Saturday, July 22, 2017

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending July 22, 2017

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending July 22, 2017

Click on text highlighted in color  to access the full report

New York State Comptroller Thomas P. DiNapoli announced the following audits and examinations have been issued:

OCFS Should Improve Foster Care Placement Oversight

The state Office of Children and Family Services (OCFS) could not show that caseworkers contacted children in foster care within the first 30 days of their placement and lacked documentation proving children were placed in foster homes that met program certifications, according to an audit by New York State Comptroller Thomas P. DiNapoli.

Town of Geneseo – Information Technology and Multiyear Planning (Livingston County)
The board has not adopted policies to sufficiently protect the town's information technology assets and did not ensure that the adopted acceptable use policy was enforced or monitored. Town officials did not adequately segregate online banking duties and did not dedicate a separate computer for online transactions to limit access to online bank accounts. In addition, auditors found the town accumulated excessive fund balance in various funds.

Monticello Joint Fire District – Fiscal Operations (Sullivan County)
The board did not adopt realistic budgets for the 2014 through 2016 fiscal years. Although total budgeted revenues were reasonable, total expenditures were overestimated an average of 20 percent or almost $391,000 annually. The treasurer performs all financial transactions without adequate oversight.

Town of Orchard Park – Recreation Department Cash Receipts (Erie County)
The board did not adopt written policies over financial operations or approve a key department contract. The department generally recorded and deposited cash receipts properly, but did not remit money to the supervisor in a timely manner.

Friday, July 21, 2017

Judicial review of a determination arrived at following a quasi-judicial hearing is typically limited to determining if the decision is supported by substantial evidence

Judicial review of a determination arrived at following a quasi-judicial hearing is typically limited to determining if the decision is supported by substantial evidence
2017 NY Slip Op 05608, Appellate Division, Second Department

In this decision the Appellate Division sets out the basic rules followed by the courts when reviewing an administrative determination arrived at following a quasi-judicial hearing by an appointing authority or its designee. In this instance the appointing authority adopted the report and recommendation of a hearing officer, made after a hearing pursuant to Civil Service Law §75 finding the charged party [Petitioner] guilty of certain disciplinary charges, and terminated the Petitioner's employment.

Confirming the appointing authority's determination is confirmed, the Appellate Division explained:

1. The standard of review of an administrative determination made after a quasi-judicial hearing required by law is limited to considering whether the determination was based on substantial evidence.

2. It is the function of the administrative agency, not the reviewing court, to weigh the evidence, assess the credibility of witnesses, and determine which testimony to accept and which to reject.

3. Where evidence is conflicting and room for choice exists, a reviewing court may not weigh the evidence or reject the choice made by the administrative agency.

Here, said the court, substantial evidence supported the appointing authority's determination that Petitioner was guilty of committing certain acts of misconduct or insubordination.

As to the penalty imposed, dismissal from the position, the Appellate Division, citing Kreisler v New York City Tr. Auth., 2 NY3d 775, concluded that "the penalty of termination of [Petitioner's] employment was not so disproportionate to the offenses as to be shocking to one's sense of fairness."

The decision is posted on the Internet at:

A Reasonable Disciplinary Penalty Under the Circumstances - The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on

Municipalities and school districts rely on federal aid

Municipalities and school districts rely on federal aid
Source: Harris Beach PLLC, New York Municipalities Blog

A new report released by New York State Comptroller Thomas DiNapoli shows how much municipalities and school districts rely on federal aid. 

The report covers statistics from 2015 and shows that local governments and school districts outside New York City received $4.7 billion in direct federal support.

Thursday, July 20, 2017

The deadline to apply for the State’s tuition-free college application is Friday, July 21, 2017

The deadline to apply for the State’s tuition-free college application is Friday, July 21, 2017
Source: Office of the Governor 

Governor Cuomo reminds New Yorkers that the deadline to apply for the State’s tuition-free college application is Friday, July 21, 2017.

The Governor said that "Through the Excelsior Scholarship program, students will be able to realize their dream of higher education no matter how much money is in their pocket or the neighborhood that they come from."

More than 940,000 middle-class families across New York State will be eligible for the scholarship, and the requirements are simple. In order to apply, students must:

·   Be residents of New York State

·   Plan to attend a SUNY or CUNY two- or four-year degree program

·   Take 30 credits per year and make progress towards graduation

·    Maintain good academic standing

·     Be on track to graduate with an Associate’s Degree in two years or a Bachelor’s Degree in four years

Considering breaks in service in determining seniority for the purposes of layoff and reinstatement

Considering breaks in service in determining seniority for the purposes of layoff and reinstatement
2017 NY Slip Op 05657, Appellate Division, Third Department

Appeal from a judgment of the Supreme Court Ulster County granting petitioner's [Petitioner] application in a proceeding pursuant to CPLR Article 78 seeking to annul a determination of the Board of Education denying Petitioner's request for certain seniority rights.

The Petitioner in action was elementary teacher and had attained tenure with the school district [the District]. In 2004 Petitioner took an unpaid leave of absence and in December 2005 resigned from her position when her eligibility for continuation on unpaid leave expired rather than return to work. In 2007 the District appointed Petitioner to a teaching position and she was subsequently granted tenure by the District upon her satisfactory completion of her probationary period associated with this new appointment in 2009.

In 2010 the District eliminated positions in the elementary tenure area and Petitioner seniority for the purposes Education Law §2510 was based on her service with the District running from 2007. §2510 provides, in pertinent part, "Whenever a board of education abolishes a position under this chapter, the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued."

A temporary kindergarten teaching position then became available for the 2011-2012 school year. However, another former teacher was recalled to fill the vacancy because of her greater seniority. Petitioner, contending that the District had improperly calculated her seniority by ignoring her earlier service with the District and it should have reinstated her to the vacancy. Petitioner initiated the Article 78 action seeking a court order annulling the District's decision and ultimately Supreme Court directed the District to recalculate Petitioner's "seniority rights and all salary due to her."

The District appealed the Supreme Court's decision, contending that Petitioner's resignation from her position in 2005 served to sever her ties with the District and thus she forfeited any claim with respect to her earlier service with the District for the purposes of determining her  seniority rights.

The Appellate Division, citing Kwasnik v King, 123 AD3d 1264, explained that "Although an employee may waive his or her seniority rights by resigning or retiring, such a relinquishment must be knowing and voluntary" and be an effective waiver of such rights, the waiver "must be free from any indicia of duress or coercion."

In Petitioner's case the Appellate Division concluded that she resign from her position in 2005 rather than return from her leave when the District informed her that such extension was not possible as she had "exhausted her unpaid leave time." In other words, it was Petitioner decision to resign rather than return to work.

Thus, said the court, there was nothing in the record that could be construed as duress or coercion on the part of the District to obtain her resignation and the record indicated that Petitioner voluntarily resigned for her tenured position "in response to being accurately informed that she had exhausted her [rights to additional unpaid] leave.”

The Appellate Division also noted that Petitioner had been subsequently appointed by the District as a probationary employee after a year and half break in service, thus "belying any claim that she maintained a continuing employment relationship with it."

Accordingly, said the court, the District had properly determined that Petitioner was not entitled to count the period of time she had been employed by it prior to her 2005 resignation "for the purpose of [§2510] seniority" and, reversing the Supreme Court's decision, reinstated the District's initial determination regarding Petitioner seniority for the purposes of her reinstatement from the preferred list.

The decision is posted on the Internet at:


The Layoff, Preferred List and Reinstatement Manual -This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on

New York State regulations for Paid Family Leave Program adopted

New York State regulations for Paid Family Leave Program adopted
Source: NYS Workers Compensation Board

On July 19, 2017, Governor Andrew M. Cuomo announced that New York State has adopted regulations implementing New York's landmark Paid Family Leave program. These regulations outline the responsibilities of employers and insurance carriers in implementing the most comprehensive paid family leave program in the nation. 

Starting January 1, 2018, Paid Family Leave will provide employees with wage replacement and job protection to help them bond with a child, care for a close relative with a serious health condition, or help relieve family pressures when someone is deployed abroad on active military service. Employees are also entitled to be reinstated to their job when their leave ends and to the continuation of their health insurance during their leave. 

Paid Family Leave provides coverage for:

Parents during the first 12 months following the birth, adoption, or fostering of a child;
Employees caring for a spouse, domestic partner, child, parent, parent-in-law, grandparent, or grandchild with a serious health condition; and
Employees assisting loved ones when a spouse, child, domestic partner, or parent is deployed abroad on active military duty.

Employee Eligibility:

Employees with a regular work schedule of 20 or more hours per week are eligible after 26 weeks of employment.
Employees with a regular work schedule of less than 20 hours per week are eligible after 175 days worked.

Insurance Coverage

Paid Family Leave coverage will typically be included as a rider to an employer's existing disability insurance policy, and will be fully funded by employees through payroll deductions. In 2018, the maximum employee contribution is 0.126% of an employee's weekly wage up to 0.126% of the annualized New York State Average Weekly Wage. The program is mandatory for nearly all private employers. Public employers may opt into the program.

Phase-in Schedule

Paid Family Leave will be phased in over four years, beginning January 1, 2018. In 2018, employees may take up to eight weeks of paid leave at 50% of an employee's average weekly wage up to 50% of the New York State Average Weekly Wage. That increases to 12 weeks of paid leave in 2021 paid at 67% of an employee's average weekly wage up to 67% of the New York State Average Weekly Wage.

The regulations and other information is posted on the Internet at:

Wednesday, July 19, 2017

Employment Law News from WK WorkDay Source: Wolters Kulwer

Employment Law News from WK WorkDay 
Source: Wolters Kulwer

Selected reports posted in WK Workday distributed July 19, 2017

Click on text highlighted in color  to access the full report


Petitioning the Commissioner of Education to remove a member of a school board from his or her office

Petitioning the Commissioner of Education to remove a member of a school board from his or her office 
Decisions of the Commissioner of Education, Decision #17,055

A number of district residents, taxpayers and current or former members of the Board of Education [Petitioners] sought to have a sitting member of the Board of Education [Respondent] removed from his office by action of the Commissioner of Education pursuant to §306 Education Law. Petitioners alleged that the Respondent was guilty of "willful violation of the Education Law, General Municipal Law §805-a(1)(b) and Public Officers Law §105, and engaging in acts of willful misconduct in violation of the [school] district's code of ethics and policies concerning the confidential nature of the board's executive sessions."

Finding that there were a number of procedural defects in their appeal, the Commissioner dismissed Petitioners' complaint without reaching its merits.

First, said the Commissioner, Petitioners' application must be denied as moot as only matters in actual controversy will be considered and no decision will be rendered "on a state of facts which no longer exist or which subsequent events have laid to rest." In arriving at this ruling the Commissioner took "administrative notice that the official website" of the school district indicated that the Respondent "no longer serves on the board of education." Thus the issue of his removal from office was a  matter that had been "laid to rest."

The Commissioner then said that even if the Petitioners' application had not been dismissed as moot, it would have been denied because of the following procedural error or omissions:

1. Lack of proper service" as Petitioners did not personally serve their complaint "upon each named respondent;" and

2. The notice of petition was defective as it did not specifically advise a school officer that an application was being made for his or her removal from office by using the notice prescribed under 8 NCYRR §275.11(a) for appeals brought pursuant to Education Law §310.  

The Commissioner explained that "A notice of petition which fails to contain the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondent" as it is the notice of petition that alerts a party to the fact that he or she is the subject of removal proceedings. Thus the Petitioners' "failure to comply with 8 NYCRR §277.1(b) necessarily results in a jurisdictional failure and requires dismissal."

That said, the Commissioner noted that although the Petitioners' application must be dismissed on procedural grounds, there was yet "one administrative matter" to be consider.

The Respondent in this action had requested that the Commissioner issue a "certificate of good faith" pursuant to Education Law §3811(1) thereby authorizing the Board to indemnify him for "legal fees and expenses incurred in defending a proceeding arising out of the exercise of his powers or performance of duties as a board member."

The Commissioner explained that it was appropriate to issue such certification "unless it is established on the record that the requesting board member acted in bad faith."

As the Petitioners' application in this action was denied on procedural grounds and there had been no finding that Respondent acted in bad faith, the Commissioner certified, "solely for the purpose of Education Law §3811(1)" that the Respondent is entitled to a certificate of good faith.

The decision is posted on the Internet at: 

Tuesday, July 18, 2017

An employer may be vicariously liable for an allegedly slanderous statement made by its employee

An employer may be vicariously liable for an allegedly slanderous statement made by its employee
2017 NY Slip Op 05353, Appellate Division, Fourth Department

The Plaintiff in this action against a village and an employee of the village [Defendants] alleged that an employee of the village made defamatory remarks* concerning the Plaintiff in the course of her employment as an administrative assistant of the village.

Addressing appeals concerning the disposition of motions for summary judgment dismissing the Plaintiff's petition filed by the Defendants, the Appellate Division said:

1. It is well established that, although "[s]lander as a rule is not actionable unless the plaintiff suffers special damage," where, as here, a statement charges plaintiff with a serious crime, the statement constitutes "slander per se" and special damage is not required.

2. In situations involving "slander per se," the defendants may claim a qualified privilege contending that there was a good faith, bona fide communication upon a subject in which the individual has an interest, or a legal, moral or societal interest to speak, and the communication is made to a person with a corresponding interest.

3. In the event the defendants in such an action meet their initial burden of establishing that any of the alleged disparaging statements are protected by a qualified privilege inasmuch as they were made between members of the organization in connection with the plaintiff's application for employment, membership or a similar relationship, "the burden shifted to plaintiff to raise a triable issue of fact whether the statements were motivated solely by malice."

4. In the event the plaintiff raises an issue where a jury could reasonably conclude that malice was the one and only cause for the publication of the statements claimed by the plaintiff to constitute slander, the plaintiff has raised an issue of fact whether statements were motivated solely by malice and thus are not protected by a qualified privilege.

5. Citing Seymour v New York State Elec. & Gas Corp., 215 AD2d 971, the Appellate Division noted that an employer may be held vicariously liable for an allegedly slanderous statement made by an employee only if the employee was acting within the scope of his or her employment at the time that the statement was made.

In this action the Appellate Division concluded that the village failed to establish its  entitlement to summary judgment as a matter of law on the theory that the administrative assistant was not acting within the scope of her employment when she allegedly made disparaging statements concerning Plaintiff to other officials or employees of the village.

* A false statement that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace constitutes defamation. An oral utterance that inaccurately accuses a person of a serious crime can be slander per se as can oral statements alleging an individual's being infected with some disease that would result in his or her being ostracized from society, or being unfit to perform of his or her duties as an officer or employee. Defamatory words that could prejudice the individual in his or her profession or trade or the chastity of the individual have been held to constitute slander per se.

The decision is posted on the Internet at:

Monday, July 17, 2017

Exploring claimed procedural obstacles to demands for certain records pursuant to New York's Freedom of Information Law

Exploring claimed procedural obstacles to demands for certain records pursuant to New York's Freedom of Information Law
Kirsch v Board of Educ. of Williamsville Cent. Sch. Dist., 2017 NY Slip Op 05547, Appellate Division, Fourth Department

Kim A. Kirsch filed a petition pursuant to CPLR Article 78 seeking a court order directing the Williamsville Central School District's Board of Education [Board] to comply with her Freedom of Information Law [FOIL] request. Kirsch's FOIL request sought certain email records.

In its review of a Supreme Court's ruling directing the Board to provide the records demanded by Kirsch the Appellate Division addressed the following objections raised by the Board:

1. Standing to submit a FOIL request.

The Board contended that Kirsch's attorney, Michael A. Starvaggi, Esq., the individual submitting the FOIL request, "lacked standing" to maintain the Article 78 action. The Appellate Division rejected this claim, explaining FOIL provides that "Any person denied access to a record may appeal and seek judicial review of any adverse appeal determination," and "any person on whose behalf a FOIL request was made has standing to maintain a proceeding to review the denial of disclosure of the records requested."

The court noted that the administrative appeal letter expressly stated that Starvaggi was making the request on behalf of Kirsch and concluded that Kirsch had "standing to maintain this proceeding."

2. Statute of Limitations.

Notwithstanding the fact that the Board's claim that the action was untimely was not "preserved for [the Appellate Division's] review," the court elected to consider the merits of its argument that the proceeding is barred by the statute of limitations. In so doing, the Appellate Division opined that the Board "failed to meet [its] burden of establishing that petitioners received notice of the final decision denying the administrative appeal more than four months before the proceeding was commenced.

3. Adding another party to the action.

The Board objected to Supreme Court's granting Starvaggi's oral motion to amend Kirsch's Article 78 petition "to add Starvaggi as a petitioner." The Appellate Division sustained the lower court's granting his oral motion "under the circumstances" in this action. Significantly, the court said that the relation back doctrine* permited the addition of Starvaggi after the expiration of the statute of limitations as the claims brought by Starvaggi and Kirsch are identical in substance - i.e., that Board improperly denied the FOIL request made by Starvaggi on behalf of Kirsch, and Starvaggi and Kirsch are united in interest in seeking compliance with that request.

4. Exemptions from disclosure.

The Board contended that the emails may contain "exempt material." The Appellate Division affirmed the Supreme Court directing the Board to provide Kirsch and Starvaggi  with the requested emails, "with any claimed exemptions from disclosure documented in a privilege log that may be reviewed by the court."

Addressing the Board's "broad allegation here that the [emails may] contain exempt material," the Appellate Division said that such a representation "is insufficient to overcome the presumption that the records are open for inspection . . . and categorically to deny petitioner[s] all access to the requested material."

Further, said the court, should the Board establish that a requested email contains exempt material, "the appropriate remedy is an in camera** review and disclosure of all nonexempt, appropriately redacted material."

5. Identification of the records demanded.

Noting that Kirsch and Starvaggi had "reasonably described" the requested emails thus enabling the Board to identify and produce the records, the Appellate Division, citing Konigsberg v Coughlin, 68 NY2d 245, held that the Board "cannot evade the broad disclosure provisions of [the] statute . . . upon the naked allegation that the request will require review of thousands of records."

It should be remembered that the basic concept underlying FOIL is that all government documents and records, other than those having access specifically limited by statute, are available to the public. The release of certain public records, such as those identified in Civil Rights Law §50-a, Education Law §1127 - Confidentiality of records and §33.13 Mental Hygiene Law - Clinical records, are examples of records to which access has been limited by statute. 

Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute. Submitting a "formal" FOIL request becomes necessary only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a formal FOIL request to obtain the information.

It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian of the record could rely upon in denying a FOIL request, in whole or in part, for the information or records sought.

* Apply the Doctrine of Relation Back permits "something done today" to be treated as though it "were done earlier" notwithstanding the fact that the otherwise controlling statute of limitations had already expired.

** A hearing held conducted by the court or hearing officer in private or when the public is excluded from the proceeding to consider a particular issue is referred to as being held in camera.

The decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at

A Reasonable Penalty Under The Circumstances at

The Disability Benefits E-book: at

Layoff, Preferred Lists at


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