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Wednesday, February 28, 2018

Summarily terminating a federal officer holding a term appointment from his or her position


NYPPL earlier summarized the decision in PHH Corporation v Consumer Financial Protection Bureau, a decision in which the United States Circuit Court of Appeals,  District of Columbia Circuit  considered the issue of summarily removing a public officer holding a term appointment from his or her position.*

In PHH the Circuit Court concluded that a federal administrator appointed for a fixed term of office may only be removed for cause after notice and hearing. In particular the court ruled that the structure of the Consumer Financial Protection Bureau [CFPB] is constitutional and that its director can be terminated by the President only for cause.

In the words of the majority of the Circuit Court, sitting en banc: "Applying binding Supreme Court precedent, we see no constitutional defect in the statute preventing the President from firing the CFPB Director without cause."

Is the PHH decision relevant with respect to an effort by the President to summarily remove Special Counsel Robert Mueller from his position?

In this reviewer's opinion, PHH probably would not control as the Special Counsel currently so serving has not been appointed for a fixed term of office. 

However, 28 CFR 600.7(d) provides as follows:

"(d) The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General [or under the present circumstances, Deputy Attorney General Rod J. Rosenstein]. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal."

Deputy Attorney General Rosenstein's letter to Mr. Mueller** setting out the terms and conditions of his appointment as Special Counsel states that §§600.4 through 600.10 of the Code of Federal Regulations are applicable to the Special Counsel.

Further, 28 CFR 600.9 Notification and Reports by the Attorney General, in pertinent part, provides:

"(a) The Attorney General will notify the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress, with an explanation for each action -

"(2) Upon removing any Special Counsel."

Although not specifically so stated in 28 CFR 600.7(d), "due process of law" may require that the removal of a Special Counsel be effected only upon his or her  being found guilty of "misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies" after notice and hearing.

*The PPH decision is posted on the Internet at:

** The appointment letter is posted on the Internet at:

Summarily terminating a federal officer holding a term appointment from his or her position

Summarily terminating a federal officer holding a term appointment from his or her position
PHH Corporation v Consumer Financial Protection Bureau, USCA District of Columbia Circuit, Docket #15-1177

NYPPL earlier summarized the decision in PHH Corporation v Consumer Financial Protection Bureau, a decision in which the United States Circuit Court of Appeals,  District of Columbia Circuit [Docket #15-1177] considered the issue of summarily removing a public officer holding a term appointment from his or her position.*

In PHH the Circuit Court concluded that a federal administrator appointed for a fixed term of office may only be removed for cause after notice and hearing. In particular the court ruled that the structure of the Consumer Financial Protection Bureau [CFPB] is constitutional and that its director can be terminated by the President only for cause.

In the words of the majority of the Circuit Court, sitting en banc: "Applying binding Supreme Court precedent, we see no constitutional defect in the statute preventing the President from firing the CFPB Director without cause."

Is the PHH decision relevant with respect to an effort by the President to summarily remove Special Counsel Robert Mueller from his position?

In this reviewer's opinion, PHH probably would not control as the Special Counsel currently so serving has not been appointed for a fixed term of office. However, 28 CFR 600.7(d) provides as follows:

"(d) The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General [or in this situation, Deputy Attorney General Rod J. Rosenstein]. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal."

Deputy Attorney General Rosenstein's letter to Mr. Mueller** setting out the terms and conditions of his appointment as Special Counsel states that §§600.4 through 600.10 of the Code of Federal Regulations are applicable to the Special Counsel.

Further, 28 CFR 600.9 Notification and Reports by the Attorney General, in pertinent part, provides:

"(a) The Attorney General will notify the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress, with an explanation for each action -

"(2) Upon removing any Special Counsel."

Although not specifically so stated in 28 CFR 600.7(d), "due process of law" may require that the removal of a Special Counsel be effected only upon his or her  being found guilty of "misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies" after notice and hearing.

*The PPH decision is posted on the Internet at:

** The appointment letter is posted on the Internet at:

Tuesday, February 27, 2018

The individual's retiring from his or her position to avoid disciplinary action may have unexpected consequences


The individual's retiring from his or her position to avoid disciplinary action may have unexpected consequences
Castro v Safir, 291 A.D.2d 212

An employee may elect to retire from his or her position when charges of incompetency or misconduct have been, or are about to be, filed against the individual.

4 NYCRR 5.3(b), which applies to officers and employees of the State as the employer in the Classified Service and employees of certain other public entities, provides, in pertinent part, that "... when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his termination shall be recorded as a dismissal rather than as a resignation." Many local civil service commission and county personnel officers have promulgated a local law, rule or regulation similar to 4 NYCRR 5.3(b).

In certain situations an individual who seeks to retire after he or she is terminated from his or her position as the result of being found guilty of disciplinary charges may find that he or she has forfeited the pension portion of his or her retirement allowance to which he or she may have otherwise been entitled.*

In Castro, the basic issue involved the result of his disciplinary termination from his position prior to the effective date of his retirement. If he had been lawfully so dismissed from the position, any pension benefits to which he would have otherwise been entitled would be forfeited pursuant to §13-173.1 of the New York City Administrative Code.**


Castro sued the Department contending that it had terminated him in bad faith in order to frustrate his eligibility for pension benefits as the New York City Employees' Retirement System's Medical Board had earlier found Castro eligible for ordinary disability retirement.***

The Appellate Division ruled that Castro had forfeited his pension benefits as he had been dismissed from his position for cause before he effective date of his retirement on ordinary disability and thus he was not in service on the effective date of his retirement, a ruling  consistent with the Court of Appeals' holding in its Waldeck and Barbaro rulings.

In Waldeck v NYC Employees' Retirement System, 81 N.Y.2d 804, decided with Barbaro v NYC Employees' Retirement System, the Court of Appeals said that §13-173.1 provides that an employee's disciplinary termination prior to effective date of his or her voluntary resignation results in a forfeiture of his or her eligibility for pension benefits.

Sometimes a disappointed retiree, as did Castro, alleges his or her termination constituted the employer acting in bad faith.

In Cipolla v Kelly 26 A.D.3d 171, the Appellate Division held that “The fact that [the individual] was about to retire, or that [the individual] ultimately settled the criminal charges by pleading to a violation, does not demonstrate [that the individual’s] termination [from his or her position was made] in bad faith.”

* The decision in Blair v Horn, 2008 NY Slip Op 32581(U), not selected for publication in the Official Reports, suggests that a court could deem a retirement to be the equivalent of a resignation within the meaning of 4 NYCRR 5.3(b) [See  http://www.nycourts.gov/reporter/pdfs/2008/2008_32581.pdf].

** §13-173.1 requires an employee to "be in service" on the effective date of his or her retirement or vesting of retirement benefits. If the employee is not "in service" on that date, he or she forfeits his or her pension benefits.

*** According to the decision, Castro was terminated from his position after he had applied for ordinary disability retirement but before he was actually retired for disability.

The Castro decision is posted on the Internet at:


Penalty of dismissal recommended for an employee found guilty of violating the public trust and other disciplinary charges

Penalty of dismissal recommended for an employee found guilty of violating the public trust and other disciplinary charges
OATH Index No. 1767/17

A New York City Division of Housing housing inspector, whose duties included inspecting private and multiple dwellings for safety and "illegal conversions in cellars" was served with disciplinary charges alleging that he had [1] unlawfully converting the cellar of his two-family residence into single rooming units; [2] unlawfully installing kitchen and plumbing fixtures in the cellar space and [3] his failure to advise his employer of his ownership of his residence constituted a conflict of interest.

New York City Office of Administrative Trials and Hearings Administrative Law Judge Joycelyn McGeachy-Kuls found that the inspector had, indeed, unlawfully converted his cellar into rooming units, which he rented to tenants. Further, the ALJ noted that the rooms were unsafe because "they lacked the required means of egress."

Finding that the inspector's conduct showed disregard for the housing and safety standards he was charged with enforcing and was in violation of the public trust, Judge McGeachy-Kuls recommended that the inspector be terminated from his employment with the Division of Housing.

Also noted was a procedural element that the ALJ had to address. The inspector's employer called [the inspector as a witness] and asked him if "he had been arrested for violations at the subject premises." The inspector declined to answer the question invoking his Fifth Amendment right not to provide information that might be incriminating.*

The Division of Housing asked Judge McGeachy-Kuls that she "draw an adverse inference from the [inspector's] refusal to answer questions. The inspector then "stipulated to the admission of the criminal complaint filed against [him] citing violations at the subject premises."

Under the circumstances the ALJ said that she found it "unnecessary to draw an adverse inference."

* At the time of this disciplinary hearing was held criminal charges filed against the inspector were still pending.

The decision is posted on the Internet at:

Monday, February 26, 2018

Complying with administrative procedural requirements prior initiating litigation seeking information pursuant to the Freedom of Information Law




Complying with administrative procedural requirements prior initiating litigation seeking information pursuant to the Freedom of Information Law
Empire Ctr. for Pub. Policy, Inc. v N.Y.C. Off. of Payroll Admin., 2018 NY Slip Op 01143, Appellate Division, First Department

Supreme Court granted the Empire Center for Public Policy's CPLR Article 78 petition seeking to compel the New York City Office of Payroll Administration [Administration] to disclose certain information it had requested pursuant to the Freedom of Information Law [FOIL]. The court also referred the matter to a special referee to hear and report on the appropriate amount of attorney's fees to be awarded to the Center.

The Appellate Division unanimously reversed Supreme Court's ruling "on the law" without costs and dismissed the Center's Article 78 petition.

The Appellate Division noted that the Center and Administration had corresponded regarding Administration's attempt to comply with the Center's request. Administration indicated it would not be able to compile the date requested until October 2015. On November 5, responding to the Center's inquiry concerning Administration's failure to yet provide all the data it had requested, Administration ask Center for an additional 20 days to provide the requested data.

Acknowledging that in South Shore Press v Havemeyer, 136 AD3d 929, it was held that a failure to provide an approximate date when a petitioner's FOIL request would be granted constituted a constructive denial, the Appellate Division ruled that here the Center's appeal was premature as Administration had not constructively denied the Center's FOIL request in that Administration had provided "most of the information" by November 18."

The Appellate Division, conceding that a custodian of a public record's failure to provide an approximate date when a FOIL request would be granted constituted a constructive denial, found that the Center "did not file an administrative appeal from [the Administration's November 18 response] and thus the Center failed to exhaust its administrative remedies before commencing its Article 78 action.

The decision notes that in Taylor v NYC Police Department, FOIL Unit, 25 AD3d 347, [leave to appeal denied 7 NY3d 714], despite the FOIL Unit's untimely response to Taylor's FOIL request, Taylor improperly institute an Article 78 action "without first taking an administrative appeal" challenging the untimely response to his FOIL request.

The decision is posted on the Internet at:



Sunday, February 25, 2018

Employer advanced good faith reasons supporting its decision to terminate a probationary employee

Employer advanced good faith reasons supporting its decision to terminate a probationary employee
Cooper v City of New York, 2018 NY Slip Op 01240, Appellate Division, First Department

Supreme Court annulled the New York City Department of Education's determination terminating probationary employee John Cooper's from his position. The Appellate Division reversed the lower court's ruling "on the law."

The Appellate Division held that Cooper failed to establish that he was terminated in bad faith in view of the record demonstrating that his performance during his probationary period was unsatisfactory.

On the contrary, said the court, "the record demonstrates that [the New York City Department of Education] had a good faith reason for its determination" in that there were issues with Cooper's leadership, communication, and project management skills, which not resolved despite Cooper's supervisor's repeated advice that he needed to improve and her efforts to assist him.

The decision is posted on the Internet at:

Friday, February 23, 2018

Federal whistle blower protection against retaliation is not triggered unless the individual complies with the procedures set out in the controlling federal law, rule or regulation


Federal whistle blower protection against retaliation is not triggered unless the individual complies with the procedures set out in the controlling federal law, rule or regulation
Digital Realty Trust, Inc. v. Somers, USSC, No. 16-1276
Both the Sarbanes-Oxley Act of 2002, typically referred to as the Sarbanes-Oxley Act and the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act, generally referred to as the Dodd-Frank Act, shield whistle blowers from retaliation by their employer for "whistle blowing" but they differ in important respects.
Sarbanes-Oxley applies to all "employees" who report misconduct to the Securities and Exchange Commission [SEC], any other federal agency, Congress, or an internal supervisor [see 18 U. S. C. §1514A(a)(1)].
In contrast, Dodd-Frank defines a "whistle blower" as any individual who provides . . . information relating to a violation of the securities laws to the SEC, in a manner established, by rule or regulation, by the SEC [see, generally, 15 U. S. C. §78u– 6(a)(6)].
Paul Somers alleged that his employer, Digital Realty Trust, Inc., [DRT] terminated him shortly after he reported suspected securities-law violations by the company to senior DRT management. Somers then initiated litigation against DRT, contending that he had been terminated in retaliation for his "whistle blowing" in violation of Dodd-Frank.
DRT asked the court to dismiss Somers lawsuit contending that Somers was not a whistle blower within the meaning of 15 USC §78u-6(h) because he failed to alert the Security and Exchange Commission of the suspected violations of Dodd-Frank prior to his termination.
The District Court denied the motion, and the Ninth Circuit affirmed. The Court of Appeals concluded that §78u-6(h) does not necessitate recourse to the SEC prior to gaining "whistle blower" status, and it accorded deference to the SEC's regulation, citing Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837.
The Supreme Court reversed, holding that the Dodd-Frank anti-retaliation provision does not extend to an individual who, like Somers, had not reported a violation of the securities laws to the SEC prior to his or her termination from his or her employment.
The court explained that "When a statute includes an explicit definition, [the court] must follow that definition ...."An individual who falls outside the protected category of “whistle blowers” as defined in the law, rule or regulation is ineligible to seek redress regardless of the conduct in which that individual has engaged. 

With respect to officers and employees of New York State as an employer and its political subdivisions, §75-b of the Civil Service Law provides as follows:

"2. (a) A public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding the employee's employment because the employee discloses to a governmental body information: (i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or (ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action. "Improper governmental action" shall mean any action by a public employer or employee, or an agent of such employer or employee, which is undertaken in the performance of such agent's official duties, whether or not such action is within the scope of his employment, and which is in violation of any federal, state or local law, rule or regulation" [emphasis supplied].


In Ringle v Onondaga County, 267 AD2d 1088, in determining Ringle’s and Sawyer’s rights under Section 75-b of the Civil Service Law, the Appellate Division noted that alleged violations of Section 75-b are typically challenged by the individual bringing an Article 78 action [Article 78, Civil Practice Law and Rules].* 
In filing such a petition, said Appellate Division, the individual seeks to vindicate a private rather than a public right. What private right? The right not to be dismissed or otherwise subjected to reprisals because of his or her disclosures to other governmental agencies of the media.
This conclusion meant that both Ringle and Sawyer had fallen into a procedural trap.
The Appellate Division said that because the “Civil Service Law Section 75-b causes of action Ringle and Sawyer brought sought to vindicate only their individual interests their claims were properly dismissed by the lower court because neither had filed a notice of claim as required by Section 50-a of the General Municipal Law Section and Section 52 of the County Law.**
In addition, the court pointed out that Section 75-b does not serve as a shield against disciplinary action being taken against an employee where there is a “separate and independent basis” for discipline the individual.
Finally, the Appellate Division observed that “by commencing actions pursuant to Civil Service Law Section 75-b, Ringle and Sawyer are barred from asserting any other State law cause of action related to the alleged retaliatory discharges.”
* In contrast, in DiGregorio v MTA Metro-N. R.R., 140 AD3d 530, the court ruled that where the collective bargaining agreement so provides, an allegation that the employer violated the “whistle-blower” statute is adjudicated in accordance with the terms of the agreement.
** This ruling implies that where an individual sues a school district or BOCES claiming he or she was dismissed or subjected to punitive action in violation of Section 75-b, he or she must file a notice of claim in accordance with Section 3813(1) of the Education Law. 

The decision is posted on the Internet at:
 

Wednesday, February 21, 2018

A governmental entity operating in a public capacity may loose its right to claim sovereign immunity in litigation if it is found that the underlying cause of action involved its acting in a proprietary capacity

A governmental entity operating in a public capacity may loose its right to claim sovereign immunity in litigation if it is found that the underlying cause of action involved its acting in a proprietary capacity
Connolly v Long Is. Power Auth., Court of Appeals, 2018 NY Slip Op 01148

As was indicated in an earlier posting in NYPPL entitled Sovereign Immunity, Absolute Immunity, Qualified Immunity, Use Immunity, Transaction Immunity and Qualified Privilege, since updated to include the Connolly decision,  claims that may be advanced by public officers and employees involved in litigation and, or, administrative hearings, there are a number of theories that may be cited as a defense that will bar or limit legal action being taken, or continued, against an individual.

In Turturro v City of New York, 28 NY3d 469, the Court of Appeals addressed another theory for a defendant claiming immunity in an effort to avoid litigation, a claim that the entity is a governmental body. In Turturro the court explained that a government entity performing a purely proprietary, non-governmental role when its activities essentially substitute for or supplement traditionally private enterprises. In contrast, a government entity will be deemed to have been engaged in a governmental function when its acts are undertaken for the protection and safety of the public pursuant to the general police powers.

The issue before the Court of Appeals in the captioned matter was whether the defendants, the  Long Island Power Authority (LIPA), Long Island Lighting Company (LILCO), and National Grid Electric Services, LLC (National Grid) were, collectively entitled to dismissal of plaintiffs' amended complaints on the rationale that the actions challenged were governmental and discretionary as a matter of law. 

The court rejected the defendants argument that assuming their actions were not discretionary, "plaintiffs' failure to allege a special duty is a fatal defect." Rather, the Court of Appeals ruled that because defendants had not met their threshold burden of demonstrating that the action was governmental in the context of its "pre-answer, pre-discovery CPLR §3211(a)(7) motions," it could not concluded that plaintiffs' complaints fail to state causes of action as a matter of law.

The Court of Appeals also took note of the fact that LIPA was a public authority that was created by the legislature as a "corporate municipal instrumentality of the state . . . which shall be a body corporate and politic and a political subdivision of the state, exercising essential governmental and public powers," and authorized it to operate in LILCO's service area (Public Authorities Law §1020-c [1], [2]).

It then explained that it is "well settled that, "[d]espite the sovereign's own statutory surrender of common-law tort immunity for the misfeasance of its employees, governmental entities somewhat incongruously claim — and unquestionably continue to enjoy — a significant measure of immunity fashioned for their protection by the courts" (Haddock v City of New York, 75 NY2d 478, 484 [1990]). 

The doctrine of governmental function immunity "reflects separation of powers principles and is intended to ensure that public servants are free to exercise their decision-making authority without interference from the courts," citing Valdez v City of New York, 18 NY3d 69. Additionally, said the Court of Appeals, "this immunity reflects a value judgment that — despite injury to a member of the public — the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury."

Because the issue in this CPLR §3211(a)(7) motion is whether plaintiffs' complaints have stated a viable claim, the first issue that to be considered "is whether the . . . entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose. This is because if the action challenged in the litigation is governmental, the existence of a special duty is an element of the plaintiff's negligence cause of action.

As the court explained in (Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428, "[w]hen the liability of a governmental entity is at issue, it is the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred which governs liability."

Assuming the government entity was acting in a governmental capacity, the court observed that a plaintiff may nevertheless state a viable claim by alleging the existence of a special duty to the plaintiff, citing Turturro, 28 NY3d at 478. 

If the plaintiff establishes the elements of the cause of action, including special duty, the government entity can avoid liability under the governmental function immunity defense by proving the challenged actions were discretionary in nature and that discretion was, in fact, exercised. However, because the governmental immunity defense protects government entities from liability only for discretionary actions taken during the performance of governmental functions, "[t]he . . . defense has no applicability where the [entity] has acted in a proprietary capacity, even if the acts of the [entity] may be characterized as discretionary."

Viewing plaintiffs' allegations in the light most favorable to plaintiffs, "as [the Court of Appeals] must given the procedural posture" of this action, plaintiffs' allegations concern the providing of electrical power by defendants, a service that traditionally has been provided by private entities in the State of New York., nor does LIPA dispute that the provision of electricity traditionally has been a private enterprise which, in the normal course of operations, would be a proprietary function.

Accordingly, the Court of Appeals said that it could not, as "a matter of law based only on the allegations in the amended complaints, as amplified," conclude that LIPA was acting in a governmental, rather than a proprietary, capacity when engaged in the conduct claimed to have caused plaintiffs' injuries.

The decisions is posted on the Internet at:


Saturday, February 17, 2018

Audits and examination reports issued during the week ending February 16, 2018 by NYS Comptroller Thomas P. DiNapoli

Audits and examination reports issued during the week ending February 16, 2018 by NYS Comptroller Thomas P. DiNapoli 

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

Department of Taxation and Finance: Oversight of the Agricultural Assessment Program (2017-S-26)
The New York Agricultural Districts Law allows reduced property tax bills for land in agricultural production by limiting the property tax assessment of the land to its prescribed per-acre Agricultural Assessment Value (AAV). Auditors identified an error in the Tax Department’s calculation in 2006 that caused subsequent years’ AAVs to be incorrect, including those certified and communicated to local assessors during the audit period. This resulted in about $10.4 million in excess agricultural exemptions granted to program property owners during the three-year period 2014 through 2016 for 10,416 properties in the eight counties analyzed. Because of the excess exemptions, an estimated $349,069 in real property taxes were not collected.

New York Racing Association (NYRA): Capital Program Revenue and Expenses (Follow-Up) (2017-F-26)
An initial audit issued in October 2015 found that NYRA lacked a formal long-term capital planning process for Video Lottery Terminal (VLT) revenues. The annual capital plans used by NYRA lacked supporting documentation for the resources and costs associated with the listed projects and NYRA did not have a formal project management system to effectively monitor capital project status. Auditors also found NYRA used VLT revenues for operating expenses, which was not in accordance with prescribed professional standards. In a follow-up, auditors found NYRA made some progress in addressing the issues identified.

New York Racing Association: Financial Condition and Selected Expenses (Follow-Up) (2017-F-27)
An initial audit report issued in June 2016, assessed NYRA’s financial condition. Auditors found that although NYRA’s overall financial condition was sound, its traditional racing-related operations continued to produce multi-million-dollar annual deficits. Also, NYRA had paid certain expenses that were not ordinary or necessary for racing operations, which contributed to NYRA’s racing-related deficits. In a follow-up, auditors found NYRA made some progress in addressing the issues identified.

State Education Department (SED)/Division of State Police (DSP): Compliance With the Enough is Enough Act (2017-S-38)
Auditors found SED has made progress in complying with some of its key responsibilities under the act, however, it has fallen behind meeting or completing others. SED’s implementation time frames resulted in delays in meeting certain requirements, including reporting critical incident data to the Governor and Legislature. SED may not meet the reporting requirement until late 2019 – two years later than the act requires. DSP has met its responsibilities under the act.

Office of Temporary and Disability Assistance (OTDA): New York State Supplemental Payments (SSP) Made to Deceased Individuals (2016-BSE7-01)
OTDA administers the New York SSP, which provides a supplemental benefit to Supplemental Security Income (SSI) recipients and other qualifying state residents. Auditors found OTDA processed 553 SSP payments totaling approximately $42,000 to 78 individuals who died from 1 to more than 16 years prior to their last SSP payment in the examination period.  Of the 553 payments, 380 were transacted, meaning the payment was either electronically deposited into the recipient’s bank account or the recipient’s check was negotiated. The remaining 173 payments were either stopped, escheated or remain uncashed.  

Office of Temporary and Disability Assistance: SSP Payments Made to State Employees (2016-BSE7-02)
OTDA processed 105 SSP payments totaling $6,870 to 14 state employees who were ineligible to receive benefits because the wages they earned exceeded the SSP income eligibility limits. As a result of the findings, OTDA determined the daily file from the Social Security Administration contained incorrect income eligibility information for an additional 3,000 SSP recipients. Officials planned to correct these 3,000 recipients’ records.


SUNY Downstate Medical Center failed to "get its money’s worth" from cost-cutting consultant

The State University of New York (SUNY)
Downstate Medical Center paid a consultant $34 million for a plan to help the hospital out of financial trouble, but a report released today by State Comptroller Thomas P. DiNapoli questions whether $74 million in savings even happened.

A prior DiNapoli audit released in August 2016 found questionable travel and excessive lodging expenses for the contractor, Pitts Management Associates (PMA), which it charged to SUNY Downstate while working on this project.

“SUNY Downstate’s fiscal problems were severe and it needed help. But it failed to monitor PMA’s $34 million contracts and did not get what it paid for,” DiNapoli said. “When my office is precluded from reviewing a contract, poor oversight requirements can lead to empty promises by vendors. This is another example of why proper contract oversight is needed to protect public dollars.”

Legislation passed in 2013 authorized SUNY Downstate to obtain services related to its restructuring without following state procurement requirements, including executing contracts without prior approval from DiNapoli’s office. The contract failed to clearly define how PMA would measure savings or delineate its responsibilities, nor did it include “claw back” cost recovery provisions for nonperformance. As a result, DiNapoli’s auditors found that PMA used unsound calculations and questioned more than $74 million of the $85 million in purported savings reviewed.

The flawed methodologies and magnitude of the discrepancies led DiNapoli’s auditors to question the reliability of the remainder of PMA’s total claimed savings of $138 million. They also concluded that SUNY Downstate officials did not properly monitor and assess PMA’s performance under the contract.

DiNapoli recommended that SUNY Downstate management:

● Establish clear agreements and contracts with vendors using measurable deliverables.

● Include cost recovery provisions in future contracts.

● Establish controls to properly administer future contracts, including:

● Effectively monitoring contractor progress; and

● Safeguard against a contractor’s failure to meet contract requirements, including monetary retainage, until the contractor meets the terms and conditions.

SUNY generally agreed with the recommendations but noted that under PMA several improvements were realized. The audit report notes where savings were achieved through the PMA contract. The complete response is included in the audit.

For a copy of the report, go to:

Friday, February 16, 2018

The authority of a court to modify an arbitration award is limited

The authority of a court to modify an arbitration award is limited
Matter of Lackawanna Professional Fire Fighters Assn., Local 3166, IAFF, AFL-CIO (City of Lackawanna), 2017 NY Slip Op 08994, Appellate Division, Fourth Department

Supreme Court Lackawanna Professional Fire Fighters Association's petition to confirm an arbitration award and granted the City of Lackawanna's motion to vacate the award. The Association appealed and the Appellate Division unanimously reversed the Supreme Court's ruling "on the law" confirmed arbitration award in favor of the Association.

The Appellate Division ruled that in this instance the arbitrator had merely interpreted and applied the provisions of the relevant collective bargaining agreement [CBA] as she had the authority to do.

The Appellate Division explained that a court is powerless to set aside the arbitrator's interpretation of the contract provision at issue "merely because the court disagrees with it" and a court may not countenance such an action. In any event, we conclude that the plain language of the CBA supports the arbitrator's reasoning. Nothing in the CBA suggests that the contribution requirement applies to retirees so as to render that language ambiguous. If the parties had wished to create such a requirement, they could have done so. Indeed, the record establishes that respondent previously proposed adding such a requirement to the CBA, but that proposal was rejected through collective bargaining.

By vacating the arbitration award, Supreme Court had effectively amended the CBA by adding a provision that the parties previously declined to adopt. Accordingly, the Appellate Division reversed the Supreme Court's order, granting the Association's petition to confirm the arbitration award.

§7511(b) of the Civil Practice Law and Rules sets out the limited grounds authorizing  a court's vacating an arbitration award as follows:

 1. The award shall be vacated on the application of a party who either participated in the arbitration or was served with a notice of intention to arbitrate if the court finds that the rights of that party were prejudiced by:

 (i) corruption, fraud or misconduct in procuring the award; or

 (ii) partiality of an arbitrator appointed as a neutral, except where the award was by confession; or

 (iii) an arbitrator, or agency or person making the award exceeded his [or her] power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or

 (iv) failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection.

The decision is posted on the Internet at:

Thursday, February 15, 2018

Police offices and firefighters applying for accidental disability retirement benefits must demonstrate that his or her incapacity was the "natural and proximate result of an accident" within the meaning of §363[a][1] of the Retirement and Social Security Law

Police offices and firefighters applying for accidental disability retirement benefits must demonstrate that his or her incapacity was the "natural and proximate result of an accident" within the meaning of §363[a][1] of the Retirement and Social Security Law
Kelly v DiNapoli, 2018 NY Slip Op 01016, Court of Appeals
Kowal v DiNapoli, 2018 NY Slip Op 01019, Court of Appeals

In these appeals, the Court of Appeals was asked to determine whether petitioners, both first responders, respectively established entitlement to accidental disability retirement benefits by demonstrating that they were incapacitated "as the natural and proximate result of an accident . . . sustained in . . . service" within the meaning of Retirement and Social Security Law §363[a][1].

Finding that neither of these two first responders had demonstrated that their respective injuries were caused by "sudden, unexpected events that were not risks inherent in their ordinary job duties," the Court of Appeals ruled that neither Kelly nor Kowal had established entitlement to the benefits that they, respectively, sought and affirmed the Appellate Division's decision in Matter of Kelly v DiNapoli, 137 AD3d 1470, and reverse the Appellate Division's decision in Matter of Sica v DiNapoli, 141 AD3d 799.

In Kelly the court concluded that he was expected to assist injured persons, and that responding to emergencies is among the ordinary duties of police officers. While it was not disputed that Kelly was acting within the scope of his job duties when he responded to that emergency call.

Although noting that under the circumstances a different result would not have been unreasonable, the Court of Appeals ruled that "there was substantial evidence in the record to support the determination that Kelly's actions in assisting the injured residents of the house during life-threatening conditions fell within his job duties, and that his injuries did not result from a sudden, unexpected event that was not a risk inherent in his duties as a police officer"

With respect to Sica, the court indicated that "the alleged accident was exposure to toxic fumes in the supermarket, leading to a disabling heart condition" but then observed that "Sica was fulfilling his regular duties as a firefighter in responding to [a] 911 call."

Noting that the Comptroller had found that Sica "exposure to toxic chemicals was a risk for which Sica had been trained, that he had responded to a gas leak in the past, and that his job duties specifically required 'working with exposure to . . . fumes, explosives, toxic materials, chemicals and corrosives,'" the Court of Appeals concluded that "it is not unexpected that a firefighter whose job duties required him to respond to emergency medical calls would be exposed to toxic fumes in responding to a call for difficulty breathing."

Thus, said the court, the Comptroller "rationally concluded that Sica's injuries were the result of a risk inherent in his ordinary duties as a firefighter."

Matter of Kelly v DiNapoli is posted on the Internet at:

Matter of Kowal v DiNapoli is posted on the Internet at:

Disability Benefits for fire, police and other public sector personnel 
NYPPL's e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information click on  http://booklocker.com/books/3916.html



A violation of a agency policy or procedure does not constitute an actual violation of law, rule or regulation sufficient to sustain a cause of action within the meaning of §740(2) of the Labor Law

A violation of a agency policy or procedure does not constitute an actual violation of law, rule or regulation sufficient to sustain a cause of action within the meaning of §740(2) of the Labor Law
Young v Madison-Oneida Bd. of Coop. Educ. Servs., 2017 NY Slip Op 08960, Appellate Division, Fourth Department

The Plaintiff in this action was formerly employed by Madison-Oneida Board of Cooperative Educational Services (BOCES) as Assistant Director of Alternative Education. When Plaintiff's term of appointment expired BOCES did not reappoint Plaintiff to the position.

Plaintiff then commenced this action alleging unlawful retaliatory action under Labor Law §740(2), the "whistle-blowers' statute," by BOCES and the individual defendants, who were BOCES employees during the period of Plaintiff's employment there.

Supreme Court granted BOCES' motion for summary judgment, which ruling the Appellate Division affirmed. The Appellate Division explained that to prevail in the Labor Law §740(2) cause of action, Plaintiff had the burden of proving that BOCES retaliated against him because he "disclose[d] or threaten[ed] to disclose to a supervisor or to a public body an activity, policy or practice of [BOCES] that [was] in violation of law, rule or regulation which violation creat[ed] and present[ed] a substantial and specific danger to the public health or safety" or because he "object[ed] to, or refuse[d] to participate in any such activity, policy or practice in violation of a law, rule or regulation."

BOCES, however, established as a matter of law that the conduct on their part that was alleged by Plaintiff did not amount to violation of law, rule or regulation under the statute. Petitioner's complaint of BOCES alleged wrongful conduct, said the court, even had Plaintiff proven such wrongdoing "did not constitute an 'actual violation of law to sustain a cause of action' under Labor Law §740(2).

The Appellate Division opined that "BOCES alleged violations of its internal procedures do not qualify as a law, rule or regulation under the statute."

The decision is posted on the Internet at:

Monday, February 12, 2018

Sovereign Immunity, Absolute Immunity, Qualified Immunity, Use Immunity, Transaction Immunity and Qualified Privilege claims that may be advanced by public officers and employees involved in litigation and, or, administrative hearings

Sovereign Immunity, Absolute Immunity, Qualified Immunity, Use Immunity, Transaction Immunity and Qualified Privilege claims that may be advanced by public officers and employees involved in litigation and, or, administrative hearings

As the Appellate noted in Brady v New York County Dist. Attorney's Off., 2018 NY Slip Op 00895, Appellate Division, First Department, a public officer may be entitled to claim absolute immunity as a defendant in a lawsuit under certain circumstances. This posting considers some common types of immunities available to officers, employees and others that may be claims in the course of litigation or administrative actions.

In an action brought pursuant to 42 USC §1983 and state law, Brady contended that Defendants had refused to investigate his allegations of judicial corruption. The failure, he argued, constituted gross negligence, willful misconduct, prima facie tort, negligent infliction of emotional distress, and a violation of the equal protection clause.  that under 42 USC § 1983 and state law.

The Court of Claims granted Defendants' motion to dismiss Claim No. 126268 as against the State and the Attorney General's Office, and Claim No. 126067 as against the State and the Attorney General's Office. The Appellate Division unanimously affirmed the Court of Claim's ruling.

The Appellate Division explained that "To the extent any of [those] defendants can be sued at all, they are protected by absolute prosecutorial immunity, which applies to the decision whether or not to initiate a prosecution as well to the investigative and administrative acts that are intertwined with [those decisions], such as the decision not to investigate a complaint.

Depending on the circumstances, public officers and employees may enjoy other forms of immunity including sovereign immunity qualified immunity, transaction or use immunity,

In Alston v State of New York, Ct. of Appeals, 97 N.Y.2d 159, the court addressed the doctrine of sovereign immunity, explaining that sovereign immunity generally shields a state from suit absent its consent. In Alden v Maine, 527 US 706, the Supreme Court of the United States found that State sovereign immunity is "implicit in the constitutional design." States have claimed sover­eign immunity with respect to their being sued in federal court for alleged violation of various acts of Congress including the Fair Labor Standards Act. New York's claim of sovereign immunity was a critical element in resolving the Alston case.

However, a governmental entity operating in a public capacity may loose its right to claim sovereign immunity in litigation if it is found that the underlying cause of action involved its acting in a proprietary capacity as the Court of Appeals indicated in Connolly v Long Is. Power Auth., Court of Appeals, 2018 NY Slip Op 01148. 

The issue before the Court of Appeals in Connolly was whether the defendants, the  Long Island Power Authority (LIPA), Long Island Lighting Company (LILCO), and National Grid Electric Services, LLC (National Grid) were, collectively entitled to dismissal of plaintiffs' amended complaints on the rationale that the actions challenged were governmental and discretionary as a matter of law. 

The court rejected the defendants argument that assuming their actions were not discretionary, "plaintiffs' failure to allege a special duty is a fatal defect." Rather, the Court of Appeals ruled that because defendants had not met their threshold burden of demonstrating that the action was governmental in the context of its "pre-answer, pre-discovery CPLR §3211(a)(7) motions," it could not concluded that plaintiffs' complaints fail to state causes of action as a matter of law.

The Court of Appeals also took note of the fact that LIPA was a public authority that was created by the legislature as a "corporate municipal instrumentality of the state . . . which shall be a body corporate and politic and a political subdivision of the state, exercising essential governmental and public powers," and authorized it to operate in LILCO's service area (Public Authorities Law §1020-c [1], [2]).

It then explained that it is "well settled that, "[d]espite the sovereign's own statutory surrender of common-law tort immunity for the misfeasance of its employees, governmental entities somewhat incongruously claim — and unquestionably continue to enjoy — a significant measure of immunity fashioned for their protection by the courts" (Haddock v City of New York, 75 NY2d 478, 484 [1990]). 

The doctrine of governmental function immunity "reflects separation of powers principles and is intended to ensure that public servants are free to exercise their decision-making authority without interference from the courts," citing Valdez v City of New York, 18 NY3d 69. Additionally, said the Court of Appeals, "this immunity reflects a value judgment that — despite injury to a member of the public — the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury."

Because the issue in this CPLR §3211(a)(7) motion is whether plaintiffs' complaints have stated a viable claim, the first issue that to be considered "is whether the . . . entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose. This is because if the action challenged in the litigation is governmental, the existence of a special duty is an element of the plaintiff's negligence cause of action.

As the court explained in (Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428, "[w]hen the liability of a governmental entity is at issue, it is the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred which governs liability."

Assuming the government entity was acting in a governmental capacity, the court observed that a plaintiff may nevertheless state a viable claim by alleging the existence of a special duty to the plaintiff, citing Turturro, 28 NY3d at 478. 

In Turturro v City of New York, 28 NY3d 469, the court explained that a government entity performing a purely proprietary, non-governmental role when its activities essentially substitute for or supplement traditionally private enterprises. In contrast, a government entity will be deemed to have been engaged in a governmental function when its acts are undertaken for the protection and safety of the public pursuant to the general police powers.

If the plaintiff establishes the elements of the cause of action, including special duty, the government entity can avoid liability under the governmental function immunity defense by proving the challenged actions were discretionary in nature and that discretion was, in fact, exercised. However, because the governmental immunity defense protects government entities from liability only for discretionary actions taken during the performance of governmental functions, "[t]he . . . defense has no applicability where the [entity] has acted in a proprietary capacity, even if the acts of the [entity] may be characterized as discretionary."

Viewing plaintiffs' allegations in the light most favorable to plaintiffs, "as [the Court of Appeals] must given the procedural posture" of this action, plaintiffs' allegations concern the providing of electrical power by defendants, a service that traditionally has been provided by private entities in the State of New York., nor does LIPA dispute that the provision of electricity traditionally has been a private enterprise which, in the normal course of operations, would be a proprietary function.

Accordingly, the Connolly court concluded that it could not, as "a matter of law based only on the allegations in the amended complaints, as amplified," conclude that LIPA was acting in a governmental, rather than a proprietary, capacity when engaged in the conduct claimed to have caused plaintiffs' injuries.

The Doctrine of Absolute Immunity insulates certain public officials from civil lawsuits involving the performance of their official duties. Included among those protected by “absolute immunity” are legislators in connection with their legislative duties and judicial and quasi-judicial officers performing judicial or quasi-judicial functions. 

However, in some situations such immunity dissolve in the face of  procedural omissions. For example, sovereign immunity may be waived as proved in Court of Claims Act Section 8. However, the State retains its immunity as to these claims in the event  claimants fail to comply with the time limitations set forth in Court of Claims Act Section 10(4), upon which the [State's] waiver is conditioned. In other words, the State's waiver of sovereign immunity pursuant to the Court of Claims Act is not absolute, but was condi­tioned upon a claimant's compliance with the limitations on the waiver, including the relevant filing deadlines.

In contrast to the Doctrine of Absolute Immunity, Doctrine of Qualified Immunity, in Doninger v. Niehoff, USCA, Second Circuit, Docket Nos. 09–1452–cv (L), 09–1601–cv (XAP), 09–2261–cv (CON) the court addressed the issue of determining if a public officer may claim a qualified immunity from civil lawsuits. The Second Circuit said that two tests are involved in determining if a claim of qualified immunity is available to the officer or the employee.

The first test: considering “the facts" in the light most favorable to the plaintiff, do they show that the [individual's] conduct violated a constitutional right. If the plaintiff’s cause of action survives this test, the court then applies a second test: whether the right at issue was ‘clearly established’ at the time of [the official's] alleged misconduct.”

If the court finds that the public officer’s conduct did not violate a clearly established constitutional right, or if it was objectively reasonable for the officer to believe that his or her conduct did not violate such a right, then the official is protected by qualified immunity.

In determining if a right is clearly established, the Second Circuit said that it looks to whether (1) it was defined with reasonable clarity, (2) the Supreme Court or the Second Circuit has confirmed the existence of the right, and (3) a reasonable defendant would have understood that his conduct was unlawful. Significantly, the court said that “The question is not what a lawyer would learn or intuit from researching case law, but what a reasonable person in [the official’s] position should know about the constitutionality of the conduct.”

Citing
Harlow v. Fitzgerald, 457 U.S. 800, the Second Circuit concluded that “it would gravely distort the doctrine of qualified immunity to hold that a school official should fairly be said to ‘know’ that the law forb[ids] conduct not previously identified as unlawful.”

In Harlow the U.S. Supreme Court held that “government officials performing discretionary functions are generally shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

Another area in which a qualified privilege may be asserted involves communication. For example, an employee's conduct or behavior may be the subject of oral or written communications between administrators or administrators and employees. If the employee objects to the content of such communications, he or she may sue the employer and the individuals involved for defamation, claiming the contents of the communications concerning his or her behavior constitutes slander [if oral] or libel [if written].

The individuals being sued for defamation in such cases will often respond that the statements they made in such communications are privileged and thus they are immune from liability for their actions.

In Herlihy v Metropolitan Museum of Art, 214 A.D.2d 250, the Appellate Division considered such a case.

The issue arose when a number of individuals serving as volunteers with the Metropolitan Museum of Art complained that their supervisor, Cecile Herlihy, directed racial or ethnic epithets towards them. Herlihy denied the charges. After what the Appellate Division characterized as "some sort of investigation," Herlihy was directed to "apologize for her remarks."

Ultimately Herlihy was dismissed by the Museum. She sued, claiming, among other allegations, that she had been slandered when charged with directing racial or ethnic epithets towards the volunteers making the complaint.

The defendants, on the other hand, argued that their statements were protected by an absolute or qualified immunity for the following reasons:

The Appellate Division addressed each of their arguments in turn, holding that the following guidelines apply:

1. Statutory provisions prohibiting retaliation for filing civil rights complaints do not protect "bad faith complainants making false discriminatory related charges" from defamation actions that might arise following the filing of such complaints.

2. Common-law provides absolute immunity from defamation actions "only to those individuals participating in a judicial, legislative or executive function and is based on the personal position of status of the speaker."

3. Under New York law, a "qualified privilege" or a "qualified immunity" applies only in situations involving "good faith communications by a party having an interest in a subject, or a moral or societal duty to speak, ... made to [another] party having a corresponding interest."

With respect to claims of absolute immunity under common-law, the Appellate Division noted a ruling by the Court of Appeals concluded that a private citizen speaking at a public hearing "was not conferred with absolute privilege because, unlike members of the ... Board, the [individual] had no office at the hearing [see 600 West 115th St. Corp. v Von Gutfeld, 80 NY2d 130]. The Appellate Division ruled that the defendants in this action did not enjoy absolute immunity under common-law because "they did not make their statements in an official capacity while discharging a governmental duty, nor were the statements made during, or for, a judicial, quasi-judicial or administrative hearings."

In considering the defendant's claim to a qualified privilege, the Appellate Division said that "the underlying rationale behind a qualified privilege is that so long as the privilege is not abused, the flow of information between parties sharing a common interest should not be impeded." A qualified privilege will be lost, however, if the statements claimed to be defamatory were "published with malice or with knowledge of their falsity or reckless disregard as to their truth or falsity...." 

The decision indicates that "common interest warranting a qualified privilege" has been found to exist between employees of an organization [Loughry v Lincoln First Bank, 67 NY2d 369], members of a faculty tenure committee [Stukuls v State of New York, 42 NY2d 272], and employees of a board of education [Green v Kinsella, 36 AD2d 677].

How did the Appellate Division resolve this case? First it upheld the lower court's ruling dismissing Herlihy's action against the Museum for "emotional distress." It then held that "it would be inconsistent to deny an action for emotional distress caused by [being charged] with the use of ethnic slurs while allowing one for being falsely labeled as a user of such slurs." Accordingly, the Appellate Division concluded that Herlihy's action for slander should be dismissed as well.

The Court said that although the racial or ethnic epithets attributed to Herlihy were "deplorable and ... evidence of a certain narrow-mindedness and mean-spiritedness ... [it] ... does not rise to the level of outrage required to recover under a cause of action that is limited to only the most egregious acts." In other words, the allegations of the defendants were not so egregious as to be sufficient to allow Herlihy to recover for being falsely labeled a user of such slurs.

Compelling an employee to answer work-related questions may result in another form of immunity, typically referred to transactional or use immunity.

Compelling an employee to answer work-related questions has been considered by New York and Federal courts in a number of cases. Below are listed some of the holdings by courts concerning some basic “Fifth Amendment considerations” in the context of administrative disciplinary action. Essentially testimony provided under threat of loss of the individual’s public employment may not be used as a basis for, or in, subsequent criminal prosecution involving that individual. The Court of Appeals addressed this issue in People v Corrigan, 80 NY2d 326. In Corrigan the Court of Appeals explained that under both state and federal law any statement made under the threat of dismissal is protected by the privilege against self-incrimination and is “automatically immunized from use in criminal proceedings.”

The high court said that the immunity that attaches to any statement that a public worker gives under compulsion bars the use of the statement itself, as well as any evidence derived directly or indirectly from it, in any criminal prosecution.

However, an employee otherwise entitled to such immunity flowing from admissions or statements made in the course of a disciplinary investigation because it had been compelled under threat of termination, in Seabrook v Johnston, 660 NY2d 311, United States v Apfelbaum, 445 U.S. 115 the courts indicated that such immunity would dissolve. In other words, transactional or use immunity does not permit the individual to lie.

Indeed, the U.S. Supreme Court unanimously held that a federal government agency could impose a harsher discipline on an employee who lied while being investigated for job-related conduct. Although only federal employees were involved, the ruling may influence cases involving state and local employees.

Further, in Brogan v United States, 522 US 398, the Supreme Court upheld the conviction of a former union official who falsely answered a federal investigator's questions. The Court held that the Fifth Amendment privilege against self-incrimination does not bar prosecuting an individual who answers questions falsely in contrast to his or her refusing to answer the same inquiries.

There are a number of exceptions to an employee claiming transaction or use immunity. For example, in Greco v Board of Nursing Home Examiners, 91 AD2d 1108, the Appellate Division has held that an administrative disciplinary action may proceed notwithstanding the claimed immunity. A Special Prosecutor granted Greco “transactional immunity from prosecution” in connection with a criminal matter in exchange for his cooperation. The Nursing Home Examiners subsequently revoked Greco’s nursing home administrator’s license.

The Appellate Division, in a split decision, rejected Greco’s argument that his immunity barred revocation of his license. The court ruled, “a prosecutor cannot divest an independent body of its lawful discretion by promising broad immunity.” This is consistent with the view that an administrative disciplinary action based on the same events that may have resulted in a criminal prosecution is not “double jeopardy.” Had the board been a party to the granting of immunity, however, it would have been bound by the agreement.

In addition, in Dacey v County of Dutchess, 121 AD2d 536 the Appellate Division ruled that statements made by an employee to the police during an investigation of criminal charges filed against the employee constitutes “competent evidence” and may be admitted into evidence during the administrative disciplinary hearing. In contrast, where the administrative disciplinary action precedes criminal action, in the event the appointing authority threatens to terminate or take other adverse action against an employee if he or she does not answer work-related questions, the employee’s answers to those questions are automatically shielded from use in a subsequent criminal prosecution under the doctrine of “transactional immunity” or “use immunity.”

Other immunity-related issued may involve witnesses who may have participated in wrongdoing. Such witnesses are not automatically granted transactional or use immunity by virtue of their testimony in an administrative procedure.

Further, an administrative tribunal cannot bind the district attorney by a promise of immunity from criminal prosecution in exchange for the individual’s testimony as a witness at an administrative hearing. By the same token, the district attorney cannot bind an administrative tribunal with respect to its exercising its lawful authority. If immunity is a consideration, the witness must be granted such immunity by the appropriate authority in order for it to be effective and binding on that authority.

In Matt v LaRocca, 71 NY2d 154, the Court of Appeals said that the State “may compel any person enjoying a public trust to account for his activities and may terminate his services if he refuses to answer relevant questions, or furnishes information indicating that he is no longer entitled to public confidence.”

In addition, the Attorney General noted that the United States Supreme Court in Garner v Broderick, 392 US 273, held that if an public officer or employee refuses to answer questions specifically, directly and narrowly related to the performance of his official duties and is not required to waive immunity with respect to the answers in a criminal prosecution, the constitutional privilege against self-incrimination would not bar termination for such refusal to answer.

In the event an individual fails to answer questions truthfully where he or she has use or transactional immunity, such immunity does not prevent any false answer the individual might give the investigator from being used against the individual if he or she is subsequently charged with perjury [United States v Apfelbaum, 445 US 115].

Further, the Court said that the Fifth Amendment privilege against self-incrimination does not prevent the government from prosecuting an individual who answers questions falsely in contrast to his or her refusing to answer the same inquiries by claiming the protection of the Fifth Amendment.

On the issue of “off-duty” conduct, however, the Attorney General said that there is no explicit statement in case law to the effect that a public officer or employee may be compelled to answer questions concerning such activities. The opinion then indicated that “presumably some off-duty activities are relevant to an employee's performance of his public trust ... a factual determination that must be made on a case-by-case basis.”

The Attorney General concluded that an “internal affairs division [of a law enforcement agency] may compel officers to answer questions directly relating to their official duties, assuming that no waiver of immunity is required,” suggesting that “it would be wise to coordinate the department's investigation of such persons with the district attorney's office.” [Informal Opinion of the Attorney General 93-12].

The Eleventh Amendment of the United States Constitution provides another barrier to suing a State in federal court in that it provides that the judicial power of the United States "shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens of any Foreign State." This means that the Eleventh Amendment generally bars federal courts from taking jurisdiction over lawsuits against state officials acting in their official capacities when the state is the real party at interest unless [1] the State has properly waived it right of immunity to being sued in federal court; [2] Congress has abrogated the state's immunity from suit through an unequivocal expression of its intent to do so through a valid exercise of its legislative power; or [3] where the plaintiff is seeking  prospective equitable relief for ongoing violations of federal law.

In a nutshell, Alden v Maine, US Supreme Court, 527 U.S. 706, explains that “Congress lacks power under Article I to abrogate the States’ sovereign immunity from suits commenced or prosecuted in the federal courts.” Further, the court held that “the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting states to private suits for damages in state courts.” This means that state workers are unable to sue their employer concerning alleged FLSA violations unless it has consented to such suits.

However, the “overtime provision” set out in Section 134 of New York’s Civil Service Law preceded Congress’ attempt to make the states subject to FLSA. Accordingly, it could be argued that New York State, as an employer, did not “deliberately” waived its Eleventh Amendment immunity from suit by state workers for alleged violations of the FLSA in federal court based on the decision in Mueller v Thompson.

As noted in Mueller v Thompson, 858 F.Supp. 885, should a state adopts the FLSA as state law and allows state employees to sue it for alleged violations of the state’s law, it loses its Eleventh Amendment immunity from suit by its employees brought in the federal courts for alleged violations of the federal FLSA [Mueller v Thompson, 858 F.Supp. 885].

In contrast, as the Second Circuit held in Beaulieu v State of Vermont, US Circuit Court of Appeals, Second Circuit, Docket #13-4198-cv, although a State’s removing a private lawsuit from State court to Federal court waives a State’s 11thAmendment immunity, such removal may not affect its general claim to sovereign immunity.

Further, political subdivisions of a State are not "states" within the meaning of the 11th Amendment as the Second Circuit Court of Appeals held in Carrie Gorton v Bruce Gettel and Sullivan County BOCES, USCA, 2nd Circuit, Docket # 17-3190-cv.

The Second Circuit, noted that in earlier cases it had held that neither local school boards [Woods v. Rondout Valley Cent. School Dist. Bd. of Educ., 466 F.3d 232] nor local school districts in
New York State were arms of the state [Fay v. S. Colonie Cent. School Dist., 802 F.2d 21] and thus not within the ambit of Eleventh Amendment immunity available to states explained that “[A]s a general rule, state governments may not be sued in federal court unless they have waived their Eleventh Amendment immunity [and] Eleventh Amendment immunity extends to “state agents and state instrumentalities that are, effectively, arms of a state.” In contrast, said the court, such immunity does not extend to suits against municipal corporations or other governmental entities that are not an arm of the state.

The court cited six factors determine whether an entity is an arm of the state:

(1) how the entity is referred to in its documents of origin;

(2) how the governing members of the entity are appointed;

(3) how the entity is funded;

(4) whether the entity’s function is traditionally one of local or state government;

(5) whether the state has a veto power over the entity’s actions; and

(6) whether the entity’s financial obligations are binding upon the state.”

Finding that Sullivan County BOCES is a locally run entity affiliated with local school districts, the Circuit Court concluded that its liability would not reflect adversely on New York State and thus did not satisfy at least one of these six criteria. The court rejected BOCES argument that it should enjoy immunity because the legislature has promulgated specific laws governing BOCES and because
New York State treats BOCES differently than school districts. The Circuit Court opined that “This argument does not discharge [BOCES’] burden of showing that it is entitled to Eleventh Amendment immunity and thus the District Court was correct in denying its motion for summary judgment on the ground of Eleventh Amendment immunity."

Significantly, individuals employed by a government agency for a particular assignment may be eligible for the same qualified immunity enjoyed by individuals on the staff of the agency. In Filarsky v. Delia, USSC, No. 10–1018, the petitioner appealed a decision by the 9th Circuit Court of appeals holding that an individual hired by a government agency to do its work is ineligible to claim a qualified immunity in the event he or she is sued for some act or omission related to the service he or she is providing the government agency solely because he or she serves with the agency other than on a permanent or full-time basis. Here the court decided that a “private attorney,” was not a City employ­ee and thus was not entitled to claim the protection of a qualified immunity. The United States Supreme Court disagreed.

In this case, said the court, there was no dispute that qualified immunity was available the individuals employed by the jurisdiction as an employer and the 9th Circuit Court of Appeals granted this protection to the jurisdiction’s employees. It, however, denied such protection to the “private attorney” working with the public officials “because he was not a public employee but was instead a private individual ‘retained by the City to participate in internal affairs investigations.'"

The court said that in de­termining whether this distinction is valid, it considered the “general principles of tort immunities and defenses” appli­cable at common law, and the reasons the court earlier afforded such protection from lawsuit under 42 USC §1983.

The Supreme Court’s rationale: Although not a public em­ployee, the private attorney, was retained by the City to assist in conducting an official investigation into potential wrong­doing. The court said that there was no dispute that government employees performing such work were entitled to seek the protection of qualified immunity. The common law does not draw any distinction between a public employee and a private attorney in this regard.

Further, citing Richardson v. McKnight, 521 U. S. 399, the Supreme Court noted that “This does not mean that a private individual may assert qualified immunity only when working in close coordina­tion with government employees.” Such immunity also available to others acting on behalf of the government and similarly serves to “ensure that talented candidates [are] not de­terred by the threat of damages suits from entering public service.” However, Justice Sotomayor, in her concurring opinion, commented “… it does not follow that every private individual who works for the government in some capacity necessarily may claim qualified immunity when sued under 42 U.S.C. §1983. Such individuals must satisfy [the court’s] usual test for conferring immunity.”


Selected "immunity" decisions



A government official performing a discretionary function is entitled to qualified immunity unless violative of an individual's statutory or constitutional rights.Cavanaugh v Doherty, Appellate Division, 243 A.D.2d 92

A two prong test is applied in determining if a public official is entitled to "qualified immunity" when he or she is sued. Coollick v. Hughes, USCA, 2nd Circuit, 10-5248-cv

Availability of absolute or qualified privilege in judicial and quasi-judicial actions.
Rosenberg v Metlife, Inc, 8 NY3d 359

Claim of qualified immunity not available to a public official when the law giving rise to the violation was clearly established at the time of the alleged violation. Morse v Fusto, US Circuit Court of Appeals, Second Circuit, Docket 13-4074

Eleventh Amendment immunity lost should a state adopt the Fair Labor Standards Act as state law. Mueller v Thompson, CA7, 133 F.3d 1063

Employee must answer questions concerning work if granted “use immunity.” Tanico v. McGuire, 80 AD2d 297

Family Medical Leave Act and the Doctrine of Eleventh Amendment
Immunity.Lambert v NYS Office of Mental Health, USDC, EDNY, Judge Gleeson, 97-CV-1347

Grand jury witness may claim absolute immunity regarding his or her perjurious testimony with respect to any §1983 claim based on such perjurious testimony
Idrissa Adamou v Detective Edward J. Doyle [in his individual capacity], USCA 2nd Circuit, No. 17255 [Summary Order]

In order to prevail on a governmental function immunity defense, a municipality must do much more than merely allege that its employee was engaged in activities involving the exercise of discretion. Whether an action of a governmental employee or official is cloaked with any governmental immunity requires an analysis of the functions and duties of the actor's particular position and whether they inherently entail the exercise of some discretion and judgment. If these functions and duties are essentially clerical or routine, no immunity will attach. Valdez v City of New York, 18 NY3d 69.

Lewiston Golf lacks sovereign immunity because the Seneca Nation does not have legal title or ownership of the golf course being developed by Lewiston Golf. The issue is whether the property used by Lewiston Golf is owned by the tribe, and the record leaves no room for doubt that the owner of the golf course is Lewiston Golf, not the Seneca Nation. Sue/Perior Concrete & Paving, Inc. v Lewiston Golf Course Corp.

Police chief held to have qualified immunity with respect to First Amendment violation allegations. Gubitosi v. Kapica, CA2, 154 F.3d 30

Refusal to answer questions during an administrative disciplinary investigation. Matter of Eck v County of Delaware, 36 AD3d 1180 

States do not have immunity from suit in the courts of other states. Nevada v Hall, 440 US 410.

Strong public policy against liability based on testimony in judicial proceedings holds that a witness should not subjected to potential liability for testimony uttered at solely at a judicial hearing. In contrast, where a plaintiff relies on evidence independent of the testimony at a judicial proceeding or hearing, the public officer or a public employee may not invoke the doctrine of absolute immunity. De Lourdes Torres v Jones, 26 NY3d 742.

Superior reporting employee's misconduct had either absolute immunity or qualified immunity from liability. Taylor v Brentwood UFSD, CA2, 143 F.3d 679

The Doctrine of Sovereign Immunity held to have been waived with respect to litigation challenging an arbitration award. In Re: The Arbitration Between Hawai'i State Teachers Association and the State of Hawai'i, Department of Education, Hawai'i Supreme Court, SCWC-11-0000065

The Port Authority was created in 1921 by a bi-state compact between New York and New Jersey. As an agency of two sovereign states, it cannot be sued without a waiver of sovereign immunity. Such a waiver was enacted by both states' legislatures in 1950. The New York version of the legislation is found in §§7101 through 7112 of the Unconsolidated Laws; Unconsolidated Laws §7101 says that consent to suit against the Port Authority is given by New York "[u]pon the concurrence of the state of New Jersey." §§7106 and 7107 state conditions to the consent. In the Matter of New York City Asbestos Litigation, 24 NY3d 275.

The U.S. Second Circuit Court's tests for sovereign immunity. Leitner v Westchester Community College, USCA, 2nd Circuit, 14-1042-cv

Where available, the Doctrine of Absolute Privilege defeats a plaintiff's defamation claim. Murphy v City of New York, 2008 NY Slip Op 31926(U), Supreme Court, New York County, Docket Number: 0106059/2006, Judge: Karen Smith [Not selected for publication in the Official Reports.]

Where there is a rational process by which the jury could have concluded that the City's negligence was a proximate cause of the accident the doctrine of qualified immunity did not apply. Turturro v City of New York, 28 NY3d 469.

With respect to recoveries against "the state" as well as "any civil division thereof," to the extent that a statute allows recovery against the State, the statute waives the State's sovereign immunity. Such waivers are to be strictly construed and "waiver of immunity by inference being disfavored. Sharapata v Town of Islip, 56 NY2d 332.


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