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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."
30 Eylül 2012 Pazar
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]
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]
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
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
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:
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:
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.
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
28 Eylül 2012 Cuma
Sedona Grief Retreat
To contact us Click HERE
This retreat has me wishing I still lived in the U.S. for many reasons. One of them is Kara Jones, aka Mother Henna.....she is an awesome creative, bereaved mother, teacher, coach and all-around cool person. She, as well as the amazing Joanne Cacciatore, bereaved mother, professor, and founder of the MISS Foundation, are putting on a grief retreat in beautiful Sedona, Arizona on October 15th, which Infant Loss & Remembrance Day.
This retreat is open to anyone grieving a loss and not limited to infant bereavement. I would love to go and learn from these wise women, not to mention spend a weekend in Sedona--my husband and I traveled there for a wedding anniversary many years ago and I would love to get back to the breathtaking scenery and wide-open skies we found there.
If you're able to attend, I'd love to hear about it afterwards.
This retreat has me wishing I still lived in the U.S. for many reasons. One of them is Kara Jones, aka Mother Henna.....she is an awesome creative, bereaved mother, teacher, coach and all-around cool person. She, as well as the amazing Joanne Cacciatore, bereaved mother, professor, and founder of the MISS Foundation, are putting on a grief retreat in beautiful Sedona, Arizona on October 15th, which Infant Loss & Remembrance Day.
This retreat is open to anyone grieving a loss and not limited to infant bereavement. I would love to go and learn from these wise women, not to mention spend a weekend in Sedona--my husband and I traveled there for a wedding anniversary many years ago and I would love to get back to the breathtaking scenery and wide-open skies we found there.
If you're able to attend, I'd love to hear about it afterwards.
The Story of Ben
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I make the mistake, all too frequently, of thinking that Ben's story belongs only to me. Yes, I cling to it, to him, possessively, a mother bear ready to fight for her cub. I think that he is solely mine because I carried him in my womb, because he spent all of his life, his living, within me. I want him to be all mine because I have so little to show he was ever here.
There are other stories of his life and death that I forget. His father's story. His grandparents' and aunts', uncles', cousins' stories. His brother's and sister's stories.
All of these stories are incomplete, just like mine, but no less valid, no less real. I was reminded this morning of that reality by James, who cried in bed as I prodded him to get up, get ready for school. "I miss my brother," he said, as a tear rolled down his cheek. And while I don't think he was crying because he misses the brother who lived and died before he came to be, I could only think of how different our lives would be had Ben lived. That James and Charlotte will have their own stories to tell one day of how they think their lives changed because one of us is gone.
I want Ben's story to be mine only, because I am selfish, because I miss him, because I am his mother. But all of us lost something the day he died. All of us, whether we acknowledge it or not.
I make the mistake, all too frequently, of thinking that Ben's story belongs only to me. Yes, I cling to it, to him, possessively, a mother bear ready to fight for her cub. I think that he is solely mine because I carried him in my womb, because he spent all of his life, his living, within me. I want him to be all mine because I have so little to show he was ever here.
There are other stories of his life and death that I forget. His father's story. His grandparents' and aunts', uncles', cousins' stories. His brother's and sister's stories.
All of these stories are incomplete, just like mine, but no less valid, no less real. I was reminded this morning of that reality by James, who cried in bed as I prodded him to get up, get ready for school. "I miss my brother," he said, as a tear rolled down his cheek. And while I don't think he was crying because he misses the brother who lived and died before he came to be, I could only think of how different our lives would be had Ben lived. That James and Charlotte will have their own stories to tell one day of how they think their lives changed because one of us is gone.
I want Ben's story to be mine only, because I am selfish, because I miss him, because I am his mother. But all of us lost something the day he died. All of us, whether we acknowledge it or not.
Pregnancy & Infant Loss Awareness Month
To contact us Click HERE
It's that time again...October. I wasn't going to bring it up, much, over here, but today I was reminded, yet again, that I am supposed to be over losing Ben.
And so, let me ask you this, those of you who think I should be "over" it. If your husband of 40 years died tomorrow, how soon would you be over it? If your 3-year-old grandchild died next week, how soon would you be over it? If your 35-year-old son died today, how soon would you be over it? Do you not think you would carry it with you for the rest of your days? Do you think you would not think about that particular beloved every day?
I lost one of the three best things I have ever done. And I will talk about him (though I barely talk about him I know you think I dwell on his absence far too much) because I love him. And he is my child every bit as much as the two I have here, living and breathing. And if talking about Ben, and advocating for stillbirth research and support can change the outcome positively for that 50% of babies whose lives might be saved, then no, I will never get over it.
It's that time again...October. I wasn't going to bring it up, much, over here, but today I was reminded, yet again, that I am supposed to be over losing Ben.
And so, let me ask you this, those of you who think I should be "over" it. If your husband of 40 years died tomorrow, how soon would you be over it? If your 3-year-old grandchild died next week, how soon would you be over it? If your 35-year-old son died today, how soon would you be over it? Do you not think you would carry it with you for the rest of your days? Do you think you would not think about that particular beloved every day?
I lost one of the three best things I have ever done. And I will talk about him (though I barely talk about him I know you think I dwell on his absence far too much) because I love him. And he is my child every bit as much as the two I have here, living and breathing. And if talking about Ben, and advocating for stillbirth research and support can change the outcome positively for that 50% of babies whose lives might be saved, then no, I will never get over it.
Stillbirth Statistics
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From the recent series of articles printed in the British medical journal The Lancet, which coordinated a study with the World Health Organization:
I don't speak out because I am grieving, or because I am depressed, or because I am dwelling on the fact that Ben is dead. I speak out because I love him, and because if more people know that almost 50% of stillbirths can be prevented, if society has the will to research, fund, and educate the population, (as with SIDS research and education), we can make a huge difference in many, many lives. We can spare parents the sorrow my family has experienced.
Let me make it clear: yes, I still grieve for my son, it's only natural. There are a lifetime of moments I will never experience with him. I miss him, always, every day. I'm here now because I want to make a difference, not because I am dwelling in my loss. You don't get over it, but you learn to incorporate it into your life. That's what I've done.
I can make a difference. That's why I'm here.
From the recent series of articles printed in the British medical journal The Lancet, which coordinated a study with the World Health Organization:
- 2.6 million third-trimester stillbirths worldwide each year;
- 1.1 million could be prevented, The Lancet estimates, with simple interventions like folic acid supplements before conception, diabetes management in the mother, and detection of hypertension, among others;
I don't speak out because I am grieving, or because I am depressed, or because I am dwelling on the fact that Ben is dead. I speak out because I love him, and because if more people know that almost 50% of stillbirths can be prevented, if society has the will to research, fund, and educate the population, (as with SIDS research and education), we can make a huge difference in many, many lives. We can spare parents the sorrow my family has experienced.
Let me make it clear: yes, I still grieve for my son, it's only natural. There are a lifetime of moments I will never experience with him. I miss him, always, every day. I'm here now because I want to make a difference, not because I am dwelling in my loss. You don't get over it, but you learn to incorporate it into your life. That's what I've done.
I can make a difference. That's why I'm here.
This Looks Like Progress
To contact us Click HERE
I'm hesitant to say it, simply because I'm a cynic and because the issue of stillbirth, and raising awareness and working towards prevention of stillbirth, is so dear to my heart. However, I've been impressed and surprised to see a little more awareness of Pregnancy and Infant Loss Awareness month in more traditional media venues, acknowledged by people and groups we've actually heard of.
For example, on Facebook, as well as on their website, the natural cleaning products company Seventh Generation posted a note about Pregnancy and Infant Loss Awareness Day, October 15th, in recognition of the millions of women who lose a baby every year. Would we have seen that a year or two ago? I think not, though I am curious as to what, if anything, prompted the company to add such a post to their wall. I am both surprised and very grateful to them for mentioning the day itself. It gives me hope and makes me feel proud that I have used their products in the past. Not sure if they are here in England, but if they are, I will be supporting them as a customer again.
The Washington Post included a blog post about October 15th in their online forums in a column by Janice D'Arcy. I can't say if this ran in the print version of the paper, but I'm pleased that it ran in online under the headline of one of the US's larger papers (so many notices are in small venues; this one is likely to pick up more notice).
If you get a chance and feel so moved, thank the people and companies you see making an effort to acknowledge stillbirth. These are small but positive steps in the right direction, and they deserve our thanks if we are to continue making strides in education about grieving and loss.
I'm hesitant to say it, simply because I'm a cynic and because the issue of stillbirth, and raising awareness and working towards prevention of stillbirth, is so dear to my heart. However, I've been impressed and surprised to see a little more awareness of Pregnancy and Infant Loss Awareness month in more traditional media venues, acknowledged by people and groups we've actually heard of.
For example, on Facebook, as well as on their website, the natural cleaning products company Seventh Generation posted a note about Pregnancy and Infant Loss Awareness Day, October 15th, in recognition of the millions of women who lose a baby every year. Would we have seen that a year or two ago? I think not, though I am curious as to what, if anything, prompted the company to add such a post to their wall. I am both surprised and very grateful to them for mentioning the day itself. It gives me hope and makes me feel proud that I have used their products in the past. Not sure if they are here in England, but if they are, I will be supporting them as a customer again.
The Washington Post included a blog post about October 15th in their online forums in a column by Janice D'Arcy. I can't say if this ran in the print version of the paper, but I'm pleased that it ran in online under the headline of one of the US's larger papers (so many notices are in small venues; this one is likely to pick up more notice).
If you get a chance and feel so moved, thank the people and companies you see making an effort to acknowledge stillbirth. These are small but positive steps in the right direction, and they deserve our thanks if we are to continue making strides in education about grieving and loss.
27 Eylül 2012 Perşembe
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
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.
Searching an employer’s computer for evidence of employee misconduct
To contact us Click HERE
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.
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
26 Eylül 2012 Çarşamba
Minnesota Waitress Sues After Police Seize $12,000 'Tip'
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Stacy Knutson, a struggling Minnesota waitress and mother of five, says she was searching for a "miracle" to help her family with financial problems.
But that "miracle" quickly came and went after police seized a $12,000 tip that was left at her table. Knutson filed a lawsuit in Clay County District Court stating that the money is rightfully hers. Police argue it is drug money.
Knutson was working at the Fryn' Pan in Moorhead, Minn., when, according to her attorney, Craig Richie, a woman left a to-go box from another restaurant on the table. Knutson followed the woman to her car to return the box to her.
"No I am good, you keep it," the woman said, according to the lawsuit.
Knutson did not know the woman and has not seen her since, Richie said. Knutson thought it was "strange" that the woman told her to keep it but she took it inside. The box felt too heavy to be leftovers, Ritchie said, so she opened it -- only to find bundles of cash wrapped in rubber bands.
"Even though I desperately needed the money as my husband and I have five children, I feel I did the right thing by calling the Moorhead Police," Knutson said in the lawsuit.
Police seized the money and originally told Knutson that if no one claimed it after 60 days, it was hers. She was later told 90 days, Richie said. When 90 days passed, Knutson was still without the $12,000.
Police told Knutson the money was being held as "drug money" and she would receive a $1,000 reward instead, the lawsuit states. Lt. Tory Jacobson of the Moorhead police said he could not disclose much information about the case because it is an ongoing investigation.
"With turning this money over to us, we initiated an investigation to determine whose money this is," Jacobson told ABC News. "The result has been a narcotics investigation."
Police argue that the money had a strong odor of marijuana and therefore falls under a law that allows for forfeiture of the money because it was in the proximity of a controlled substance, the lawsuit states. But there were no drugs in the box and Richie said he believes this law is not being used correctly.
"Because it was in contact with drugs somewhere along the line, it's somehow drug money," Richie said. "This isn't drug money."
A police dog also performed a sniff test on the money and, according to the dog's handler, discovered an odor.
Two of Knutson's co-workers, along with her son Brandon, were at the Fryn' Pan the night she discovered the money. Her co-workers say they did not smell marijuana.
"I know the smell of marijuana," Nickolas Fronning, a line cook at the Fryn' Pan, said in an affidavit. "I can also assure you that there was no smell of marijuana on the bills or coming from the box."
There was nothing suspicious in the restaurant when the money was found, co-workers said. They don't why it was given to Knutson.
"She was just in the right place at the right time," Tracy Johnson, the assistant manager at the Fryn' Pan, told ABC News.
Knutson's family has had a long financial struggle. She has been a waitress at the Fryn' Pan for 18 years.
"We do everything we can to make ends meet, but often times everything is not covered," she said in the lawsuit.
Knutson's financial woes are well-known in her church, Richie said. She believes that perhaps someone from the church gave her the money through this woman but did not want to be identified.
"Somebody knew she really needed the money and she needed to be helped," Richie said.
Jacobson says it is up to the judge to decide who the money rightfully belongs to.
"The police department doesn't have a decision on either side," Jacobson said. "She did the right thing, we credit her with that. It's certainly not the police department against her. We're actually with her."
But Richie said he firmly believes this is not drug money and it rightfully belongs to Knutson.
"The only thing that smells bad about this is that it's unfair," Richie said. "So that's why we're doing something about it."
Stacy Knutson, a struggling Minnesota waitress and mother of five, says she was searching for a "miracle" to help her family with financial problems.But that "miracle" quickly came and went after police seized a $12,000 tip that was left at her table. Knutson filed a lawsuit in Clay County District Court stating that the money is rightfully hers. Police argue it is drug money.
Knutson was working at the Fryn' Pan in Moorhead, Minn., when, according to her attorney, Craig Richie, a woman left a to-go box from another restaurant on the table. Knutson followed the woman to her car to return the box to her.
"No I am good, you keep it," the woman said, according to the lawsuit.
Knutson did not know the woman and has not seen her since, Richie said. Knutson thought it was "strange" that the woman told her to keep it but she took it inside. The box felt too heavy to be leftovers, Ritchie said, so she opened it -- only to find bundles of cash wrapped in rubber bands.
"Even though I desperately needed the money as my husband and I have five children, I feel I did the right thing by calling the Moorhead Police," Knutson said in the lawsuit.
Police seized the money and originally told Knutson that if no one claimed it after 60 days, it was hers. She was later told 90 days, Richie said. When 90 days passed, Knutson was still without the $12,000.
Police told Knutson the money was being held as "drug money" and she would receive a $1,000 reward instead, the lawsuit states. Lt. Tory Jacobson of the Moorhead police said he could not disclose much information about the case because it is an ongoing investigation.
"With turning this money over to us, we initiated an investigation to determine whose money this is," Jacobson told ABC News. "The result has been a narcotics investigation."
Police argue that the money had a strong odor of marijuana and therefore falls under a law that allows for forfeiture of the money because it was in the proximity of a controlled substance, the lawsuit states. But there were no drugs in the box and Richie said he believes this law is not being used correctly.
"Because it was in contact with drugs somewhere along the line, it's somehow drug money," Richie said. "This isn't drug money."
A police dog also performed a sniff test on the money and, according to the dog's handler, discovered an odor.
Two of Knutson's co-workers, along with her son Brandon, were at the Fryn' Pan the night she discovered the money. Her co-workers say they did not smell marijuana.
"I know the smell of marijuana," Nickolas Fronning, a line cook at the Fryn' Pan, said in an affidavit. "I can also assure you that there was no smell of marijuana on the bills or coming from the box."
There was nothing suspicious in the restaurant when the money was found, co-workers said. They don't why it was given to Knutson.
"She was just in the right place at the right time," Tracy Johnson, the assistant manager at the Fryn' Pan, told ABC News.
Knutson's family has had a long financial struggle. She has been a waitress at the Fryn' Pan for 18 years.
"We do everything we can to make ends meet, but often times everything is not covered," she said in the lawsuit.
Knutson's financial woes are well-known in her church, Richie said. She believes that perhaps someone from the church gave her the money through this woman but did not want to be identified.
"Somebody knew she really needed the money and she needed to be helped," Richie said.
Jacobson says it is up to the judge to decide who the money rightfully belongs to.
"The police department doesn't have a decision on either side," Jacobson said. "She did the right thing, we credit her with that. It's certainly not the police department against her. We're actually with her."
But Richie said he firmly believes this is not drug money and it rightfully belongs to Knutson.
"The only thing that smells bad about this is that it's unfair," Richie said. "So that's why we're doing something about it."
Update: Minnesota Waitress Gets to Keep $12,000 Tip
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Updated: A Minnesota waitress has $12,000 to help pay her bills after claiming in a lawsuit that she was entitled to the money she turned over to police after a customer gave it to her.
Stacy Knutson of Moorhead, Minn., said in the Clay County suit that more than 90 days had passed without anyone claiming the money and it should be returned to her, report the Associated Press and ABC News. Police said the money smelled like marijuana and it was being held in a drug investigation.
On Thursday, Knutson’s lawyer, Craig Richie, said authorities decided to return the money, report Reuters and the Minneapolis Star Tribune. Knutson received her check Thursday night.
According to the suit, a customer left the money for Knutson when she was working at the Fry’n Pan restaurant. The money was in a takeout box for another restaurant. Knutson’s suit said she tried to return the box to the customer, not knowing what it contained, and the customer said, “No, I am good, you keep it.” When Knutson opened the box, she saw it contained wads of bills.
Richie says his client gave the money to police because she didn’t want to be accused of doing anything wrong. When no one claimed it, Knutson decided the money really was a gift, Richie says. She suspects the donor was someone from her church who knew she was having financial troubles.
"The only thing that smells bad about this is that it's unfair," Richie told ABC before the settlement was announced.
Knutson plans to use the money to pay medical bills. She currently works full time at the Fry'n Pan and part time at two other jobs.
Updated: A Minnesota waitress has $12,000 to help pay her bills after claiming in a lawsuit that she was entitled to the money she turned over to police after a customer gave it to her.Stacy Knutson of Moorhead, Minn., said in the Clay County suit that more than 90 days had passed without anyone claiming the money and it should be returned to her, report the Associated Press and ABC News. Police said the money smelled like marijuana and it was being held in a drug investigation.
On Thursday, Knutson’s lawyer, Craig Richie, said authorities decided to return the money, report Reuters and the Minneapolis Star Tribune. Knutson received her check Thursday night.
According to the suit, a customer left the money for Knutson when she was working at the Fry’n Pan restaurant. The money was in a takeout box for another restaurant. Knutson’s suit said she tried to return the box to the customer, not knowing what it contained, and the customer said, “No, I am good, you keep it.” When Knutson opened the box, she saw it contained wads of bills.
Richie says his client gave the money to police because she didn’t want to be accused of doing anything wrong. When no one claimed it, Knutson decided the money really was a gift, Richie says. She suspects the donor was someone from her church who knew she was having financial troubles.
"The only thing that smells bad about this is that it's unfair," Richie told ABC before the settlement was announced.
Knutson plans to use the money to pay medical bills. She currently works full time at the Fry'n Pan and part time at two other jobs.
Barton G. restaurants to pay more than $28,000 in back wages
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Barton G. restaurants has agreed to pay $28,027 in back wages to 99 employees following investigations by the U.S. Department of Labor.The government found minimum wage, overtime and record-keeping violations of the Fair Labor Standards Act took place at all three of Barton G.’s Miami locations: Barton G. The Restaurant in South Beach, Prelude by Barton G. inside the Adrienne Arsht Center for the Performing Arts in Miami and The Villa By Barton G. in the former Versace Mansion.This is likely to be the first of several cases about to come down against South Beach restaurateurs.Investigators from the Department of Labor’s Miami office found violations including failure to properly pay tipped employees, such as servers and bartenders, for all hours worked. Payroll records and interviews show that many employees earned wages below the federal minimum of $7.25 per hour.Barton G. also failed to properly calculate and compensate tipped employees for all overtime hours beyond 40 hours per week. In addition, record-keeping violations meant some employees were paid a percentage of sales, which is a commission and not a tip.Following the investigations, Barton G. agreed to pay all back wages, change its payroll systems and maintain future compliance with the federal law.Owner Barton G. Weiss said any errors were not intentional, but simply computerized calculation errors.“If we were wrong, we were wrong,” Weiss said. “I’ll take the hit for it. They came up with a number and I agreed to pay.”
Comment by Lowell J. Kuvin, Esq.
However, what the article does not say is that the employees who were not paid correctly have a choice of accepting what DOL thinks they are owed, or, hiring a law firm to recover their lost wages. What is the difference? A law firm such as the Law Office of Lowell J. Kuvin, LLC can ask the court for the wages you are owed as well as an equal amount in liquidated damages, while DOL will not. To put it another way, if you are owed $350 in unpaid wages, we ask for $700 plus attorney fees and costs. In my opinion, if a person gets caught walking out of a store without paying for an item, you shouldn't be allowed to just pay for the item, and walk away. What would keep you from doing the same thing again and again?
Contact us today for a free assessment of your case.
Read more here: http://www.miamiherald.com/2012/05/01/2778187/barton-g-restaurants-to-pay-more.html#storylink=cpy
BY ELAINE WALKER
EWALKER@MIAMIHERALD.COM
Barton G. restaurants has agreed to pay $28,027 in back wages to 99 employees following investigations by the U.S. Department of Labor.The government found minimum wage, overtime and record-keeping violations of the Fair Labor Standards Act took place at all three of Barton G.’s Miami locations: Barton G. The Restaurant in South Beach, Prelude by Barton G. inside the Adrienne Arsht Center for the Performing Arts in Miami and The Villa By Barton G. in the former Versace Mansion.This is likely to be the first of several cases about to come down against South Beach restaurateurs.Investigators from the Department of Labor’s Miami office found violations including failure to properly pay tipped employees, such as servers and bartenders, for all hours worked. Payroll records and interviews show that many employees earned wages below the federal minimum of $7.25 per hour.Barton G. also failed to properly calculate and compensate tipped employees for all overtime hours beyond 40 hours per week. In addition, record-keeping violations meant some employees were paid a percentage of sales, which is a commission and not a tip.Following the investigations, Barton G. agreed to pay all back wages, change its payroll systems and maintain future compliance with the federal law.Owner Barton G. Weiss said any errors were not intentional, but simply computerized calculation errors.“If we were wrong, we were wrong,” Weiss said. “I’ll take the hit for it. They came up with a number and I agreed to pay.”
Comment by Lowell J. Kuvin, Esq.
However, what the article does not say is that the employees who were not paid correctly have a choice of accepting what DOL thinks they are owed, or, hiring a law firm to recover their lost wages. What is the difference? A law firm such as the Law Office of Lowell J. Kuvin, LLC can ask the court for the wages you are owed as well as an equal amount in liquidated damages, while DOL will not. To put it another way, if you are owed $350 in unpaid wages, we ask for $700 plus attorney fees and costs. In my opinion, if a person gets caught walking out of a store without paying for an item, you shouldn't be allowed to just pay for the item, and walk away. What would keep you from doing the same thing again and again?
Contact us today for a free assessment of your case.
Read more here: http://www.miamiherald.com/2012/05/01/2778187/barton-g-restaurants-to-pay-more.html#storylink=cpy
Workers rally in downtown Miami to demand a higher minimum wage !
To contact us Click HERE
Three years after completing a tour of duty in Iraq, Marcus Edgerson is poor
The 24-year-old veteran supports his wife and 4-month-old son working part-time at the Walmart in Hallandale Beach. He earns $7.70 an hour — three cents more than Florida’s minimum wage
“I fought for my country so we could live well, but then I come home and we’re living in poverty,” he said. “I can’t take care of my family, and that’s not right.
Edgerson joined a rally at downtown Miami’s Bayfront Park to mark the third anniversary of the last time Congress raised the federal minimum wage. About 200 people turned up for the demonstration — one of many that took place across the country Tuesday in support of proposals by Sen. Tom Harkin, D-Iowa, and Rep. George Miller, D-Calif., to increase the national minimum wage from $7.25 an hour to $9.80 by 2014. Their proposals would also index the minimum wage to inflation.
Florida’s minimum wage is higher than the national one, and is already linked to inflation. If the proposed federal increase is adopted, the national minimum wage would surpass and replace Florida’s.
Such an increase would raise the annual pay for a full-time minimum wage employee from about $15,000 to $20,000, according to the Economic Policy Institute. This would put an extra $100 a week in the pockets of the 20 million Americans who earn minimum wage.
The most common argument in support of the measure is to compensate those at the lower end of the pay scale more for their work so that they have money to spend, thus increasing demand for goods and services. The money spent on higher wages for the poor would immediately “recirculate back into our economy,” said Eric Brakken, director of 1Miami, a collection of community groups that organized the rally.
Opponents of the proposal say that increasing the minimum wage would make it harder to create jobs in an economy where unemployment is still uncomfortably high. If workers must be paid more, fewer might be hired, they say.
Brakken dismissed this argument, saying that economists should be concerned with the quality of jobs that are created, not just the number of positions. Many of the janitors and other low-wage workers at the rally on Tuesday told stories of losing their full-time jobs with benefits so that companies could take on more part-time workers who would cost employers less.
Edgerson, the veteran, said if the minimum wage were increased, it would help him buy the basics for his young family. At the top of his list is a driver’s license, which will cost him $250 since he was fined for not having the car insurance he couldn’t afford. Without a driver’s license, he has little chance of getting a better job, and he has to work for Walmart for a full year before he can be hired full time
“It’s frustrating that I don’t get paid much for my hard work,” he said. “I like to help people, and they appreciate the customer service. But the company, they don’t appreciate the work I do for them. . . . If I were not out there, they wouldn’t make their money.”
Read more here: http://www.miamiherald.com/2012/07/24/2910776/workers-rally-in-downtown-miami.html#storylink=cpy
Three years after completing a tour of duty in Iraq, Marcus Edgerson is poorThe 24-year-old veteran supports his wife and 4-month-old son working part-time at the Walmart in Hallandale Beach. He earns $7.70 an hour — three cents more than Florida’s minimum wage
“I fought for my country so we could live well, but then I come home and we’re living in poverty,” he said. “I can’t take care of my family, and that’s not right.
Edgerson joined a rally at downtown Miami’s Bayfront Park to mark the third anniversary of the last time Congress raised the federal minimum wage. About 200 people turned up for the demonstration — one of many that took place across the country Tuesday in support of proposals by Sen. Tom Harkin, D-Iowa, and Rep. George Miller, D-Calif., to increase the national minimum wage from $7.25 an hour to $9.80 by 2014. Their proposals would also index the minimum wage to inflation.
Florida’s minimum wage is higher than the national one, and is already linked to inflation. If the proposed federal increase is adopted, the national minimum wage would surpass and replace Florida’s.
Such an increase would raise the annual pay for a full-time minimum wage employee from about $15,000 to $20,000, according to the Economic Policy Institute. This would put an extra $100 a week in the pockets of the 20 million Americans who earn minimum wage.
The most common argument in support of the measure is to compensate those at the lower end of the pay scale more for their work so that they have money to spend, thus increasing demand for goods and services. The money spent on higher wages for the poor would immediately “recirculate back into our economy,” said Eric Brakken, director of 1Miami, a collection of community groups that organized the rally.
Opponents of the proposal say that increasing the minimum wage would make it harder to create jobs in an economy where unemployment is still uncomfortably high. If workers must be paid more, fewer might be hired, they say.
Brakken dismissed this argument, saying that economists should be concerned with the quality of jobs that are created, not just the number of positions. Many of the janitors and other low-wage workers at the rally on Tuesday told stories of losing their full-time jobs with benefits so that companies could take on more part-time workers who would cost employers less.
Edgerson, the veteran, said if the minimum wage were increased, it would help him buy the basics for his young family. At the top of his list is a driver’s license, which will cost him $250 since he was fined for not having the car insurance he couldn’t afford. Without a driver’s license, he has little chance of getting a better job, and he has to work for Walmart for a full year before he can be hired full time
“It’s frustrating that I don’t get paid much for my hard work,” he said. “I like to help people, and they appreciate the customer service. But the company, they don’t appreciate the work I do for them. . . . If I were not out there, they wouldn’t make their money.”
Read more here: http://www.miamiherald.com/2012/07/24/2910776/workers-rally-in-downtown-miami.html#storylink=cpy
Florida Unemployment Benefits: Not What They Use To Be
To contact us Click HERE
Herald/Times Tallahassee Bureau
When 65-year-old Raymond Togyer isn’t polishing his resume or cold calling potential employers, he’s spending hours trying, unsuccessfully, to navigate Florida’s labyrinthine unemployment compensation system.Togyer — who was laid off for the first time in his adult life from a high-paying civil engineering job in June — has spent the last seven weeks sending and resending letters, staying on hold for hours and checking state websites, all to no avail.
He is one of hundreds of thousands of out-of-work Floridians flummoxed by what has become the most tightfisted unemployment compensation system in the nation.
“They told me that I was eligible and that I was going to be getting $275 a week,” said the Togyer, of Fort Lauderdale . “That was seven weeks ago. To this day I have not received anything. I’m draining my savings to pay my bills.”
Critics say Gov. Rick Scott and Florida’s Legislature are behind a multipronged effort to restrict payments to eligible Floridians. A required 45-question “skills review” and an online-only application system have combined to restrict thousands of applicants from receiving aid. The U.S. Labor Department is investigating the complaints. A spokesman told the Herald/Times that Florida is cooperating with their inquiry, but they would not comment further.
Scott’s office did not respond to a request for comment, but in the past he has touted the required 45-question “skills review” as a commonsense reform intended to create a more skilled workforce.
Whatever the intention, the impact is clear: Hundreds of thousands of unemployed Floridians have been cut off from a safety net system for those who find themselves suddenly without income.
Florida’s “recipiency rate” — the proportion of unemployed people who actually receive jobless benefits— is 16 percent, the country’s lowest. Only one in three applicants for unemployment compensation in Florida receives any money, ranking the state dead last among the 50 states.
“The cumulative impact of these changes is that the process of filing an initial claim for benefits is much more difficult for the average Floridian,” the National Employment Law Project wrote in a recent complaint to U.S. Labor Secretary Hilda Solis.
The unemployment compensation system is designed as a form of insurance that businesses pay into to help fund temporary assistance for employees who lose their jobs through no fault of their own. In Florida, the average weekly check is about $230. Currently, about 800,000 are unemployed.
Scott and the Legislature overhauled Florida’s system in 2011, adding a long list of requirements and making all applicants apply online. The law required applicants to take a 45-question skills assessment, contact five employers every week and reduced the maximum number of weeks from 26 to 23.
Scott pushed more changes this year, rebranding the program as Reemployment Assistance and cutting the business taxes that fund the program by $800 million over three years.
The program is mired in debt, and the transition has been anything but smooth.
Frustrated applicants complain of misinformation on the state’s website and customer service phone lines that can be tied up for days on end.
A Herald/Times reporter tried several times over the course of a week to reach the state’s customer service department for jobless claims. Several times an automated message said, “We are currently experiencing high call volumes. An agent is not available at this time,” and then the line went dead.
On one occasion, the recorded voice said: “There are currently 399 calls in front of you.”
James Miller, a spokesperson for the Department of Economic Opportunity, said tied-up phone lines are not a problem, and the average hold time is about seven or eight minutes.
“We have no record of any delays or problems with distributing Reemployment Assistance payments to claimants,” he said. “We also are not aware of any issues with the 800 claim line.”
Togyer said he has spent nearly two months trying to get someone to tell him what is going on with his application for assistance.
He applied online shortly after being laid off from his position with Shah, Drotos & Associates, a Pompano Beach engineering consultancy. He was told he was eligible for about $275 per week, and waited patiently for his first check. After three weeks, there was no check and he tried to call DEO to find out about the day. It took him several days to reach an agent, who then informed him that he was required to fill out a 45-question skills assessment to measure his skills.
Togyer said he saw nothing about a skills test while he was applying, and received no warning that his application was incomplete. He has now completed the skills review, but has yet to receive a single payment, he said.
“I’ve been paying into it for 37 years. This is the first time I claim unemployment and they’re giving me a big runaround,” said Togyer, who recently began collecting Social Security benefits. “They’re treating me like I’m an illegal alien or something.”
Scott regularly touts the drop in the number of people receiving unemployment benefits as evidence that Florida’s economy is improving.
“The number of people on unemployment has gone from 568,000 to 320,000 people,” he said this month at a gathering of conservatives in Jacksonville.
What he doesn’t mention is federal data showing that more than 250,000 Floridians have been kicked out of the program during Scott’s tenure, because their benefits ran out.
Hundreds of thousands of additional applicants have been denied access to benefits, because they did not meet strict new requirements that Scott signed into law.
Meanwhile, job creation in Florida continues to lag behind the national pace, countering Scott’s argument that the Sunshine State is a beacon of economic growth and dependency on unemployment benefits is falling as a result.
With slowing job creation numbers, Scott has pivoted to highlighting the shrinking unemployment compensation rolls. Though the decline in the number of people receiving unemployment checks is clearly not an accurate barometer of job creation, Scott may point to such numbers during high profile appearances at the Republican National Convention next week.
“I’m pretty consistent in what I talk about every day,” Scott said this month, indicating that he would not veer from his standard talking points during the convention. “I want to make sure people can get a job in Florida.”
Roberta May, 50, of Palm Harbor, has been trying for two months to add herself to the state’s unemployment compensation rolls. After her customer service job in Oldsmar was shipped to the Philippines in June, she immediately applied for jobless benefits.
She said her file got passed along to an adjudicator who would not return her phone calls.
After spending hours on hold and sending several unanswered emails to DEO to find out about the application, May learned Tuesday that her file had been passed on to another adjudicator who was starting over from scratch.
“They’ve lost all the information they had a month ago,” she said.
The processing delays and understaffed phone lines come at a time when Florida’s unemployment insurance program is deeply in the red. Because the demand for benefits has outpaced the revenue coming in from business taxes, Florida has had to borrow more than $2.7 billion from the federal government. That debt load increased this year when the Legislature approved $800 million in tax cuts on the businesses taxes that fund the program.
May is in debt as well. She has run through her savings and has had to borrow money from her parents and her boyfriend to stave off homelessness.
“I would’ve just been out on the street if I didn’t have help from the parents,” she said, fighting back tears. “You know these days, with everybody struggling, it doesn’t take much.”
Getting an unemployment check in Florida is frustrating ordeal for many
By Toluse OlorunnipaHerald/Times Tallahassee Bureau
When 65-year-old Raymond Togyer isn’t polishing his resume or cold calling potential employers, he’s spending hours trying, unsuccessfully, to navigate Florida’s labyrinthine unemployment compensation system.Togyer — who was laid off for the first time in his adult life from a high-paying civil engineering job in June — has spent the last seven weeks sending and resending letters, staying on hold for hours and checking state websites, all to no avail.
He is one of hundreds of thousands of out-of-work Floridians flummoxed by what has become the most tightfisted unemployment compensation system in the nation.
“They told me that I was eligible and that I was going to be getting $275 a week,” said the Togyer, of Fort Lauderdale . “That was seven weeks ago. To this day I have not received anything. I’m draining my savings to pay my bills.”
Critics say Gov. Rick Scott and Florida’s Legislature are behind a multipronged effort to restrict payments to eligible Floridians. A required 45-question “skills review” and an online-only application system have combined to restrict thousands of applicants from receiving aid. The U.S. Labor Department is investigating the complaints. A spokesman told the Herald/Times that Florida is cooperating with their inquiry, but they would not comment further.
Scott’s office did not respond to a request for comment, but in the past he has touted the required 45-question “skills review” as a commonsense reform intended to create a more skilled workforce.
Whatever the intention, the impact is clear: Hundreds of thousands of unemployed Floridians have been cut off from a safety net system for those who find themselves suddenly without income.
Florida’s “recipiency rate” — the proportion of unemployed people who actually receive jobless benefits— is 16 percent, the country’s lowest. Only one in three applicants for unemployment compensation in Florida receives any money, ranking the state dead last among the 50 states.
“The cumulative impact of these changes is that the process of filing an initial claim for benefits is much more difficult for the average Floridian,” the National Employment Law Project wrote in a recent complaint to U.S. Labor Secretary Hilda Solis.
The unemployment compensation system is designed as a form of insurance that businesses pay into to help fund temporary assistance for employees who lose their jobs through no fault of their own. In Florida, the average weekly check is about $230. Currently, about 800,000 are unemployed.
Scott and the Legislature overhauled Florida’s system in 2011, adding a long list of requirements and making all applicants apply online. The law required applicants to take a 45-question skills assessment, contact five employers every week and reduced the maximum number of weeks from 26 to 23.
Scott pushed more changes this year, rebranding the program as Reemployment Assistance and cutting the business taxes that fund the program by $800 million over three years.
The program is mired in debt, and the transition has been anything but smooth.
Frustrated applicants complain of misinformation on the state’s website and customer service phone lines that can be tied up for days on end.
A Herald/Times reporter tried several times over the course of a week to reach the state’s customer service department for jobless claims. Several times an automated message said, “We are currently experiencing high call volumes. An agent is not available at this time,” and then the line went dead.
On one occasion, the recorded voice said: “There are currently 399 calls in front of you.”
James Miller, a spokesperson for the Department of Economic Opportunity, said tied-up phone lines are not a problem, and the average hold time is about seven or eight minutes.
“We have no record of any delays or problems with distributing Reemployment Assistance payments to claimants,” he said. “We also are not aware of any issues with the 800 claim line.”
Togyer said he has spent nearly two months trying to get someone to tell him what is going on with his application for assistance.
He applied online shortly after being laid off from his position with Shah, Drotos & Associates, a Pompano Beach engineering consultancy. He was told he was eligible for about $275 per week, and waited patiently for his first check. After three weeks, there was no check and he tried to call DEO to find out about the day. It took him several days to reach an agent, who then informed him that he was required to fill out a 45-question skills assessment to measure his skills.
Togyer said he saw nothing about a skills test while he was applying, and received no warning that his application was incomplete. He has now completed the skills review, but has yet to receive a single payment, he said.
“I’ve been paying into it for 37 years. This is the first time I claim unemployment and they’re giving me a big runaround,” said Togyer, who recently began collecting Social Security benefits. “They’re treating me like I’m an illegal alien or something.”
Scott regularly touts the drop in the number of people receiving unemployment benefits as evidence that Florida’s economy is improving.
“The number of people on unemployment has gone from 568,000 to 320,000 people,” he said this month at a gathering of conservatives in Jacksonville.
What he doesn’t mention is federal data showing that more than 250,000 Floridians have been kicked out of the program during Scott’s tenure, because their benefits ran out.
Hundreds of thousands of additional applicants have been denied access to benefits, because they did not meet strict new requirements that Scott signed into law.
Meanwhile, job creation in Florida continues to lag behind the national pace, countering Scott’s argument that the Sunshine State is a beacon of economic growth and dependency on unemployment benefits is falling as a result.
With slowing job creation numbers, Scott has pivoted to highlighting the shrinking unemployment compensation rolls. Though the decline in the number of people receiving unemployment checks is clearly not an accurate barometer of job creation, Scott may point to such numbers during high profile appearances at the Republican National Convention next week.
“I’m pretty consistent in what I talk about every day,” Scott said this month, indicating that he would not veer from his standard talking points during the convention. “I want to make sure people can get a job in Florida.”
Roberta May, 50, of Palm Harbor, has been trying for two months to add herself to the state’s unemployment compensation rolls. After her customer service job in Oldsmar was shipped to the Philippines in June, she immediately applied for jobless benefits.
She said her file got passed along to an adjudicator who would not return her phone calls.
After spending hours on hold and sending several unanswered emails to DEO to find out about the application, May learned Tuesday that her file had been passed on to another adjudicator who was starting over from scratch.
“They’ve lost all the information they had a month ago,” she said.
The processing delays and understaffed phone lines come at a time when Florida’s unemployment insurance program is deeply in the red. Because the demand for benefits has outpaced the revenue coming in from business taxes, Florida has had to borrow more than $2.7 billion from the federal government. That debt load increased this year when the Legislature approved $800 million in tax cuts on the businesses taxes that fund the program.
May is in debt as well. She has run through her savings and has had to borrow money from her parents and her boyfriend to stave off homelessness.
“I would’ve just been out on the street if I didn’t have help from the parents,” she said, fighting back tears. “You know these days, with everybody struggling, it doesn’t take much.”
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