Albany Law School to host lecture on Government Ethics

 

The State of Government Ethics and Oversight in New York November 3, 2025 5:30 PM to 7:30 PM CLE registration and seating begin at 5:00 PM   Dean Alexander Moot Court Room (421) 1928 Building - 4th Floor Albany Law School 80 New Scotland Avenue Albany, NY 12208 Join the Government Law Center at Albany Law School for the launch of the annual Mark Glaser ’76 Lecture on Government Ethics, featuring New York State Inspector General Lucy Lang in dialogue with Government Law Center Director Patrick Wildes ’16.   This free event is open to the public and includes a reception following the program. Remote participation will be available for those unable to attend in person.   Continuing Legal Education (CLE) Credits Pending [1.0 Ethics and Professionalism]. Click to Register

Key elements considered by the Commissioner of Education in adjudicating an appeal challenging the suspension of a student involved in an altercation with another student at school while school was in session

The Decision of the Commissioner of Education in this appeal challenging the disciplinary action taken against a student initiated by the school district and the penalty imposed on a student upon being found guilty of misconduct while attending school noted that:

1. A school district's decision to suspend a student from school pursuant to Education Law §3214 must be based on competent and substantial evidence that the accused student participated in the "objectionable conduct". 

2. In an appeal to the Commissioner of Education the petitioner has the burden of demonstrating a clear legal right to the relief requested and has the burden of establishing the facts supporting the relief sought by the petitioner; and 

3. The school district must present "Competent and substantial evidence of the accused [student’s] guilt" supporting its determination and the penalty imposed.

Based on the record, the Commissioner found that Petitioners in the instant appeal failed to establish that school district lacked competent and substantial evidence of the student's guilt of the misconduct charged.  

The text of the Commissioner's decision in the instant matter is set out below:

Decisions of the Commissioner of Education

Appeal of J.C. and C.C., on behalf of their child, from action of the Board of Education of the Cold Spring Harbor Central School District regarding student discipline.

Decision No. 18,639

(September 29, 2025)

Frazer & Feldman, LLP, attorneys for respondent, Amanda Hickey, Esq., of counsel

ROSA., Commissioner. -- Petitioners challenge the determination of the Board of Education of the Cold Spring Harbor Central School District (“board” or “respondent”) to suspend their child (“student A”).  The appeal must be dismissed.

On May 31, 2024, student A and a classmate (“student B”) were involved in a physical altercation.  A security guard intervened and escorted both students to the principal’s office.  Soon thereafter, student A, stated, unprompted that he had “just beat the s*** out of” student B and “couldn’t be happier” about it.  The principal proceeded to interview student B, who stated that student A began “swinging” at him as he left the cafeteria.  The principal also reviewed security footage showing that student A confronted, and initiated an altercation with, student B.  Student A declined to speak to the principal about the incident unless petitioners were present.  Although petitioners arrived soon thereafter, Student A did not provide any further information regarding his role in the altercation.

In a letter dated May 31, 2024, the principal concluded that student A’s presence in school represented a continuing danger and/or an ongoing threat of disruption to the academic process and suspended him for five days.  This letter was hand-delivered to petitioners’ home that same day.  Appeals to the superintendent and board were denied, and this appeal ensued.

Petitioners argue that respondent failed to amend student A’s educational plan pursuant to Section 504 of the Rehabilitation Act (“Section 504”) to protect him from ongoing harassment from student B.  Petitioners further assert that student A, who they claim was the victim of longstanding bullying by student B, acted in self-defense.  Petitioners also allege, among other due process violations, that respondent wrongfully withheld security footage of the altercation.  For relief, petitioners seek expungement of the short-term suspension from student A’s record.

Respondent argues that the Commissioner lacks jurisdiction to review petitioners’ Section 504 claims.  On the merits, respondent denies that it violated student A’s due process rights or that he acted in self-defense.  Respondent further contends that its decision to suspend student A was based on competent and substantial evidence.

I must first address three preliminary matters.  I lack jurisdiction over those portions of petitioners’ appeal claiming that respondent failed to amend student A’s Section 504 plan to protect against student B’s alleged bullying.  Section 504 prohibits discrimination against individuals with disabilities who are “excluded from ... participation in, ... denied the benefits of, or ... subjected to discrimination under any program or activity receiving Federal financial assistance,” which includes public schools (29 USC §794 [a]).  The Commissioner of Education has no authority to review Section 504 claims in an appeal under Education Law §310 (Appeal of J.B., 62 Ed Dept Rep., Decision No. 18,245; Appeal of K.V., 61 id., Decision No. 18,067).[1]

Next, I must address the scope of petitioners’ reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Third, petitioners request that I accept numerous submissions into the record pursuant to 8 NYCRR 276.5.  That provision authorizes the acceptance of additional evidence submitted by a party if the Commissioner deems it necessary to render a decision.  Here, petitioners seek to bolster their contention that the student was bullied and acted in self-defense.  This evidence, however, should have been submitted with the petition or reply (Appeal of R.H. and S.H., 60 Ed Dept Rep, Decision No. 17,869; Appeal of Nappi, 57 id., Decision No. 17,300).  To the extent that these submissions also contain evidence that post-dates the pleadings, such evidence is not relevant to the claims presented herein.  Accordingly, I decline to accept the additional evidence submitted by petitioners.

Turning to the merits, the decision to suspend a student from school pursuant to Education Law §3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Matter of Board of Educ. of Monticello Cent. School Dist. v Commissioner of Educ., 91 NY2d 133, 140-141 [1997]; Matter of Board of Educ. of City School Dist. of City of N.Y. v Mills, 293 AD2d 37, 39 [3d Dept 2002]; Appeal of M.J., 57 Ed Dept Rep, Decision No. 17,292; Appeal of B.M., 48 id. 441, Decision No. 15,909).  The Court of Appeals has described the substantial evidence standard as “proof within the whole record of such quality and quantity as to generate conviction in and persuade a fair and detached fact finder that, from that proof as a premise, a conclusion or ultimate fact may be extracted reasonably probatively and logically” (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181 [1978]; see Appeal of J.J., 46 Ed Dept Rep 270, Decision No. 15,505; Appeal of Wallen, 33 id. 313, Decision No. 13,060).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Turning first to petitioners’ due process claims, petitioners contend that respondent denied their district-level appeal “without explanation,” in an untimely manner, and without adequate investigation.  The record establishes that respondent complied with its own policy in issuing written determinations to petitioners after each level of review.  Moreover, respondent’s policy does not require that the board meet with petitioners, interview witnesses, or provide a written determination to petitioners within a certain timeframe.  Accordingly, petitioners’ procedural challenges to respondent’s internal review process are without merit.

Petitioners have also failed to establish that respondent lacked competent and substantial evidence of the student’s guilt.  During its investigation, respondent obtained a witness statement from student B, reviewed security footage of the altercation, and spoke to the security guard who broke up the altercation.  Most notably, respondent relied upon student A’s unprompted utterance that he “beat the s*** out of” student B.  Where a student admits the charged conduct, the admission is sufficient proof of guilt (Appeal of N.S., 57 Ed Dept Rep, Decision No. 17,268; Appeal of S.U., 57 id., Decision No. 17,159; Appeal of M.K., 48 id. 462, Decision No. 15,916).  Based on this evidence, I find that respondent’s determination was based upon competent and substantial evidence (Appeal of F.P., 64 Ed Dept Rep, Decision No. 18,525).

Petitioners further contend that student A’s actions were justified on the ground of self-defense.  Students may not be disciplined for engaging in conduct necessary to protect themselves from attack, including proportionate force if necessary (See e.g. Appeal of A.C., 59 Ed Dept Rep, Decision No. 17,799; Appeal of G.J.-F., 58 id., Decision No. 17,608; Appeal of J.M., 57 id., Decision No. 17,335).  Petitioners have not submitted any direct evidence from student A, or any other persuasive evidence, demonstrating that the student acted in self-defense (Appeal of G.J.-F., 58 Ed Dept Rep, Decision No. 17,608; Appeal of a Student with a Disability, 49 id. 452, Decision No. 16,079).  While petitioners’ appeal to the board contained a lengthy narrative attributed to student A, this statement is uncorroborated hearsay entitled to minimal probative value.  Additionally, while petitioners claim to possess “dispositive student video footage of the brawl,” they have not submitted any such evidence on appeal.[2]  Thus, petitioners have failed to meet their burden of proving that student B initiated the altercation or that student A acted in self-defense (Appeal of G.J.-F., 58 Ed Dept Rep, Decision No. 17,608).[3]

Petitioners also argue that student A’s conduct was justified as he had been previously bullied and harassed by student B.  The Commissioner has previously held that bullying or harassment does not affect a student’s guilt in a disciplinary matter (Appeal of J.M., 60 Ed Dept Rep, Decision No. 18,002).  However, “respondent has an ongoing obligation to address all incidents of bullying and harassment” (Appeal of M.C. and T.H., 64 Ed Dept Rep, Decision No. 18,550).  Thus, if it has not already, respondent must investigate petitioners’ claims presented herein pursuant to the Dignity for all Students Act.  If respondent concludes that student A was bullied or harassed, “nothing would preclude respondent … from expunging [the instant] suspension … as a remedy ‘reasonably calculated to end the harassment, bullying, and/or discrimination, eliminate any hostile environment, create a more positive school culture and climate [or] prevent recurrence of the behavior’” (Appeal of J.M., 60 Ed Dept Rep, Decision No. 18,002, quoting Education Law §13 [1] [e]).

Finally, even assuming that respondent wrongfully refused to allow petitioners to view the district’s surveillance footage of the altercation, this constitutes harmless error under the circumstances.  As indicated above, respondent possessed competent and substantial evidence of the student’s guilt, including student A’s unprompted admission that he “beat the s***” out of student B.  Moreover, the surveillance video, which I have obtained and reviewed in camera, does not support petitioners’ claim of self-defense.  Thus, even if petitioners had a right to view the footage, it would not affect the outcome of this appeal.[4]

To the extent they are not addressed herein, I have considered petitioners’ remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

[1] I note that Section 504 claims alleging a denial of a free appropriate public education are subject to the Individual with Disabilities Education Act (“IDEA”) exhaustion procedures (20 USC §1415 [l]; see L.K. v Sewanhaka Cent. High Sch. Dist., 641 Fed Appx 56 [2d Cir 2016]).

[2] In their reply, petitioner submitted social media and text message conversations from students as well as still images of the confrontation from an unidentified videographer.  While I have not accepted this evidence into the record for the reasons articulated above, it would not, if accepted, prove that student A acted in self-defense. 

[3] I further note that student A did not allege that he acted in self-defense when he met with the principal. 

[4] The United States Department of Education has opined that a video recording maintained by a school district for disciplinary purposes constitutes an education record under the Family Education Rights & Privacy Act (U.S. Dept. of Education, “FAQs on Photos and Videos under FERPA,” https://studentprivacy.ed.gov/faq/faqs-photos-and-videos-under-ferpa(link is external) [last accessed Aug. 27, 2025]; see also U.S. Dept. of Education, Student Privacy Policy Office, Letter to Wachter, Dec. 7, 2017, available at https://studentprivacy.ed.gov/resources/letter-wachter-regarding-surveillance-video-multiple-students(link is external) [last accessed Sept. 18, 2025] and N.Y. State Educ. Dept. Privacy Office, Matter of a Privacy Complaint filed against the Shenendehowa Cent. Sch. Dist, Jul. 28, 2022, https://www.nysed.gov/sites/default/files/final-determination-7.28.22-_redacted.pdf [last accessed Sept. 18, 2025]).  Therefore, if parents request access to such a video, they must be provided with the opportunity to inspect and review, or be informed of the contents of, the video (20 USC § 1232g [a] [1] [A]; 34 CFR 99.12 [a]).
(link is external [last accessed Aug. 27, 2025]; see also U.S. Dept. of Education, Student Privacy Policy Office, Letter to Wachter, Dec. 7, 2017, available at https://studentprivacy.ed.gov/resources/letter-wachter-regarding-surveillance-video-multiple-students(link is external)[last accessed Sept. 18, 2025] and N.Y. State Educ. Dept. Privacy Office, Matter of a Privacy Complaint filed against the Shenendehowa Cent. Sch. Dist, Jul. 28, 2022,  https://www.nysed.gov/sites/default/files/final-determination-7.28.22-_redacted.pdf [last accessed Sept. 18, 2025]).  Therefore, if parents request access to such a video, they must be provided with the opportunity to inspect and review, or be informed of the contents of, the video (20 USC §1232g [a] [1] [A]; 34 CFR 99.12 [a]).

Click HERE to access the Decision of the Commissioner Education No. 18,639 posted on the Internet.

Quinn Rapp-Ellis appointed General Counsel of the New York State Department of Labor.

On October 14, 2025, NYS Workers’ Compensation Board Chair Freida D. Foster announced the appointment of Quinn Rapp-Ellis as General Counsel, effective immediately. 

Quinn previously worked within the Board’s Office of General Counsel (OGC) for over six years, before joining the Executive Chamber in 2022 as Assistant Secretary for Labor and Workforce. At the Chamber, Quinn has been both a strong advocate and advisor for the Board, playing a critical role in key initiatives, including the recent legislative changes to improve injured workers’ access to care as part of Governor Hochul’s Fiscal Year 2026 Enacted Budget.

Quinn first joined the Board through the Governor’s Excelsior Service Fellowship program, which brings highly talented recent graduates of law, graduate, and professional schools into policy and operational roles in New York State  government.

While at the Board, Quinn has served as a Senior Attorney within OGC, working on a wide range of legislative and other initiatives, including the 2020 Expanded Provider Law and establishing precedent for permitting and reimbursing treatment with medical marijuana within the State workers’ compensation system. Quinn also served as the Board’s Director of NYS Paid Family Leave, helping the agency successfully implement and administer the program through its four-year phase-in in close coordination with more than 15 other New York State agencies. As part of this work, Quinn traveled the state giving presentations and had the opportunity to brief the UN Foreign Press about Paid Family Leave alongside then-Lieutenant Governor Kathy Hochul.

Quinn holds a Juris Doctor from New York Law School, a Master of Arts in Forensic Psychology and Law from John Jay College, and a Bachelor of Science from Rensselaer Polytechnic Institute.

NYS Workers’ Compensation Board Chair Freida D. Foster said, “Quinn’s passion for public service, deep knowledge, and drive for positive change will be incredibly valuable in the role of General Counsel. We are fortunate to welcome her back.”

NYS Workers’ Compensation Board Executive Director, Steven Scotti said, “With her strong legal analytical skillset, political acumen, and proactive management style, Quinn is well positioned to provide legal leadership and continuity to the Board.”

The Chair and Executive Director also expressed thanks to Keith Longden, who has served as Acting General Counsel for the past six months. “Keith’s deep expertise in the law and his Board experience are huge assets to OGC and the Board overall, and we appreciate his insights and valuable contributions,” said Steven Scotti. “With Quinn’s appointment, Keith will resume his role as Deputy General Counsel and continue to play a critical role on the team.”

Seeking to recover damages for alleged wrongful termination and being subjected to alleged defamation

In this action the plaintiff [Petitioner] sought to recover damages for:

1. His alleged wrongful termination from employment by the Defendant; and 

2. For alleged defamatory statements uttered by the Defendant concerning the Petitioner.

The Defendants appealed Supreme Court's denial of Defendants' motion pursuant to CPLR 3211(a) to dismiss the Petitioner's amended complaint. 

The Appellate Division modified, on the law, those provisions set out in the Supreme Court's ruling which denied:

[a] Defendants' motion pursuant to CPLR 3211(a) to dismiss the causes of action alleging violations of Labor Law §§193 and 215 and 42 USC §1983;

[b] Defendants' motion to dismiss the alleged defamatory statements it made  concerning Petitioner; and 

[c] Defendants' motion to dismiss allegations of "Intentional and willful conduct".

The Appellate Division, however, found that, contrary to the Defendants' contention, the Petitioner's allegations in his amended complaint were sufficient to state a cause of action alleging a violation of Civil Service Law §75-b, which section provides that an adverse employment action may not be taken against a public employee based upon his or her disclosure of information which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action"

In the instant action, said the Appellate Division, Plaintiff alleged that he had investigated "discrepancies and inconsistencies in the activities and financial reports" of the Defendants and that he began experiencing hostility from the [Defendants] after he disclosed his findings to the District's former commissioner. Plaintiff also alleged that he was terminated from his employment with Defendants because of his disclosure of his findings. 

The Appellate Division found that the Petitioner's amended complaint "sufficiently states a cause of action for a violation of Civil Service Law §75-b against the [Defendants]."

However, in it decision the Appellate Division noted that at the time this action was commenced the statute of limitations for filing a Civil Service Law §75-b cause of action was one year. As Plaintiff commenced this action on March 9, 2021, only so much of the cause of action as related to the District's alleged retaliatory act of terminating the Plaintiff's employment on March 13, 2020, could be considered timely. 

Contrary to the Plaintiff's contention, Executive Order (A. Cuomo No. 202.8 (9 NYCRR 8.202.8) the Appellate Division found that Executive Order did not toll the running of the statute of limitations with respect to claims of alleged adverse employment actions that occurred in 2014 and 2018, as the statute of limitations for those claims had already expired prior to the issuance of the Executive Order. In addition, the Appellate Division noted that Plaintiff's Civil Service Law §75-b cause of action against the non-district Defendants was subject to dismissal pursuant to CPLR 3211(a)(7).

As to other determination by the Supreme Court, the Appellate Division noted that although Labor Law §215 "provides that no employer shall discharge, threaten, penalize, or in any other manner discriminate . . . against any employee because such employee has made a complaint to his or her employer . . . that the employer has engaged in conduct that the employee, reasonably and in good faith, believes violates any provision of this chapter, or any order issued by the commissioner", the Labor Law §215 does "not apply to employees of the state or any municipal subdivisions or departments thereof". 

In addition, the Appellate Division noted that although the contention that Labor Law §215 does not apply to Plaintiff was raised for the first time on appeal, it had considered this issue in its ruling "because it presents a pure question of law that appears on the face of the record and could not have been avoided if raised at the proper juncture."

Addressing Plaintiff's cause of action for alleged defamation, the Appellate Division, citing Greenberg v Spitzer, 155 AD3d 27, explained that "The elements of a cause of action for defamation are (a) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (b) published without privilege or authorization to a third party, (c) amounting to fault as judged by, at a minimum, a negligence standard, and (d) either causing special harm or constituting defamation per se". 

The Appellate Division's decision, citing Laguerre v Maurice, 192 AD3d 44), notes that a statement is defamatory per se if it, among other things, "charges the plaintiff with a serious crime" or "tends to injure the plaintiff in her or his trade, business, or profession" .

In its decision the Appellate Division also notes that:

1. "CPLR 3016(a) requires that [i]n an action for libel or slander, the particular words complained of shall be set forth in the complaint" and compliance with this requirement is "strictly enforced";

2. "[A] cause of action sounding in defamation which fails to comply with these special pleading requirements must be dismissed" [Tsamasiros v Jones, 232 AD3d 816]; and

3. "The complaint must set forth the particular words allegedly constituting defamation, and it must also allege the time when, place where, and manner in which the false statement was made, and specify to whom it was made" ( Nofal v Yousef, 228 AD3d 772).

Although Plaintiff's amended complaint set forth the Defendants' allegedly defamatory remarks, the Appellate Division observed that "it failed to set forth the place where and to whom these remarks were published". Accordingly, opined the Appellate Division, Supreme Court erred when it failed to dismiss those branches of Defendants' motion to dismiss the Petitioner's causes of action alleging defamation.

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

Selected items posted on blogs during the week ending October 1 2025

Winning the Fight Against Ransomware Ransomware is hitting state and local governments harder than ever — with escalating attacks, skyrocketing ransom demands, and evolving tactics like multi-extortion and AI-driven phishing. But the path to resilience is clear. READ MORE

3 Pillars of an Effective Government Cyber Strategy This paper outlines a practical framework based on three foundational pillars: automation, integration and consolidation. You’ll learn how agencies can reduce manual workload, connect siloed systems and build centralized defenses that work smarter, not harder. It also explores the role of AI in modern security operations and how to streamline efforts without overburdening IT teams. DOWNLOAD

Transparency in Motion: Real-Time Data for Safer Streets and Stronger Communities Public safety agencies are under pressure to do more with less -- respond faster, operate more efficiently, and remain accountable to both leadership and the communities they serve. This paper explores how telematics and in-vehicle data are helping agencies meet those expectations and deliver measurable results.  DOWNLOAD

Future-Proofing Mobility Management in the Public Sector Modernize your agency's mobile strategy with unified endpoint management. WATCH NOW 

Data Tangles & AI Wrangles: Mastering the Chaos Explore the real-world challenges IT leaders encounter when linking diverse data sources, legacy applications and modern AI tools. WATCH NOW  

Government Workforce Resilience in the Age of Efficiency Learn how forward-thinking agencies are building self-sufficient teams that maintain quality and security standards even during rapid transitions. WATCH NOW

Staying Connected When It Matters Most: Smarter, Safer Tech for First Responders AI + 5G = The Future of Public Safety. Are You Ready? See what the next generation of public safety tech looks like. WATCH NOW

Modernizing Public Asset Management: Learn how cloud-based asset management helps agencies cut costs, boost efficiency and modernize infrastructure. WATCH NOW

Secure by Design: A Plan for Ransomware Defense From real-world examples of emerging extortion tactics to actionable guidance on vulnerability scanning, 24/7 detection, and incident response planning, this paper is a must-read for every government IT leader committed to safeguarding digital infrastructure and public trust. DOWNLOAD

How Personalization is Transforming Constituent Experience In today’s digital-first environment, constituents expect government services to be as seamless, accessible, and personalized as the best consumer experiences. This paper explores how personalization is reshaping public sector engagement.  DOWNLOAD

Reskilling Your IT Team on Cloud Cloud computing has become integral to state and local government operations over the past few years. To keep pace with innovation and maximize investments in cloud technology, government organizations will need an IT team that knows how to correctly, securely and efficiently migrate existing data and processes to the cloud as well as deploy and manage cloud-native, cloud-first solutions. DOWNLOAD

Secure by Design: A Plan for Ransomware Defense From real-world examples of emerging extortion tactics to actionable guidance on vulnerability scanning, 24/7 detection, and incident response planning, this paper is a must-read for every government IT leader committed to safeguarding digital infrastructure and public trust. DOWNLOAD

How Edge Computing Expands State & Local Government AI Capabilities  This eBook explores how edge AI can empower agencies to enhance public services, optimize operational efficiency, and secure sensitive data. Explore the distinct advantages of Edge AI. DOWNLOAD

Making It Easier for Residents to Sign In and Use Digital Services Digital services are expanding, but many agencies still rely on outdated systems to manage how people sign in and access them. This white paper explains how modernizing identity and access management can help reduce fraud, cut support costs, and make online services easier and safer for everyone to use. DOWNLOAD

State Comptroller DiNapoli releases audits of certain state departments and agencies

On October 7, 2025, New York State Comptroller Thomas P. DiNapoli posted audits of certain State Departments and Agencies

Click on the Text highlighted in color to access the audit posted on the Internet

Office of General Services – Capital Asset Management (Follow-Up) (2025-F-2) New York State has a significant investment in capital assets, which the Office of General Services (OGS) considers to be any property with a significant value that is used over a long period of time. OGS established the Statewide Financial System Asset Management Module (SFS AM) to house and maintain capital asset information in a single master file, and State agency managers use it to budget, account for, and control the acquisition and disposition of the State’s capital assets. A prior audit report, issued in February 2024, found that OGS was not adequately overseeing capital assets reported by State agencies to ensure that these agencies were properly and promptly reporting capital assets. OGS has made progress in addressing the issues identified in the initial audit report. Of the report’s seven recommendations, five have been implemented and two have been partially implemented.

New York State Health Insurance Program – CVS Caremark: Effectiveness of CVS Caremark Audits of the Empire Plan Prescription Drug Program (2024-S-4) CaremarkPCS Health, L.L.C. (CVS Caremark) administers the prescription drug program for the Empire Plan, the primary health benefits plan for the New York State Health Insurance Program, administered by the Department of Civil Service (Civil Service). In accordance with Civil Service’s Pharmacy Benefit Services Contract with CVS Caremark, CVS Caremark must implement a comprehensive audit program that includes conducting on-site audits of pharmacies, providing audit reports to Civil Service and notifying Civil Service of any allegations or indications of potential fraud and abuse. The audit found that CVS Caremark audits sometimes reviewed only a minimal number of Empire Plan claims; CVS Caremark did not perform on-site audits of all the top 50 paid pharmacies for calendar years 2019–2023, as required by the Contract; and CVS Caremark has a different understanding of its responsibilities regarding the identification and referral of fraud and abuse than what is outlined in the Contract, resulting in CVS Caremark not referring any potential pharmacy fraud or abuse cases to Civil Service during the audit period.

New York Power Authority – Selected Management and Operations Practices (Follow-Up) (2024-F-15) Charge NY 2.0, a successor to the Charge NY program, aimed to install 10,000 public electric vehicle charging stations in New York State by 2021. Charge NY is a collaboration among the New York State Energy Research and Development Authority, the New York Power Authority (NYPA) and the Department of Environmental Conservation. A prior audit, issued in February 2022, found that NYPA did not place the Charge NY and Charge NY 2.0 charging stations in locations that supported the programs’ intentions and did not review and analyze usage data for charger placement or use outreach efforts to encourage electric vehicle charger installation by its customers. The installation of electric vehicle high-speed chargers was as much as 2 years behind schedule. NYPA made progress in addressing the problems identified in the initial audit report. Of the initial report’s nine audit recommendations, two were implemented, six were partially implemented and one was not implemented.

Hudson River Valley Greenway – Access Controls and Vulnerability Management (2025-S-17) The Hudson River Valley Greenway (HRVG) is responsible for managing grants with a particular emphasis on those related to planning, along with initiatives for trails, water trails and heritage development. HRVG uses an online grant platform that streamlines the entire grant process and must adhere to New York State ITS standards, policies and guidelines, including the IT standards on vulnerability management, account management and authentication. Auditors identified areas where HRVG could improve certain security controls to minimize the various risks associated with unauthorized access to its systems and data. Due to the confidential nature of the audit findings, details of these findings were communicated with three recommendations in a separate, confidential report to the HRVG officials. HRVG officials generally agreed with the findings and indicated actions to implement the recommendations.

State Education Department (Preschool Special Education Audit Initiative): The Arc Jefferson-St. Lawrence – Compliance With the Reimbursable Cost Manual (2024-S-14) The Arc Jefferson-St. Lawrence (Arc-JSLC), a not-for-profit special education provider located in Watertown, is authorized by the State Education Department (SED) to provide Preschool Special Class (over 2.5 hours per day) and Preschool Integrated Special Class (2.5 hours per day) education services to children with disabilities between the ages of 3 and 5 years. For the three fiscal years ended June 30, 2021, Arc-JSLC reported approximately $5.4 million in reimbursable costs for the SED preschool cost-based programs. Auditors identified $91,887 in reported costs that did not comply with requirements.

Purchasing membership credit in the New York City Teachers' Retirement System does not change the member's effective date of such membership in the retirement system

Supreme Court denied Petitioner's CPLR Article 78 action appealing the denial of his application for World Trade Center Retirement Benefits [WTCRB] based on his purchasing membership credit in the New York City Teachers Retirement System [NYCTRS] and dismissed the proceeding. The Appellate Division affirmed the Supreme Court's ruling without costs.

Concluding that the Supreme Court's decision was correct and had a rational basis, the Appellate Division said that the record demonstrates that Petitioner was not a member of NYCTRS until 2005, notwithstanding his purchase of prior service retirement credit. Accordingly, Petitioner was not entitled to WTCRB retirement benefits as the applicant for WTCRB must have been a member of NYCTRS on September 11, 2001.

In the words of the Appellate Division, "Petitioner provided no legal authority for his claim that his 2005 purchase of [NYCTRS] service credit backdated his [NYCTRS] membership".

The Appellate Division's decision also notes that Petitioner's activities in the vicinity of the World Trade Center on September 11, 2001 involved assisting people by providing directions on how to get home or out of Manhattan on foot. Such activities, said the Court, were not part of the World Trade Center "rescue, recovery and cleanup operations" nor were they part of his job duties as a teacher.

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

A collective bargaining agreement may provide that qualified interested employees have precedence over non-employee applicants for appointment to the position

The Town of Clarkstown and the Town's Superintendent of Highways [Petitioners] commenced the instant CPLR Article 75 action in an effort to permanently stay a demand to arbitrate an issue submitted by the certified or recognized employee organization, in this instance the Civil Service Employees Association, Inc. [CSEA].

CSEA contended that the Petitioners' appointment of an "external applicant" to a position in the Town Highway Department violated a provision in the controlling collective bargaining agreement [CBA]. The provision cited by CSEA provided that current employees of the Town, including Highway Department employees, would give "precedence over external applicants" in the appointment of applicants to posted positions.

When the Petitioners' appointing "an external applicant to a position in the Highway Department", CSEA filed demands seeking to have the matter submitted to arbitration on behalf of the current employees of the Town who had applied for appointment to the position. Supreme Court denied the Town's petition and Petitioners appealed. The Appellate Division affirmed the Supreme Court's decision, with costs.

The Appellate Division's decision noted that:

1. "Public policy in New York favors arbitral resolution of public sector labor disputes";

2. A dispute between a public sector employer and an employee is arbitrable if it satisfies a two-prong test whereby the court must:

    [a] first determine whether there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance and if the court determines that there is no such prohibition barring to arbitrating the issue and then:

     [b] "the court must examine the parties collective bargaining agreement and determine if they in fact agreed to arbitrate the particular dispute".

3. Highway Law §140(4) vests a town's highway superintendent with the authority to "employ such persons as may be necessary for ... the maintenance and repair of the town highways and bridges," and the CBA's provision for filling vacancies does not impede or usurp that authority to the extent that the provision in the CBA "does not require the highway superintendent to hire a nonqualified candidate". 

Further, opined the Appellate Division, Supreme Court had correctly determined that the parties had agreed to submit disputed issued involving the terms and conditions of employment set out in the CBA to arbitration.

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

Redressing an interruption which occurred in the course of the administration of an examination

Petitioner in this appeal to New York States' Commissioner of Education challenged the New York City Department of Education's refusal to permit Petitioner's child to retake the examination for admission to a Specialized High School due to an alleged distracting incident that had taken place in the course of the administration of the examination caused by another student taking the examination.

Although the Commissioner dismissed Petitioner's appeal as untimely, Commissioner Rosa addressed two other significant matters:

1. Petitioner's allegation that an incident caused by another participant [classmate] in the examination “completely shatter[ed] [Petitioner's student’s] concentration and caus[ed] psychological distress during one of the exam’s most pivotal sections,”

2. The Department of Education's acted in an arbitrary or capricious manner when it refused to permit Petitioner's child to retake the examination.

As to impact on the incident on Petitioners' child, the Commissioner said that the examination proctor reported that the classmate became distressed but the "The proctor calmed and refocused the classmate, who stopped crying a few minutes later and completed the examination"

With respect to Petitioner's assertion that the incident “completely shatter[ed] [the student’s] concentration and caus[ed] psychological distress during one of the exam’s most pivotal sections,”  Petitioner did not prove that the New York City Department of Education acted in an arbitrary or capricious manner in denying Petitioner's request that that Petitioner's child be permitted to retake the examination.   

The complete text of the Commissioner's decision is set out below:

Decision No. 18,636

Appeal of G.W., on behalf of his child, from action of the New York City Department of Education regarding administration of an examination.

(September 11, 2025)

Muriel Goode-Trufant, Corporation Counsel, attorneys for respondent, Madison M. Moore, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the refusal of the New York City Department of Education (“respondent”) to allow his child (the “student”) to retake an examination.  The appeal must be dismissed as untimely.

An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).

Even assuming the accrual date most favorable to petitioner—February 26, 2025, when he was informed that he could file an appeal to the Commissioner—petitioner commenced the instant appeal 48 days thereafter.  Petitioner explains that he “continued to seek internal redress until March 26, 2025.”  A request for reconsideration, however, does not extend the time within which a petitioner may appeal to the Commissioner (Appeal of Cole, 57 Ed Dept Rep, Decision No. 17,180; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  Accordingly, the appeal must be dismissed.

Even if timely, the appeal would have been dismissed on the merits.  Petitioner complains that the student became distracted during an administration of the Specialized High Schools Admissions Test[1] when a classmate cried during the testing period.  As part of an investigation, respondent’s Offices of Assessment (OA) and Student Enrollment (OSE) spoke with the exam proctor.  The proctor reported that the classmate began crying at 11:37 a.m.  The proctor calmed and refocused the classmate, who stopped crying a few minutes later and completed the examination.  The proctor reported that the entire incident lasted less than five minutes.  OA and OSE concluded that the incident did not compromise the administration of the examination or that a retest was otherwise warranted.

While petitioner asserts that this incident “completely shatter[ed] [the student’s] concentration and caus[ed] psychological distress during one of the exam’s most pivotal sections,” he has not proven that respondent acted in an arbitrary or capricious manner.  Therefore, the appeal would be dismissed on the merits (Appeal of Goodman, 35 Ed Dept Rep 93, Decision No. 13,477).

THE APPEAL IS DISMISSED.

[1] Under State law, this examination is “the principal means of admission” into respondent’s Specialized High Schools.  See Appeals of C.K., et al., 59 Ed Dept Rep, Decision No. 17,748.