Archive for the ‘Philip Onorato’ Category
Sponsors of supportive housing offering clinical and social services components, group homes and other providers are under scrutiny for unduly, or even illegally manipulating clients in order to sway elections. Such claims bring to light this subtle form of disenfranchisement, and the manner in which developmentally disabled persons may be exploited, manipulated, stripped of their fundamental dignity by others seeking a political agenda.
In the midst of this election season, providers of services and housing for the developmentally disabled are reminded of the right of those individuals to vote. Beyond emotional provocation, the individuals’ right to vote raises rather interesting legal and public policy issues. Federal law, including the Americans with Disabilities Act, protects the right of developmentally disabled persons to vote. No eligible American should face disenfranchisement. Yet, states are authorized to enact local legislation affecting voting rights of such individuals. May a person’s developmental disability be such that the person is not “capable” of voting? What does “capable” mean? States (the State of Missouri, for example) that have tried to restrict or deny voting rights to developmentally disabled persons have been challenged.
New York State’s statutes affirm the rights of developmentally and similarly disabled individuals to vote. However, reports have emerged that developmentally disabled persons, and similarly vulnerable individuals, have been influenced to vote in favor of a particular party or candidate. Thus the issue of concern for providers goes beyond, “do such individuals have the right to vote?”, to, “Is the right of such individuals being influenced or even impaired?”.
Providers should support and facilitate their clients’ opportunity to vote. Assistance may include encouraging clients to vote, explaining the voting process and escorting clients to the polls. At the same time, providers are advised to exercise caution in doing so. Providers must avoid conduct, such as advocating or preparing absentee ballots, that may be construed as improper. Please consult with legal counsel or organizations such as, “Autism Speaks” and “NYS Association of Community and Residential Agencies”, for further guidance.
Written by Philip J. Onorato
Arrangements whereby custodians, porters and other types of employees occupy apartments at buildings where they perform services are legal, indeed common. Buildings and management must take heed that appropriate tax filings are performed, particularly in case in which occupancy comprises all or part of the compensation package afforded to employees who perform services for the building. What happens, however, when the services cease because, for example, the employees is terminated, resigns or passes away? Can you evict the former employee?
The answer to the question above depends in large part upon the nature of the relationship between the occupancy and the employment. If the occupancy is incidental to the employment, then there is no landlord-tenant relationship and the occupancy ends upon termination of employment. In this case, the owner or managing agent may pursue eviction if the former employee does not vacate voluntarily. In contrast, if a landlord-tenant relationship exists independently of employment, then absent other causes, the employee is entitled to remain in possession despite termination of employment.
How does an owner or managing agent know whether the former employee must vacate or not? Courts have looked to the following factors, among others:
Did the employee occupy the apartment before his or her employment commenced?
Does the occupancy constitute part of the employee’s compensation package, or is rent deducted from the employee’s payroll?
Did the parties agree that occupancy ends upon the termination of employment?
In addition, many who serve and reside in buildings are employees of the managing agents. If such employees may they nevertheless retain their apartments at the building itself? The answer is not so clear given mixed conflicting precedent from the Courts.
Regaining possession of the apartment is also subject to whether termination of the employee is legal. A discharged employee may pursue a grievance with his or her union, or commence litigation based upon allegations of employment discrimination or other types of wrongful discharge. Such proceedings will suspend efforts to evict the employee. An employee who is ultimately found to have been wrongfully terminated will likely be able to retain employment and retain possession of his or her apartment.
The foregoing presents just the basic questions management and boards of directors must consider in treating building employees. With over twenty years in landlord and tenant, employment and labor and various other types of commercial litigation, attorneys at Goldstein Hall PLLC are fully equipped to provide you advice and counsel and, if need be, representation in litigation should the need arise. We invite you to call upon us.
Written by: Philip J. Onorato, Member
Not-for-profit corporations play an essential and integral role in providing a vast variety of social services in the State of New York. These organizations afford opportunity to those in need of medical care, affordable and supportive housing and substance abuse treatment among other services. Such organizations depend wholly or in large part upon public funds in the form of grants, tax credits and other similar mechanisms. Such resources are indeed scarce, particularly in the current economic climate. Therefore, many individuals who serve in such organizations do so in return for compensation that is generally below that which they may receive in the private sector.
The not-for-profit model is, however, vulnerable to abuse. A recent article by the New York Times reported that two managers of a New York based not-for-profit organization each received close to $1 million in annual compensation. They also used the organization’s resources to fund their children’s’ education. FN. In light of such abuse, and concern for the protection of public resources, Governor Andrew M. Cuomo announced in August his creation of a new task force to investigate compensation levels and compensation practices at not-for-profit corporations that rely on taxpayer resources for their operation: “Not-for-profits that provide services to the poor and the needy have a special obligation to the taxpayers that support them”.
Among the first efforts by the Task Force is the issuance of a 5-page letter addressed and forwarded to the Boards of Directors of approximately 600 not-for-profit organizations. Following a brief, one paragraph introduction, the letter sets forth the Task Force’s request for the production of information relating to the organization’s compensation levels and policies in general and, in particular, information relating to management and board members who receive in excess of $100,000 annually. The demand seeks information that goes beyond the scope of information required by the form 990 that is filed by not-for-profit organizations with the office of the Attorney General each year. It is also interesting to note that the letter is addressed to Boards of Directors, as opposed to financial officers and other managers who devise and administer the organization’s compensation practice. By doing so, the Task Force seeks to elicit greater attention from Boards, and to avoid the potential for conflict inherent in seeking information from those who stand to benefit from it. The letter does not provide for sanctions or other consequences that an organization may suffer should it fail to comply. Nor does the letter specify whether information regarding the organization’s response or failure to respond may be reported to other, funding and regulatory, agencies that influence the organization’s operation.
Predictably, the Task Force and its mission are not without their detractors. Adam Kirkman, director of technical assistance for CARES, Inc., a not-for-profit organization that assists people in locating affordable housing, disagrees with the timing of a task force in this economic climate. He is quoted as saying: “It seemed like a slap in the face to agencies that are doing difficult and important work”. Despite such sentiment, the work of the Task Force is well under way. The first round of letters, approximately 600, were addressed primarily to not-for-profits, large and small, that offer health and welfare services. In the event of a subsequent round of inquiries, the scope of inquiry may indeed expand to other areas such as the affordable and supportive housing industries, among others. Given the sensitive and technical nature of the inquiry, and the potential consequences for failing to properly reply, it is advisable for organizations that receive the notices to consult with their legal counsel to assure complete full cooperation and compliance.
1. New York Times, August 25, 2011
Written by: Philip J. Onorato, Member