Wednesday, February 28, 2018
Tuesday, February 27, 2018
The individual's retiring from his or her position to avoid disciplinary action may have unexpected consequences
Sometimes a disappointed retiree, as did Castro, alleges his or her termination constituted the employer acting in bad faith.
Penalty of dismissal recommended for an employee found guilty of violating the public trust and other disciplinary charges
Monday, February 26, 2018
Complying with administrative procedural requirements prior initiating litigation seeking information pursuant to the Freedom of Information Law
Sunday, February 25, 2018
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
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].
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
Saturday, February 17, 2018
Audits and examination reports issued during the week ending February 16, 2018 by NYS Comptroller Thomas P. DiNapoli
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.
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
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] of the Retirement and Social Security 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
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
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.
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.
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.
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.
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 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."
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].
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."
Selected "immunity" decisions
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
States do not have immunity from suit in the courts of other states. Nevada v Hall, 440 US 410.
Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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