained: “In the First Amendmentcontext, ‘the State has interests as an employer in regulating the speech ofits employees that differ significantly from those it possesses in connectionwith regulation of the speech of the citizenry in general,’" citing Pickering v.Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563. Speech by a publicemployee, said the court, is protected by the First Amendment only when the employee is speaking“as a citizen . . . on a matter of public concern.”
In Garcetti v. Ceballos, 547 U.S. 410, the Supreme Court held that “when public employees make statements pursuantto their official duties, the employees are not speaking as citizens for FirstAmendment purposes, and the Constitution does not insulate their communicationsfrom employer discipline.”
The individual had contended that she had been wrongfullyterminated because she had exercised her First Amendment right to free speechin reporting alleged financial misfeasance to the school superintendent and theschool board.
The decision is posted on the Internet at:http://www.ca2.uscourts.gov/decisions/isysquery/d60e79aa-6471-44b9-b831-70c72e11909d/1/doc/10-5275_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d60e79aa-6471-44b9-b831-70c72e11909d/1/hilite/
Entering a plea of Nolo Contendere in an administrative disciplinary action
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Entering a plea of NoloContendere in an administrativedisciplinary action
Oneof the issues in the Appeal of T.B. concerned the student’s attorney entering aplea of “no contest” or nolo contendere* in response to certain allegations ofmisconduct filed against the student by the school district.
Although New York State does not provided for the accused in a criminal proceeding to advancea nolo contendere plea [People v. Daiboch, 265 NY 125], as the courtnoted in Kasckarow v Board of Examiners, [33 Misc 3d 1028; appeal pending, Second Department, 2011-11569],“the fact that a defendant in a criminal action does not technically admitguilt in a nolo contendere plea has not prevented New York fromrecognizing that a nolo contendere plea from another jurisdictionconstitutes a conviction for the purposed of sentencing a defendant as a secondfelony offender.”
Further, New York recognizes so-called “Alford pleas” (NorthCarolina v. Alford, 400 U.S. 25), which are similar to nolo contenderepleas in that the Court of Appeals has recognized that, from the New YorkState's perspective, an Alford plea is no different from any other guilty plea,and may be used for the same purposes as any other conviction.**
New York courts have occasionally addressed a plea nolocontendere or “no contest” in administrative actions. For example, in Dowerv. Poston, 76 Misc.2d 72, such a plea was a factor in resolving thedisqualification of an individual for appointment to a position in thecompetitive class.
Dower had entered a plea of nolo contendere to onecount of the indictment found against him in which he was charged conspiracy todefraud the United States. Sentenced to imprisonment, his sentence toimprisonment was suspended and he was placed on probation for a period of threeyears. When Dower challenged hisdisqualification for appointment to the position pursuant to §50.4(d) of theCivil Service Law based on his having been “convicted of a crime,” SupremeCourt ruled that “It is clear … that [Dower] in his application incorrectly andimproperly stated that he had never been convicted of an offense despite theannouncement for the position indicated that “conviction of a felony will bar,and conviction of a misdemeanor may bar examination and appointment”.Accordingly, said the court, his disqualification for appointment to theposition by the Civil Service Commission was a proper exercise of discretionunder the statute.
The Commissioner of Education has considered the impact ofpleas of “no contest” in a number of student disciplinary actions.
With respect to the appeal of T.B., T.B.’s then-counsel toldthe hearing officer that the school district had agreed to drop three of the 4charges filed against the student and would only pursue one of the charges,“Charge 3.” T.B.’s counsel then submitted a plea of “no contest” on thestudent’s behalf.
The hearing officer said that as the student was “pleadingno contest, as Hearing Officer, then I just will find him guilty of just theone charge.” T.B.’s counsel disagreed with the guilty determination,stating that the student was neither “admitting or denying [the charge]”, just “notcontesting the charge.” No witnesses or additional documents wereintroduced or entered into the record by either party and, after learning thatthe student had no prior disciplinary history, the hearing officer “referredthe matter to the superintendent for a determination of any additionalpenalties.”
Among the issues raised by T.B. in this appeal to theCommissioner of Education was the claim that Charge 3 was “too vague andinsufficient to apprise [the student] of the activities giving rise to thehearing” and that the school district “produced no evidence of [the student’s]guilt and that the ‘no contest’ plea is not an admission and is insufficientproof of guilt.”
With respect to these issues, the Commissioner ruled:
1. The charges in a student disciplinary proceeding needonly be “sufficiently specific to advise the student and his counsel of theactivities or incidents which have given rise to the proceeding and which willform the basis for the hearing;”
2. Where a student admits the charged conduct, the admissionis sufficient proof of guilt; and
3. The record reveals that, although represented by counsel,T.B. failed to raise the issue of “vagueness” before the hearing officer at thehearing and, in fact, agreed to enter a plea with no such objection.
Accordingly, the Commissioner held that as T.B. “failed atthe hearing to dispute the specificity of the remaining charge and also failedto enter [the student’s] written statements into the record, [as] neither theissue of vagueness nor those documents were properly part of the record beforethe board … they may not now be considered as part of this appeal.
As to T.B.’s argument that the “no contest” plea submittedon the student’s behalf was neither sufficient proof nor an admission of thestudent’s guilt, and claimed that the hearing officer erred in finding thestudent guilty, the Commissioner disagreed, noting that although “New YorkState Criminal Procedure Law does not provide for a ‘no contest’ plea.” … [n]evertheless, the courts have recognized that an individual’s ‘no contest’plea amounts to ‘an admission of the facts as charged,” citing Kufs v State ofNew York Liquor Authority, 637 NYS2d 846 at 847.
In Kufs, said the Commissioner, the court ruled that “[b]yentering [his] ‘no contest’ plea, petitioner waived [his] right to a review ofthe facts upon which the punishment was imposed.”
Finding that there was nothing in the record, nor did T.B.argue that the student’s “no contest” plea was not entered in a voluntary,knowing and intelligent manner, the Commissioner said that there was no reasonto annul the hearing officer’s determination.
* NoloContendere, is Latin for "I will not contest it." It appears thatthe only New York statute in which the term is referenced is found in the NewYork Public Health Law. §4655.2.h.(iv)(A) of the Public Health Law provides, in pertinent part,“... has been convicted of a crime or pleaded nolo contendre[sic] to a felony charge, or been held liable or enjoined in a civil action byfinal judgment if the criminal or civil action involved fraud, embezzlement,fraudulent conversion, or misappropriation of property [emphasis supplied].”
** Matter of Silmon, 95 N.Y.2dat 475,
Thedecision in the Appeal of T.B. is posted on the Internet at http://www.counsel.nysed.gov/Decisions/volume52/d16385.html
N.B. A LawBlog focusing on NoloContendere is posted on the Internet at:
Entering a plea of NoloContendere in an administrativedisciplinary action
Oneof the issues in the Appeal of T.B. concerned the student’s attorney entering aplea of “no contest” or nolo contendere* in response to certain allegations ofmisconduct filed against the student by the school district.
Although New York State does not provided for the accused in a criminal proceeding to advancea nolo contendere plea [People v. Daiboch, 265 NY 125], as the courtnoted in Kasckarow v Board of Examiners, [33 Misc 3d 1028; appeal pending, Second Department, 2011-11569],“the fact that a defendant in a criminal action does not technically admitguilt in a nolo contendere plea has not prevented New York fromrecognizing that a nolo contendere plea from another jurisdictionconstitutes a conviction for the purposed of sentencing a defendant as a secondfelony offender.”
Further, New York recognizes so-called “Alford pleas” (NorthCarolina v. Alford, 400 U.S. 25), which are similar to nolo contenderepleas in that the Court of Appeals has recognized that, from the New YorkState's perspective, an Alford plea is no different from any other guilty plea,and may be used for the same purposes as any other conviction.**
New York courts have occasionally addressed a plea nolocontendere or “no contest” in administrative actions. For example, in Dowerv. Poston, 76 Misc.2d 72, such a plea was a factor in resolving thedisqualification of an individual for appointment to a position in thecompetitive class.
Dower had entered a plea of nolo contendere to onecount of the indictment found against him in which he was charged conspiracy todefraud the United States. Sentenced to imprisonment, his sentence toimprisonment was suspended and he was placed on probation for a period of threeyears. When Dower challenged hisdisqualification for appointment to the position pursuant to §50.4(d) of theCivil Service Law based on his having been “convicted of a crime,” SupremeCourt ruled that “It is clear … that [Dower] in his application incorrectly andimproperly stated that he had never been convicted of an offense despite theannouncement for the position indicated that “conviction of a felony will bar,and conviction of a misdemeanor may bar examination and appointment”.Accordingly, said the court, his disqualification for appointment to theposition by the Civil Service Commission was a proper exercise of discretionunder the statute.
The Commissioner of Education has considered the impact ofpleas of “no contest” in a number of student disciplinary actions.
With respect to the appeal of T.B., T.B.’s then-counsel toldthe hearing officer that the school district had agreed to drop three of the 4charges filed against the student and would only pursue one of the charges,“Charge 3.” T.B.’s counsel then submitted a plea of “no contest” on thestudent’s behalf.
The hearing officer said that as the student was “pleadingno contest, as Hearing Officer, then I just will find him guilty of just theone charge.” T.B.’s counsel disagreed with the guilty determination,stating that the student was neither “admitting or denying [the charge]”, just “notcontesting the charge.” No witnesses or additional documents wereintroduced or entered into the record by either party and, after learning thatthe student had no prior disciplinary history, the hearing officer “referredthe matter to the superintendent for a determination of any additionalpenalties.”
Among the issues raised by T.B. in this appeal to theCommissioner of Education was the claim that Charge 3 was “too vague andinsufficient to apprise [the student] of the activities giving rise to thehearing” and that the school district “produced no evidence of [the student’s]guilt and that the ‘no contest’ plea is not an admission and is insufficientproof of guilt.”
With respect to these issues, the Commissioner ruled:
1. The charges in a student disciplinary proceeding needonly be “sufficiently specific to advise the student and his counsel of theactivities or incidents which have given rise to the proceeding and which willform the basis for the hearing;”
2. Where a student admits the charged conduct, the admissionis sufficient proof of guilt; and
3. The record reveals that, although represented by counsel,T.B. failed to raise the issue of “vagueness” before the hearing officer at thehearing and, in fact, agreed to enter a plea with no such objection.
Accordingly, the Commissioner held that as T.B. “failed atthe hearing to dispute the specificity of the remaining charge and also failedto enter [the student’s] written statements into the record, [as] neither theissue of vagueness nor those documents were properly part of the record beforethe board … they may not now be considered as part of this appeal.
As to T.B.’s argument that the “no contest” plea submittedon the student’s behalf was neither sufficient proof nor an admission of thestudent’s guilt, and claimed that the hearing officer erred in finding thestudent guilty, the Commissioner disagreed, noting that although “New YorkState Criminal Procedure Law does not provide for a ‘no contest’ plea.” … [n]evertheless, the courts have recognized that an individual’s ‘no contest’plea amounts to ‘an admission of the facts as charged,” citing Kufs v State ofNew York Liquor Authority, 637 NYS2d 846 at 847.
In Kufs, said the Commissioner, the court ruled that “[b]yentering [his] ‘no contest’ plea, petitioner waived [his] right to a review ofthe facts upon which the punishment was imposed.”
Finding that there was nothing in the record, nor did T.B.argue that the student’s “no contest” plea was not entered in a voluntary,knowing and intelligent manner, the Commissioner said that there was no reasonto annul the hearing officer’s determination.
| Other decisions in which the Commissioner considered a plea of “no contest” include: |
| Decision No. 16,101 [http://www.counsel.nysed.gov/Decisions/volume50/d16101.htm]; |
| Decision No. 15,841 [http://www.counsel.nysed.gov/Decisions/volume48/d15841.htm];Decision No. 15,122 [http://www.counsel.nysed.gov/Decisions/volume44/d15122.htm];Decision No. 14,529 [http://www.counsel.nysed.gov/Decisions/volume40/d14529.htm];Decision No. 14,305 [http://www.counsel.nysed.gov/Decisions/volume39/d14305.htm]; andDecision No. 14,217 [http://www.counsel.nysed.gov/Decisions/volume39/d14217.htm] |
** Matter of Silmon, 95 N.Y.2dat 475,
Thedecision in the Appeal of T.B. is posted on the Internet at http://www.counsel.nysed.gov/Decisions/volume52/d16385.html
N.B. A LawBlog focusing on NoloContendere is posted on the Internet at:
Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli
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Selected reports and information published by NewYork State's Comptroller Thomas P. DiNapoli
DiNapoli: Tax Cap Reporting Made Easier
State Comptroller Thomas P. DiNapoli announced that the 2012–13 tax capreporting form has been enhanced to make it easier for local officials toaccurately calculate their tax levy limit.
After analyzing reporting errors from the first year of implementation, DiNapoli’sDivision of Local Government and School Accountability developed an improvedonline property tax cap reporting system to address the most problematic areasencountered by local officials.
DiNapoli: Town Deficit Caused By InaccurateBudgeting
Due to unreasonable budget estimates, the Town of Poughkeepsie was left with a$1.5 million deficit in its major fund balances at the end of 2010, accordingto an auditreleased by State Comptroller Thomas P. DiNapoli. The town has also failed torepay more than $3 million in inter–fund loans it made between different taxbases.
Comptroller DiNapoli Releases Municipal Audits
New York State Comptroller Thomas P. DiNapoli announced his office completedthe following audits:
EastchesterFire District;
OwascoFire Department;
MohawkFire District;
Townof Colonie;
Townof Hinsdale;
Townof Peru;
Townof Red House;
Townof Waterford; and,
Villageof Ballston Spa.
Comptroller DiNapoli Releases School Audits
New York State Comptroller Thomas P. DiNapoli announced his office completedthe audits of:
AchievementAcademy Charter School;
GreenIsland Union Free School District; and,
Madison–OneidaBOCES.
Selected reports and information published by NewYork State's Comptroller Thomas P. DiNapoli
DiNapoli: Tax Cap Reporting Made Easier
State Comptroller Thomas P. DiNapoli announced that the 2012–13 tax capreporting form has been enhanced to make it easier for local officials toaccurately calculate their tax levy limit.
After analyzing reporting errors from the first year of implementation, DiNapoli’sDivision of Local Government and School Accountability developed an improvedonline property tax cap reporting system to address the most problematic areasencountered by local officials.
DiNapoli: Town Deficit Caused By InaccurateBudgeting
Due to unreasonable budget estimates, the Town of Poughkeepsie was left with a$1.5 million deficit in its major fund balances at the end of 2010, accordingto an auditreleased by State Comptroller Thomas P. DiNapoli. The town has also failed torepay more than $3 million in inter–fund loans it made between different taxbases.
Comptroller DiNapoli Releases Municipal Audits
New York State Comptroller Thomas P. DiNapoli announced his office completedthe following audits:
EastchesterFire District;
OwascoFire Department;
MohawkFire District;
Townof Colonie;
Townof Hinsdale;
Townof Peru;
Townof Red House;
Townof Waterford; and,
Villageof Ballston Spa.
Comptroller DiNapoli Releases School Audits
New York State Comptroller Thomas P. DiNapoli announced his office completedthe audits of:
AchievementAcademy Charter School;
GreenIsland Union Free School District; and,
Madison–OneidaBOCES.
Not all doctor visits constitute “medical treatment” for the purposes of the FMLA
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Not all doctor visits constitute “medicaltreatment” for the purposes of the FMLAJones v. C & D Technologies, Inc., USCA, 7th Circuit, Docket No.11-3400.
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/ Copyright © 2012. All rightsreserved by Carl C. Bosland, Esq. Reproducedwith permission. Mr. Bosland is the author of A Federal Sector Guide to theFamily and Medical Leave Act & Related Litigation.
Jones had an approved FMLA-coveredserious health condition requiring periodic treatment by his physician. He asked for and was approved FMLA leave for an afternoon appointment toreceive medical treatment by one of his physicians. Although he wasscheduled to work the morning, Jones did not show up to work. WhetherJones timely called in his morning absence was in dispute. Instead ofworking, Jones visited another of his physicians. During the unscheduledmorning visit, Jones ensured that his physician forwarded his medicalrecords for his afternoon medical appointment. As a result of a shortconversation in the lobby, Jones also secured a prescription refill notefrom his doctor during his impromptu morning visit. Jones was neverexamined or evaluated during the morning visit with his doctor. Becausehe missed working his morning shift, Jones was terminated pursuant to theCompany's attendance policy.
Jones sued alleging that his termination interfered with hisFMLA rights. Specifically, Jones argued that he received FMLA-covered"medical treatment" during his morning doctor visit, as evidenced bythe prescription refill note. The Company argued that Jones' morningvisit was not "medical treatment" within the meaning of theFMLA.
An employee is entitled to FMLA leave if she suffers from a"serious health condition" that renders the employee unable toperform the functions of the employee's position. 29 USC2612(a)(1)(D). Under the FMLA, an employee who must beabsent from work to receive medical treatment for a serious health condition isconsidered "unable to perform the functions of the employee'sposition." 29 CFR 825.123(a)(emphasis added). The parties donot dispute that Jones had an FMLA-covered serious health condition. Instead, the case focused on whether Jones' impromptu morning visitwith his physician constituted "necessary medicaltreatment."
Many chronic conditions require a course of prescriptionmedication, but the FMLA requires something more for an employee to becomeentitled to leave -- inability to perform her job functions. A course ofprescription medication and an inability to perform a job are not mutuallyexclusive.
Relying on its previous decision in Darst v.Interstate Brands Corp., 512 F.3d 903, 911-12 (7th Cir. 2008), the Courtdetermined that treatment "includes examinations to determine if aserious health condition exists and evaluation ofthe condition," but not actions such as calling to make anappointment or scheduling substance-abuse rehabilitation." Applyingthat standard, the Court concluded that Jones did not receive treatmentpreventing him from working that morning by visiting his doctor to ensurehis referral to another lab was in order. The Court also found thatmerely picking up a prescription refill note did not, under thecircumstances, constitute FMLA-protected treatment. The Courtobserved:
Although we can envision a scenario where obtaining aprescription note in connection with a physician's examination might constitutetreatment, this case does not approach that hypothetical. Here, Dr. Lubaknever evaluated or examined Jones, and Jones even conceded in a deposition thathe was never "physically examined" that morning. Jones arrivedat Dr. Lubak's clinic unannounced and appeared only to briefly speak with hisphysician in the office lobby. The entirety of Jones's interaction with Dr.Lubak consisted of the physician's acquiescence to refill a prescription. There is simply no evidence that Jones was examined, and therefore treated,that morning.
Mr.Bosland Comments: The decision of the Seventh Circuit iswell reasoned. To be covered by the FMLA, an absence toreceive "medical treatment" under 825.123(a) requires,for the Seventh Circuit, the visit be "necessary" and aphysical examination, which the Court equates with"treatment." Jones' unscheduled, non-emergent morning doctorvisit was not medically required. Moreover, checking to ensurethat medical paperwork was forwarded to a second doctor and securinga prescription refill after a brief lobby conversation with his physician, didnot impress the Court as rising to the level of an "examination" and,therefore, treatment for purposes of the protections of the FMLA. It willbe interesting to see if other courts following the lead of the SeventhCircuit.
The decision is posted on the Internet at: http://www.ca7.uscourts.gov/tmp/LV0CM205.pdf
Not all doctor visits constitute “medicaltreatment” for the purposes of the FMLAJones v. C & D Technologies, Inc., USCA, 7th Circuit, Docket No.11-3400.
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/ Copyright © 2012. All rightsreserved by Carl C. Bosland, Esq. Reproducedwith permission. Mr. Bosland is the author of A Federal Sector Guide to theFamily and Medical Leave Act & Related Litigation.
Jones had an approved FMLA-coveredserious health condition requiring periodic treatment by his physician. He asked for and was approved FMLA leave for an afternoon appointment toreceive medical treatment by one of his physicians. Although he wasscheduled to work the morning, Jones did not show up to work. WhetherJones timely called in his morning absence was in dispute. Instead ofworking, Jones visited another of his physicians. During the unscheduledmorning visit, Jones ensured that his physician forwarded his medicalrecords for his afternoon medical appointment. As a result of a shortconversation in the lobby, Jones also secured a prescription refill notefrom his doctor during his impromptu morning visit. Jones was neverexamined or evaluated during the morning visit with his doctor. Becausehe missed working his morning shift, Jones was terminated pursuant to theCompany's attendance policy.
Jones sued alleging that his termination interfered with hisFMLA rights. Specifically, Jones argued that he received FMLA-covered"medical treatment" during his morning doctor visit, as evidenced bythe prescription refill note. The Company argued that Jones' morningvisit was not "medical treatment" within the meaning of theFMLA.
An employee is entitled to FMLA leave if she suffers from a"serious health condition" that renders the employee unable toperform the functions of the employee's position. 29 USC2612(a)(1)(D). Under the FMLA, an employee who must beabsent from work to receive medical treatment for a serious health condition isconsidered "unable to perform the functions of the employee'sposition." 29 CFR 825.123(a)(emphasis added). The parties donot dispute that Jones had an FMLA-covered serious health condition. Instead, the case focused on whether Jones' impromptu morning visitwith his physician constituted "necessary medicaltreatment."
Many chronic conditions require a course of prescriptionmedication, but the FMLA requires something more for an employee to becomeentitled to leave -- inability to perform her job functions. A course ofprescription medication and an inability to perform a job are not mutuallyexclusive.
Relying on its previous decision in Darst v.Interstate Brands Corp., 512 F.3d 903, 911-12 (7th Cir. 2008), the Courtdetermined that treatment "includes examinations to determine if aserious health condition exists and evaluation ofthe condition," but not actions such as calling to make anappointment or scheduling substance-abuse rehabilitation." Applyingthat standard, the Court concluded that Jones did not receive treatmentpreventing him from working that morning by visiting his doctor to ensurehis referral to another lab was in order. The Court also found thatmerely picking up a prescription refill note did not, under thecircumstances, constitute FMLA-protected treatment. The Courtobserved:
Although we can envision a scenario where obtaining aprescription note in connection with a physician's examination might constitutetreatment, this case does not approach that hypothetical. Here, Dr. Lubaknever evaluated or examined Jones, and Jones even conceded in a deposition thathe was never "physically examined" that morning. Jones arrivedat Dr. Lubak's clinic unannounced and appeared only to briefly speak with hisphysician in the office lobby. The entirety of Jones's interaction with Dr.Lubak consisted of the physician's acquiescence to refill a prescription. There is simply no evidence that Jones was examined, and therefore treated,that morning.
Mr.Bosland Comments: The decision of the Seventh Circuit iswell reasoned. To be covered by the FMLA, an absence toreceive "medical treatment" under 825.123(a) requires,for the Seventh Circuit, the visit be "necessary" and aphysical examination, which the Court equates with"treatment." Jones' unscheduled, non-emergent morning doctorvisit was not medically required. Moreover, checking to ensurethat medical paperwork was forwarded to a second doctor and securinga prescription refill after a brief lobby conversation with his physician, didnot impress the Court as rising to the level of an "examination" and,therefore, treatment for purposes of the protections of the FMLA. It willbe interesting to see if other courts following the lead of the SeventhCircuit.
The decision is posted on the Internet at: http://www.ca7.uscourts.gov/tmp/LV0CM205.pdf
Keep Your Skills Up (or Learn New Ones) FREE And Here’s How
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One of the concerns of hiring managers when hiring a person with a recent gap in their employment history, especially when the gap is longer than a few months, is that the candidate may have let their skills atrophy or that they may not have the latest skills.
You can eliminate that concern by keeping your skills honed and acquiring new ones. It does not have to cost you a lot and, in most cases, it will not cost you anything. Just follow these very simple steps.
1) Identify the skills needed
a) Pull five job descriptions for the job you WANT. These job descriptions do not have to be in the town or even in the part of the country you live and want to work. You are not pulling these to apply to; you just need the job descriptions.
b) Going through these job descriptions, identify the skills required.
c) If you have not used these skills in the past few months or if you do not have training in that skill at all, then add it on the list of skills for which you need training. For this example I am going to say you pulled job descriptions for sales jobs and the skill is Salesforce.com. You can just as easily use the example of financial analyst and MS Excel.
2) Locate the free training
a) Using your favorite internet search engine (like Google) type in “free training” and the topic you identified above. Using my example you would enter “free training salesforce.com”.
b) You will get millions of results for most topics searched. Not all of the results are what you are looking for (like some will be for a free brochure on paid training) but most are.
3) If software is required – get free software
a) If the training you need / want requires software, then using your favorite internet search engine (like Google), type in “free trial copy” and the name of the software. Using my example you would enter “free trial copy salesforce.com”.
b) You will receive a list of sites offering trial copies of the software to download. I highly recommend getting it directly from the vendor of the software. This software will expire in a number of days (usually 30, 60 or 90). You want to make the best use of that time. Do not download the software until you are ready to dedicate time for this training. Upon the end of the trial period the software will expire and you will have the option to purchase.
4) Adding structure to the self-study
One of the hardest things about self-study is having focus. Having a checklist will give you that focus and, as you mark off each topic as completed, you will have a sense of accomplishment. Here is my idea for creating a checklist of topics to cover.
a. Go to the web site for an institution that offers paid courses on the topic you want to learn, example a technical center or training center. This can be located by taking off the word “free” from your first search for training. Using my example “training salesforce.com”.
b. On the institution’s site, locate the course syllabus for the training. This is a detailed list of the topics covered under each course. That now is your checklist for the topics you will learn using self-study. For MS Excel an example would be the topic of pivot tables.
c. As you go through the list on the syllabus, go back into the search for free training and look for the free training related to that topic. Using MS Excel as my example, add the word “pivot tables” so the search is “free training MS Excel 2010 Pivot tables”. Repeat this for all of the topics listed in the syllabus.
No company or industry offers job security any more. Your job security comes from keeping your skills and experience at the top of the market so that YOU are in demand. With free training and access to trial copies of the software, you have no reason not to keep your skills up. Once employed, be sure to consider purchasing and using the software from the companies who offered free trial versions.
Judi Adams
RightChanges
The Affordable and Successful Job Search Coach
Author of “Found a Job Yet? And Other Questions NOT to Ask!”
You can eliminate that concern by keeping your skills honed and acquiring new ones. It does not have to cost you a lot and, in most cases, it will not cost you anything. Just follow these very simple steps.
1) Identify the skills needed
a) Pull five job descriptions for the job you WANT. These job descriptions do not have to be in the town or even in the part of the country you live and want to work. You are not pulling these to apply to; you just need the job descriptions.
b) Going through these job descriptions, identify the skills required.
c) If you have not used these skills in the past few months or if you do not have training in that skill at all, then add it on the list of skills for which you need training. For this example I am going to say you pulled job descriptions for sales jobs and the skill is Salesforce.com. You can just as easily use the example of financial analyst and MS Excel.
2) Locate the free training
a) Using your favorite internet search engine (like Google) type in “free training” and the topic you identified above. Using my example you would enter “free training salesforce.com”.
b) You will get millions of results for most topics searched. Not all of the results are what you are looking for (like some will be for a free brochure on paid training) but most are.
3) If software is required – get free software
a) If the training you need / want requires software, then using your favorite internet search engine (like Google), type in “free trial copy” and the name of the software. Using my example you would enter “free trial copy salesforce.com”.
b) You will receive a list of sites offering trial copies of the software to download. I highly recommend getting it directly from the vendor of the software. This software will expire in a number of days (usually 30, 60 or 90). You want to make the best use of that time. Do not download the software until you are ready to dedicate time for this training. Upon the end of the trial period the software will expire and you will have the option to purchase.
4) Adding structure to the self-study
One of the hardest things about self-study is having focus. Having a checklist will give you that focus and, as you mark off each topic as completed, you will have a sense of accomplishment. Here is my idea for creating a checklist of topics to cover.
a. Go to the web site for an institution that offers paid courses on the topic you want to learn, example a technical center or training center. This can be located by taking off the word “free” from your first search for training. Using my example “training salesforce.com”.
b. On the institution’s site, locate the course syllabus for the training. This is a detailed list of the topics covered under each course. That now is your checklist for the topics you will learn using self-study. For MS Excel an example would be the topic of pivot tables.
c. As you go through the list on the syllabus, go back into the search for free training and look for the free training related to that topic. Using MS Excel as my example, add the word “pivot tables” so the search is “free training MS Excel 2010 Pivot tables”. Repeat this for all of the topics listed in the syllabus.
No company or industry offers job security any more. Your job security comes from keeping your skills and experience at the top of the market so that YOU are in demand. With free training and access to trial copies of the software, you have no reason not to keep your skills up. Once employed, be sure to consider purchasing and using the software from the companies who offered free trial versions.
Judi Adams
RightChanges
The Affordable and Successful Job Search Coach
Author of “Found a Job Yet? And Other Questions NOT to Ask!”
26 Eylül 2012 Çarşamba
Motion to delay disciplinary action pending the outcome of a criminal investigation denied
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Motion to delay disciplinary actionpending the outcome of a criminal investigation denied
OATH Administrative Law Judge Ingrid A.Addison denied a pre-trial motion made by a public employee to stay herdisciplinary proceeding pending the outcome of a criminal investigation.
Judge Addison ruled that there was no constitutional barto moving forward with the disciplinary action, where, as here, criminalcharges had not yet been brought.
The employee, in effect, was asking for an indeterminatestay. Such stays are disfavored, said Judge Addison, because the employer has an interest in the promptresolution of misconduct allegations and having the employee against whomdisciplinary charges, or someone else, fulfill the job responsibilities.
Below are selected excerpts from The Discipline Book* [an e-book published by the Public Employment Law Press, 2012, 1476 pages] concerning the relationshipof administrative disciplinary actions and criminal proceedings based on the same alleged acts or omissions. They arereprinted here with permission:
Pendingcriminal matters:
1. " ... Chaplin v NYC Department of Education, 48 A.D.3d 226, isanother example. Here the Appellate Division said that an employee was notentitled to a stay of the disciplinary case as a criminal defendant does nothave a right to stay a related disciplinary proceeding pending the outcome oftrial, citing Watson v City of Jamestown, 27 AD3d 1183. Denial of such a staydoes not adversely affect the employee’s constitutional rights.
2. " Theappointing authority has no obligation to postpone disciplinary action even if the county District Attorney requests administrative action bepostponed. This was the point made by the court in Levine v New York CityTransit Authority, 70 AD2d 900 (2nd Dept 1979), affirmed 49 NY2d 747 (1980). [See also 2.14: “Impact of criminal action on disciplinary action”.]
3. "A[Taylor Law] contract may … prohibit disciplinary action in the face of pendingcriminal charges. Although not so stated in law, the courts have ruled thatSection 75 proceedings need not be postponed because a criminal action isalready pending or may soon be commenced.
4. "Mayadministrative disciplinary action be prosecuted at the same time that acriminal action based on the same facts and allegations is pending? Yes. See,for example, the decisions of the court in Nosik v Singe, 40 F.3d 592, (unnecessary to delayadministrative disciplinary action in a case of a school psychologist accusedof defrauding insurance companies) and Matter of the Haverstraw-Stony PointCSD, 24 Ed. Dept. Rep. 466, (no requirement to adjourn a Section 3020-a hearingwhen parallel criminal proceedings are underway)."
* For information about The Discipline Book , click on http://booklocker.com/books/5215.html
The NYC Department of Homeless Servicesv Simmons decision is posted on the Internet at:
Motion to delay disciplinary actionpending the outcome of a criminal investigation denied
OATH Administrative Law Judge Ingrid A.Addison denied a pre-trial motion made by a public employee to stay herdisciplinary proceeding pending the outcome of a criminal investigation.
Judge Addison ruled that there was no constitutional barto moving forward with the disciplinary action, where, as here, criminalcharges had not yet been brought.
The employee, in effect, was asking for an indeterminatestay. Such stays are disfavored, said Judge Addison, because the employer has an interest in the promptresolution of misconduct allegations and having the employee against whomdisciplinary charges, or someone else, fulfill the job responsibilities.
Below are selected excerpts from The Discipline Book* [an e-book published by the Public Employment Law Press, 2012, 1476 pages] concerning the relationshipof administrative disciplinary actions and criminal proceedings based on the same alleged acts or omissions. They arereprinted here with permission:
Pendingcriminal matters:
1. " ... Chaplin v NYC Department of Education, 48 A.D.3d 226, isanother example. Here the Appellate Division said that an employee was notentitled to a stay of the disciplinary case as a criminal defendant does nothave a right to stay a related disciplinary proceeding pending the outcome oftrial, citing Watson v City of Jamestown, 27 AD3d 1183. Denial of such a staydoes not adversely affect the employee’s constitutional rights.
2. " Theappointing authority has no obligation to postpone disciplinary action even if the county District Attorney requests administrative action bepostponed. This was the point made by the court in Levine v New York CityTransit Authority, 70 AD2d 900 (2nd Dept 1979), affirmed 49 NY2d 747 (1980). [See also 2.14: “Impact of criminal action on disciplinary action”.]
3. "A[Taylor Law] contract may … prohibit disciplinary action in the face of pendingcriminal charges. Although not so stated in law, the courts have ruled thatSection 75 proceedings need not be postponed because a criminal action isalready pending or may soon be commenced.
4. "Mayadministrative disciplinary action be prosecuted at the same time that acriminal action based on the same facts and allegations is pending? Yes. See,for example, the decisions of the court in Nosik v Singe, 40 F.3d 592, (unnecessary to delayadministrative disciplinary action in a case of a school psychologist accusedof defrauding insurance companies) and Matter of the Haverstraw-Stony PointCSD, 24 Ed. Dept. Rep. 466, (no requirement to adjourn a Section 3020-a hearingwhen parallel criminal proceedings are underway)."
* For information about The Discipline Book , click on http://booklocker.com/books/5215.html
The NYC Department of Homeless Servicesv Simmons decision is posted on the Internet at:
Not providing an employee claiming a disability an accommodation that would obviate performing an essential job requirement did not violate the ADA
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Not providing an employee claiming a disability anaccommodation that would obviate performing an essential job requirement didnot violate the ADANYC Fire Department v A.G., OATH Index No. 771/12
The New York City Fire Department sought the termination ofan employee, A.G., alleging the individual “had been excessively late or absent fromwork” in that A.G. had been tardy, or absent from work for more than 700 hours in2010 and in excess of 700 hours in 2011.
The employee’s defense: The Department was in violation ofthe Americans with Disability Act because it had not provided her with a reasonableaccommodation -- a three-hour flex-time schedule -- of the various disabling medical conditions she claimed were the cause of her poor attendance record.
Although A.G. contended that she could not be disciplined forher attendance problems, OATH Administrative Law Judge Kara J. Miller held thatA.G. failed to prove that her alleged medical conditions caused her attendanceproblems.
Judge Miller, finding that timely attendance was an essentialfunction of A.G.’s job, ruled that the Department was not required to providean accommodation that would eliminate its attendance requirements as “areasonable accommodation can never involve the elimination of an essentialfunction of a job,” citing Shannon v. NYC Transit Authority., 332 F.3d 95.
Sustaining the charges, the ALJ recommended that A.G. beterminated from her position.
The decision is posted on the Internet at:http://archive.citylaw.org/oath/12_Cases/12-0771.pdf
Not providing an employee claiming a disability anaccommodation that would obviate performing an essential job requirement didnot violate the ADANYC Fire Department v A.G., OATH Index No. 771/12
The New York City Fire Department sought the termination ofan employee, A.G., alleging the individual “had been excessively late or absent fromwork” in that A.G. had been tardy, or absent from work for more than 700 hours in2010 and in excess of 700 hours in 2011.
The employee’s defense: The Department was in violation ofthe Americans with Disability Act because it had not provided her with a reasonableaccommodation -- a three-hour flex-time schedule -- of the various disabling medical conditions she claimed were the cause of her poor attendance record.
Although A.G. contended that she could not be disciplined forher attendance problems, OATH Administrative Law Judge Kara J. Miller held thatA.G. failed to prove that her alleged medical conditions caused her attendanceproblems.
Judge Miller, finding that timely attendance was an essentialfunction of A.G.’s job, ruled that the Department was not required to providean accommodation that would eliminate its attendance requirements as “areasonable accommodation can never involve the elimination of an essentialfunction of a job,” citing Shannon v. NYC Transit Authority., 332 F.3d 95.
Sustaining the charges, the ALJ recommended that A.G. beterminated from her position.
The decision is posted on the Internet at:http://archive.citylaw.org/oath/12_Cases/12-0771.pdf
Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli
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Selected reports and information published by NewYork State's Comptroller Thomas P. DiNapoli
DiNapoli: Tax Cap Reporting Made Easier
State Comptroller Thomas P. DiNapoli announced that the 2012–13 tax capreporting form has been enhanced to make it easier for local officials toaccurately calculate their tax levy limit.
After analyzing reporting errors from the first year of implementation, DiNapoli’sDivision of Local Government and School Accountability developed an improvedonline property tax cap reporting system to address the most problematic areasencountered by local officials.
DiNapoli: Town Deficit Caused By InaccurateBudgeting
Due to unreasonable budget estimates, the Town of Poughkeepsie was left with a$1.5 million deficit in its major fund balances at the end of 2010, accordingto an auditreleased by State Comptroller Thomas P. DiNapoli. The town has also failed torepay more than $3 million in inter–fund loans it made between different taxbases.
Comptroller DiNapoli Releases Municipal Audits
New York State Comptroller Thomas P. DiNapoli announced his office completedthe following audits:
EastchesterFire District;
OwascoFire Department;
MohawkFire District;
Townof Colonie;
Townof Hinsdale;
Townof Peru;
Townof Red House;
Townof Waterford; and,
Villageof Ballston Spa.
Comptroller DiNapoli Releases School Audits
New York State Comptroller Thomas P. DiNapoli announced his office completedthe audits of:
AchievementAcademy Charter School;
GreenIsland Union Free School District; and,
Madison–OneidaBOCES.
Selected reports and information published by NewYork State's Comptroller Thomas P. DiNapoli
DiNapoli: Tax Cap Reporting Made Easier
State Comptroller Thomas P. DiNapoli announced that the 2012–13 tax capreporting form has been enhanced to make it easier for local officials toaccurately calculate their tax levy limit.
After analyzing reporting errors from the first year of implementation, DiNapoli’sDivision of Local Government and School Accountability developed an improvedonline property tax cap reporting system to address the most problematic areasencountered by local officials.
DiNapoli: Town Deficit Caused By InaccurateBudgeting
Due to unreasonable budget estimates, the Town of Poughkeepsie was left with a$1.5 million deficit in its major fund balances at the end of 2010, accordingto an auditreleased by State Comptroller Thomas P. DiNapoli. The town has also failed torepay more than $3 million in inter–fund loans it made between different taxbases.
Comptroller DiNapoli Releases Municipal Audits
New York State Comptroller Thomas P. DiNapoli announced his office completedthe following audits:
EastchesterFire District;
OwascoFire Department;
MohawkFire District;
Townof Colonie;
Townof Hinsdale;
Townof Peru;
Townof Red House;
Townof Waterford; and,
Villageof Ballston Spa.
Comptroller DiNapoli Releases School Audits
New York State Comptroller Thomas P. DiNapoli announced his office completedthe audits of:
AchievementAcademy Charter School;
GreenIsland Union Free School District; and,
Madison–OneidaBOCES.
Searching an employer’s computer for evidence of employee misconduct
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Searching an employer’scomputer for evidence of employee misconduct
People v David E. Wilkinson; People v Michael Casey, 2008 NY Slip Op28192, Onondaga County Ct, Fahey, J. [Not selected for publications in theOfficial Reports.]
Two employees were each chargedwith the crimes of Defrauding the Government in violation of Section195.20 of the Penal Law; and two counts of Official Misconductin violation of section 195.00(1) and 195.00(2) of the PenalLaw.
Both individuals asked thecourt to suppress evidence obtained by District Attorney’s “White Collar CrimeUnit” as the result of a search of their computers, contending that they didnot consent to the search and that the search warrant issued by the CountyCourt was issued without sufficient probable cause. They also argued that thefruits of the search of their computers must be suppressed because they had anexpectation of privacy in their computers; that the investigators from theDistrict Attorneys Office did not have the consent of either of them to searchthe computers; and that the search warrant obtained after the viewing of thedocument on the Casey computer was the "fruit of the poisonous tree."
Addressing the issue of“consent,” the Court said that both employees “have demonstrated a legitimateand reasonable expectation of privacy in the computers searched.” Finding thatthe searches were conducted without such consent and that the seizures of thecomputers resulted solely from the warrantless search of the computer prior tothe issuance of a search warrant, the motions made by both Wilkinson and Caseyto suppress the resulting evidence was granted by Justice Fahey.
N.B. It should be remembered that this was acriminal proceeding and the rules of evidence are stringent and controlling insuch litigation. Such is not the case in administrative disciplinary actionswhere the hearing officer or arbitrator is not bound by the formal rules ofevidence.
Recent examples of the approvalof the use of computer, or computer related, evidence to find an employeeguilty of administrative disciplinary charges include:
Leo Gustafson v Town of N.Castle, 45 A.D.3d766, Appellate Division, Second Department - The employee, an assistantbuilding inspector with the Town of North Castle, was charged and found guiltyof falsifying official records with respect to where he was while on duty.The individual was assigned a town vehicle for the purpose of making fieldinspections in connection with his employment. The vehicle had a globalpositioning system installed that transmitted information to the town’scomputer reporting the vehicle’s location and movements. Based on thisinformation, the Town charged the employee with falsifying town records as to hiswhereabouts. This, said the Appellate Division, constituted substantialevidence to support the determination that the employee was guilty of falsifyingtown records.
Ghita v Department ofEducation of the City of New York, 2008 NY Slip Op 30706(U), Supreme Court, New YorkCounty, Docket Number: 0110481/2007 [Not selected for publications in theOfficial Reports] – the employee challenged an arbitrator’s determinationterminating his employment with the New York City Department of Education afterfinding him guilty of downloading a file of pornographic material from his AOLemail account and openly viewed such pornographic material from a schoolcomputer. Supreme Court rejected the individual’s claim that the arbitratorexceeded his authority under Education Law §3020-a, and the award terminatingpetitioner's employment is a violation of public policy and New York StateLaw.
Perry v Comm. of Labor, App. Div. 3rd Dept., 283 A.D.2d 754 – This unemployment insurance claimant challenged a determination by the UnemploymentInsurance Appeals Board denying him benefits after finding that his employmentwas terminated due to his misconduct. The nature of the individual's allegedmisconduct: his misuse of his employer's computer equipment. The employee, ahuman resource specialist, was terminated after his employer discovered that heused his computer terminal to frequently access pornographic websites duringworking hours.
In addition,a number of courts have considered the question of an employee's right toprivacy in using his or her employer's computer equipment. In Fraser vNationwide Mutual Insurance Co., USDC, 135 F. Supp. 2d 623, the court heldthat an employee using his or her employer's computer equipment for personalbusiness does not enjoy any "right to privacy" barring the employer’sreviewing the employee's e-mail that is stored inits computer system. Federal District Court Judge Anita B. Brody decided thatan employer may peruse an employee's e-mail files that are stored in the systemwithout violating either federal or Pennsylvania wiretap laws.
As to the issue of the expectation of privacy, the appointing authority maywish to periodically advise its officers and employees that they have no rightto privacy with respect to any data retrieved from the employer's computers,servers, video tapes, message tapes or other storage devices, electronic orotherwise.
http://nypublicpersonnellawarchives.blogspot.com/2008/06/searching-employers-computer-for.html
Searching an employer’scomputer for evidence of employee misconduct
People v David E. Wilkinson; People v Michael Casey, 2008 NY Slip Op28192, Onondaga County Ct, Fahey, J. [Not selected for publications in theOfficial Reports.]
Two employees were each chargedwith the crimes of Defrauding the Government in violation of Section195.20 of the Penal Law; and two counts of Official Misconductin violation of section 195.00(1) and 195.00(2) of the PenalLaw.
Both individuals asked thecourt to suppress evidence obtained by District Attorney’s “White Collar CrimeUnit” as the result of a search of their computers, contending that they didnot consent to the search and that the search warrant issued by the CountyCourt was issued without sufficient probable cause. They also argued that thefruits of the search of their computers must be suppressed because they had anexpectation of privacy in their computers; that the investigators from theDistrict Attorneys Office did not have the consent of either of them to searchthe computers; and that the search warrant obtained after the viewing of thedocument on the Casey computer was the "fruit of the poisonous tree."
Addressing the issue of“consent,” the Court said that both employees “have demonstrated a legitimateand reasonable expectation of privacy in the computers searched.” Finding thatthe searches were conducted without such consent and that the seizures of thecomputers resulted solely from the warrantless search of the computer prior tothe issuance of a search warrant, the motions made by both Wilkinson and Caseyto suppress the resulting evidence was granted by Justice Fahey.
N.B. It should be remembered that this was acriminal proceeding and the rules of evidence are stringent and controlling insuch litigation. Such is not the case in administrative disciplinary actionswhere the hearing officer or arbitrator is not bound by the formal rules ofevidence.
Recent examples of the approvalof the use of computer, or computer related, evidence to find an employeeguilty of administrative disciplinary charges include:
Leo Gustafson v Town of N.Castle, 45 A.D.3d766, Appellate Division, Second Department - The employee, an assistantbuilding inspector with the Town of North Castle, was charged and found guiltyof falsifying official records with respect to where he was while on duty.The individual was assigned a town vehicle for the purpose of making fieldinspections in connection with his employment. The vehicle had a globalpositioning system installed that transmitted information to the town’scomputer reporting the vehicle’s location and movements. Based on thisinformation, the Town charged the employee with falsifying town records as to hiswhereabouts. This, said the Appellate Division, constituted substantialevidence to support the determination that the employee was guilty of falsifyingtown records.
Ghita v Department ofEducation of the City of New York, 2008 NY Slip Op 30706(U), Supreme Court, New YorkCounty, Docket Number: 0110481/2007 [Not selected for publications in theOfficial Reports] – the employee challenged an arbitrator’s determinationterminating his employment with the New York City Department of Education afterfinding him guilty of downloading a file of pornographic material from his AOLemail account and openly viewed such pornographic material from a schoolcomputer. Supreme Court rejected the individual’s claim that the arbitratorexceeded his authority under Education Law §3020-a, and the award terminatingpetitioner's employment is a violation of public policy and New York StateLaw.
Perry v Comm. of Labor, App. Div. 3rd Dept., 283 A.D.2d 754 – This unemployment insurance claimant challenged a determination by the UnemploymentInsurance Appeals Board denying him benefits after finding that his employmentwas terminated due to his misconduct. The nature of the individual's allegedmisconduct: his misuse of his employer's computer equipment. The employee, ahuman resource specialist, was terminated after his employer discovered that heused his computer terminal to frequently access pornographic websites duringworking hours.
In addition,a number of courts have considered the question of an employee's right toprivacy in using his or her employer's computer equipment. In Fraser vNationwide Mutual Insurance Co., USDC, 135 F. Supp. 2d 623, the court heldthat an employee using his or her employer's computer equipment for personalbusiness does not enjoy any "right to privacy" barring the employer’sreviewing the employee's e-mail that is stored inits computer system. Federal District Court Judge Anita B. Brody decided thatan employer may peruse an employee's e-mail files that are stored in the systemwithout violating either federal or Pennsylvania wiretap laws.
As to the issue of the expectation of privacy, the appointing authority maywish to periodically advise its officers and employees that they have no rightto privacy with respect to any data retrieved from the employer's computers,servers, video tapes, message tapes or other storage devices, electronic orotherwise.
http://nypublicpersonnellawarchives.blogspot.com/2008/06/searching-employers-computer-for.html
Suspension without pay during a pending disciplinary action
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Suspensionwithout pay during a pending disciplinary action
Elmore v Mills, 299 A.D.2d 545, Motion for leave to appeal denied, 9 N.Y.2d 509
Among the severalissues considered by the Appellate Division, Third Department in Elmore casewas the suspension of a tenured teacher without pay in the course of a disciplinaryaction.
Plainview-OldBethpage Central School District filed disciplinary charges against theeducator pursuant to Section 3020-a of the Education Law. Section 3020-a.2(b)provides that in the event a teacher is suspended during pendency of thehearing, such suspension shall be with pay unless the teacher pleaded guiltyto, or was convicted of, one of several enumerated crimes.
However, in thisinstance the Taylor Law contract between the district and the teacher union, inpertinent part, provided that “A teacher who has been suspended from schoolpursuant to Section 3020-a of the Education Law shall receive his/her regularfull pay to which he/she would otherwise be entitled pursuant to … theCollective Bargaining Agreement [CBA] and all fringe benefits for a period of amaximum of fifteen (15) school months (11/2 years salary).... Thereafter, anysuspension may be without pay.”
In December 1998,the District, relying on this provision in the CBA, suspended the teacherwithout pay, effective January 6, 1999, pending the outcome of the disciplinaryhearing. The educator, however, had neither pleaded guilty to, nor wasconvicted of, any of the several crimes enumerated in Section 3020-a. Was theteacher's suspension without pay by the District pursuant to the CBA lawful inview of the provisions of Education Law Section 3020-a.2(b)?
Although theAppellate Division declined to rule on this question, holding that because afinal determination in the disciplinary action had been made and thus the issuewas "moot," the court did elect to discuss a number of elementsconcerning the question of suspension without pay in a Section 3020-aproceeding. It said that:
A CBA may allow a school district to suspend its teacherswithout pay as long as the agreement's terms clearly manifest the parties' intentto do so, citing Board of Education of the City of Rochester v Nyquist, 48 NY2d97.
The CBA relied upon by the District in this case clearlycircumscribes a teacher's right to full pay during a protracted suspension.
The CBA provides for restoration of wages and benefits for anysuch period of leave without pay if the teacher ultimately is not terminatedfrom employment but here the penalty imposed on Elmore was termination.
Thus, said thecourt, if the issue of the educator's suspension without pay was properlybefore it, it would find that this provision in the CBA was valid and thatunder the circumstances the District was authorized to suspend the teacherwithout pay as provided by the CBA.
Suspensionwithout pay during a pending disciplinary action
Elmore v Mills, 299 A.D.2d 545, Motion for leave to appeal denied, 9 N.Y.2d 509
Among the severalissues considered by the Appellate Division, Third Department in Elmore casewas the suspension of a tenured teacher without pay in the course of a disciplinaryaction.
Plainview-OldBethpage Central School District filed disciplinary charges against theeducator pursuant to Section 3020-a of the Education Law. Section 3020-a.2(b)provides that in the event a teacher is suspended during pendency of thehearing, such suspension shall be with pay unless the teacher pleaded guiltyto, or was convicted of, one of several enumerated crimes.
However, in thisinstance the Taylor Law contract between the district and the teacher union, inpertinent part, provided that “A teacher who has been suspended from schoolpursuant to Section 3020-a of the Education Law shall receive his/her regularfull pay to which he/she would otherwise be entitled pursuant to … theCollective Bargaining Agreement [CBA] and all fringe benefits for a period of amaximum of fifteen (15) school months (11/2 years salary).... Thereafter, anysuspension may be without pay.”
In December 1998,the District, relying on this provision in the CBA, suspended the teacherwithout pay, effective January 6, 1999, pending the outcome of the disciplinaryhearing. The educator, however, had neither pleaded guilty to, nor wasconvicted of, any of the several crimes enumerated in Section 3020-a. Was theteacher's suspension without pay by the District pursuant to the CBA lawful inview of the provisions of Education Law Section 3020-a.2(b)?
Although theAppellate Division declined to rule on this question, holding that because afinal determination in the disciplinary action had been made and thus the issuewas "moot," the court did elect to discuss a number of elementsconcerning the question of suspension without pay in a Section 3020-aproceeding. It said that:
A CBA may allow a school district to suspend its teacherswithout pay as long as the agreement's terms clearly manifest the parties' intentto do so, citing Board of Education of the City of Rochester v Nyquist, 48 NY2d97.
The CBA relied upon by the District in this case clearlycircumscribes a teacher's right to full pay during a protracted suspension.
The CBA provides for restoration of wages and benefits for anysuch period of leave without pay if the teacher ultimately is not terminatedfrom employment but here the penalty imposed on Elmore was termination.
Thus, said thecourt, if the issue of the educator's suspension without pay was properlybefore it, it would find that this provision in the CBA was valid and thatunder the circumstances the District was authorized to suspend the teacherwithout pay as provided by the CBA.
25 Eylül 2012 Salı
Are You Commiting Any of the Deadly Sins of the Job Search?
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Whether you are a recent graduate or an experienced worker, whether you are unemployed, misemployed, or underemployed, you have to ask yourself: Have I committed any of the five deadly sins of the job search?
Watch this free YouTube video series by successful job search coach, blogger, author, and speaker Judi Adams of RightChanges to see if you are hurting your own job search.
Watch this free YouTube video series by successful job search coach, blogger, author, and speaker Judi Adams of RightChanges to see if you are hurting your own job search.
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.
Guaranteed Personal Loans With No Credit Check
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You just have to beware of predatory lending as some of these faxless payday loans come with exceptionally expensive rates, and repayment terms that put the consumers on the receiving end, leading them with little or no money after repaying the entire loan. If you have bad credit, you have to make a concerted effort to restore it and the simplest way is to pay your bills promptly. Know what are your financial limits with regards to getting loans with no credit check and avoid taking out more than you can really afford.
Do you want to get a guaranteed loan today? We recommend that you use our no-obligation loan service to help you get a low rate cash advance with instant approval. If you have a financial emergency now, use our services today.
Apply online at 100dayloanlenders.com - the easiest way to get a loan online.
Loans With Guaranteed Approval
Do you have bad credit and you are trying to look for guaranteed personal loans with no credit check? If you are checking out what's available on the market,you would have noticed that personal loans often fall into two categories. One is the low interest personal loans offered by banks and other high-street financial institutions and the other type is bad credit loans that tend to come with poorer terms and higher fees.5000 Dollar Bad Credit Loan
Needless to say, if your credit score is high, you would have no problem in getting competitive rates on personal loans. However, if your credit score is less than OK, or falls below 550, your options become severely limited when it comes to choosing a guaranteed personal loan with bad credit. First of all, banks do not offer any types of unsecured installment loans for people with bad credit. If you need a 5000 dollar bad credit loan today, you have to look beyond them and look for non-bank private loan lenders.Secured Installment Loans With Bad Credit
Pawn shops can be a source for people with bad credit to get a loan. Collateral is required but you can use your valuable items in exchange for money from a pawn loan lender. There is no credit check when you apply for a secured pawn loan but the risk is that your items can be sold off if you fail to repay or renew the loan. The size of the loan will depend on how much cash the pawn lenders will be able to resell your items for. Goods like branded watches, jewellery or high end mobile phones are commonly sought after and you can easily get a low cost personal loan guaranteed ranging between 500 dollars to a few thousands.Borrow 500 Dollar Cash By Tomorrow
If you don't need large personal loans for more than 5000 dollars, but just want a quick and easy loan to help you bridge the gap between paychecks, you can actually find short term loans with no credit check from online payday loan websites. These online lenders offers guaranteed payday loans with no credit check starting from as little as 100 dollars, up to a maximum amount of 1500 dollars. Also called a salary advance loan, this type of loan allows you to borrow ahead of your next payday and pay it back only when you have receive your monthly salary. If you need an emergency 500 dollar cash by today or tomorrow, such loans can be very useful for short term financing needs when you want a small cash advance fast but do not want to go to the bank to borrow.You just have to beware of predatory lending as some of these faxless payday loans come with exceptionally expensive rates, and repayment terms that put the consumers on the receiving end, leading them with little or no money after repaying the entire loan. If you have bad credit, you have to make a concerted effort to restore it and the simplest way is to pay your bills promptly. Know what are your financial limits with regards to getting loans with no credit check and avoid taking out more than you can really afford.
Do you want to get a guaranteed loan today? We recommend that you use our no-obligation loan service to help you get a low rate cash advance with instant approval. If you have a financial emergency now, use our services today.
Apply online at 100dayloanlenders.com - the easiest way to get a loan online.
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