Payment of back salary upon reinstated from a disciplinary suspension without pay

Supreme Court granted a petition brought pursuant to CPLR Article 78 seeking to vacate or annul the determination of the Employer discharging Plaintiff from his employment and directed that the Employer conduct a hearing pursuant to Civil Service Law §75(1)(c). Employer appealed.

The Appellate Division unanimously affirmed the Supreme Court's decision, which had denied that portion of Plaintiff's petition seeking a judgment that Petitioner be immediately awarded "full back pay." 

The Appellate Division explained that although Plaintiff may ultimately be found to be entitled to backpay starting 30 days after his suspension without pay, the amount of such backpay, if any, and the application of any offsets to any amount awarded in consideration of other employment or from unemployment benefits, "is a matter that should be addressed in the first instance at the hearing 0rdered by the court".

It should be noted that in 1985 §§76 and 77 of the New York State Civil Service Law*, which apply to certain employees in the classified service of a public employer, were amended by Chapter 851, Laws of 1985. §§76 and 77 currently provide that an employee reinstated pursuant to either of these subdivisions is to receive the salary to which he or she would have otherwise been entitled, less the amount of any unemployment insurance benefit that he or she may have received during such period. The amendment did not include the clause providing for a "reduction" in the amount to be paid for any such compensation the individual earned in other employment or occupation during during such period of the employee's suspension without pay. 

* See https://publicpersonnellaw.blogspot.com/search?q=back+pay. 

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

New York State's Commissioner of Education directs the respondent school districts to allow all students to access the school districts' facilities that most closely align with their gender identity

Petitioners in this administrative appeal to New York State's Commissioner of Education, Dr. Betty A. Rosa, the parents of transgender students attending the Respondent New York State public school districts, contended that:

[1] Certain resolutions adopted by the two Respondent school districts were "arbitrary and capricious because [of their reliance] upon an erroneous interpretation of federal law"; and 

[2] Certain resolutions adopted by the two Respondent school districts "prohibiting transgender and gender nonconforming students from using facilities that align with their gender identity are contrary to State law, including [New York State's] Dignity for All Students Act".  

The Petitioners sought annulment of the Respondents' resolutions and that the Commissioner direct the Respondent school districts to permit their transgender children "to access school facilities, including bathrooms and locker rooms, that align with their gender identity".

Commissioner Rosa sustained the Petitioners' appeals.

In consideration of the scope of Commissioner Rosa's decision, rather than attempt to summarize the Commissioner's comprehensive ruling, NYPPL has elected to recommend that the reader click on Decision No. 18,726 | Office of Counsel to access the Commissioner's decision posted on the Internet.

Appellate Division affirms Supreme Court's denial of Plaintiff's motions seeking a writ of mandamus and the recusal of the presiding justice in a CPLR Article 78 proceeding

Supreme Court granted

[1] the City of New York's cross-motion to dismiss Plaintiff's petition seeking to compel the City's Department of Investigation [DOI] to investigate alleged criminal activity targeting Plaintiff while she was employed by the New York City Public Advocate's Office; and

[2] the City's motion dismissing Plaintiff's CPLR Article 78 action; but 

[3] rejected the Plaintiff's efforts seeking the designated Justice's voluntary "recusal" in the Article 78 matter. Plaintiff appealed.

The Appellate Division unanimously affirmed Plaintiff lack of success in obtaining a writ of mandamus in Supreme Court, explaining that a writ of mandamus may be sought "to enforce the performance of a ministerial duty", but a writ of mandamus cannot be used "to compel an act in respect to which a public officer may exercise judgment or discretion".

Observing that DOI's decision not to investigate the matter was neither arbitrary and nor capricious, the Appellate Division directed the Public Advocate's Office to have [Plaintiff] report the alleged criminal conduct to the police.

Addressing Plaintiff's efforts seeking the "self-recusal" of the assigned Justice in the CPLR Article 78 action, the Appellate Division opined that Supreme Court providently rejected Plaintiff's efforts concerning the recusal of the assigned Justice as the assigned Justice was not a party to and had not been an attorney or counsel "in this proceeding". 

Nor, said the Appellate Division, did Plaintiff contend that the assigned Justice "had 'an interest' in the proceeding or was related to the parties" and in the absence "of any statutorily mandated disqualification and any legitimate suggestions of bias or impartiality" which Plaintiff could have demonstrated, the assigned Justice's decision "not to recuse" was appropriate as a matter of personal conscience.

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

OATH Administrative Law Judge recommends the Appointing Authority suspend the employee for 30-day without pay rather than terminate the employee found guilty of misconduct

New York City's Office of Administrative Trials and Hearing [OATH] Administrative Law Judge [ALJ] Michael D. Turilli recommended that a 30-day suspension without pay be imposed as the disciplinary penalty on the Respondent, an Office of the Chief Medical Examiner (“OCME”) motor vehicle operator, rather that terminating the employee from the position as proposed by the appointing authority. 

OCME alleged that Respondent acted negligently by entering a decedent’s home unaccompanied by the police officer who waited outside and brought OCME into disrepute when the New York Post reported that he was criminally charged with stealing a handbag from the decedent. 

The ALJ granted Respondent’s motion to preclude footage from the officer’s body worn camera after finding that such footage was sealed by New York State's Criminal Procedural Law as official records relating to Respondent’s arrest and prosecution, but permitted the introduction of surveillance video because recordings made in a private building in the regular course of business are not official records. 

Relying on the recordings, OCME employee testimony, and documentary evidence, the ALJ found that Respondent inefficiently, negligently, or carelessly performed his duties by entering decedent’s apartment without police supervision in violation of an unambiguous agency directive and OCME’s common practice. 

However, the ALJ found that OCME failed to prove Respondent brought the agency into disrepute, finding that while the New York Post article may have brought OCME negative attention, it focused on the theft of the bag, a criminal charge of which Respondent was acquitted, and which was neither alleged nor proven at Petitioner's OATH trial. 

Accordingly, the ALJ found that the 30-day suspension, rather than termination from the position, was the appropriate penalty to impose on Respondent under the circumstances.   

Click HERE to access Judge Turilli findings and recommended penalty.

Recent New York State audits of municipalities posted on the Internet

On May 1, 2026 New York State Comptroller Thomas P. DiNapoli announced that the following local government audits were issued.

Click on the text highlighted in color to access the audit report.

Town of Alexander – Town Clerk/Tax Collector (Genesee County) The former clerk did not properly record, deposit, report or remit collections, and did not process transactions in a timely manner. The former clerk was arrested in July 2024 and arraigned on charges of grand larceny, falsifying business records, forgery and corrupting the government. In January 2025, the former clerk pleaded guilty to petit larceny, resigned from the position and made restitution to the town. Auditors also found that annual collections recorded decreased by approximately $17,000 (43%) from 2018, the year prior to the former clerk taking office, to 2022.

Town of Davenport – Transparency of Fiscal Activities (Delaware County)  The board did not conduct, or provide for, an annual audit of the supervisor’s financial records and reports for fiscal year 2024, as required by law. The supervisor filed the 2024 annual financial report with DiNapoli’s office 152 days past the statutory deadline. The supervisor also did not properly maintain financial information for liabilities and fund equity in the balance sheet reports, hindering the board’s ability to monitor the town’s financial operations throughout the year.

Town of Sodus – Transparency of Fiscal Activities (Wayne County) The board did not conduct, or provide for, an annual audit of the supervisor’s financial records and reports for fiscal year 2024, as required by law. The supervisor also failed to prepare or file annual financial reports for fiscal years 2021 through 2024. Lastly, the supervisor did not perform monthly bank reconciliations, provide the board with financial reports or ensure that seven highway department employees were paid the correct overtime wages.

Howard Public Library – Board Oversight (Steuben County)  The board did not provide adequate oversight of financial operations. As a result, the board lacked the necessary financial information to manage the library’s financial condition and could not ensure its financial activities were adequately accounted for, recorded and reported. Consequently, the library had an increased risk of budgetary issues and services impact as well as increased risk of theft, waste and abuse of resources.

Cuylerville Volunteer Fire Department Inc. – Financial Oversight (Livingston County)  Department officials and membership did not provide adequate oversight of financial operations because they did not adopt a code of ethics, detailed bylaws or financial policies or enforce the limited financial provisions in the bylaws. They also did not adequately segregate financial duties, implement compensating controls or provide guidance related to recording and reporting financial transactions to the treasurer.

Town of Knox – Transparency of Fiscal Activities (Albany County) The board did not conduct, or provide for, an annual audit of the supervisor’s financial records and reports for fiscal year 2024, as required by law. The supervisor also did not prepare or file annual financial reports for fiscal years 2021 through 2024. In addition, the supervisor did not provide the board with complete, accurate and reliable monthly financial reports.

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