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State of New York vs. COVID-19 - Governor Andrew M. Cuomo periodically updates New Yorkers on the state's progress during the ongoing COVID-19 pandemic. The latest reports of the number of new cases, the percentage of tests that were positive and many other relevant data points concerning COVID-19 are available at forward.ny.gov.
N.B. §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL applies this protocol to individuals referred to in a decision self-identifying as LGBTQA+.
June 30, 2020
A police officer forfeited his qualified immunity by using excessive force against an individual who posed no threat to the officer or to others
June 29, 2020
Conditioning the disclosure of material sought pursuant to a FOIL request upon the prepayment of costs authorized by statute
June 28, 2020
The Text of Policy Bulletin No. 2020-03 is posted on the Internet at:
* The Executive Order is posted on the Internet at
Links to the most popular NYPPL postings during the week ending June 27, 2020 as reported by Google Statistics.
June 27, 2020
Audits of New York State Department and Agencies and political subdivisions of the State issued during the week ending June 26, 2020
June 26, 2020
Sanctions imposed on a party held in contempt for failure to comply with a confirmed arbitration award
June 25, 2020
June 24, 2020
Determining if a work assignment constitutes out-of-title work prohibited by Civil Service Law §61(2)
Supreme Court dismissed the New York Public Employees Federation's [PEF] Article 78 petition alleging that certain parole officers and senior parole officers [Petitioners] represented by PEF assigned to the Nassau County Parole Office were required to perform out-of-title work. PEF appealed the ruling.
Citing New York State Corr. Officers and Police Benevolent Assn., Inc. v Governor's Off. of Empl. Relations, 105 AD3d 1192,** the Appellate Division pointed out that not all additional duties constitute out-of-title work. The dispositive question is whether "the new duties are appropriate to [the employee's] title and/or are similar in nature to, or a reasonable outgrowth of, the duties listed in [the employee's] job specifications."
In other words, the fact that an employee is not performing certain duties set out in the job description, assigning the individual to perform such duties does not constitute the performance of of out-of-title work.
Although such duties were routinely assigned to institutional safety officers, the Governor's Office of Employee Relations [GOER] determined, upon a review of the relevant classification standards, that the duties could be appropriately performed by properly classified parole officers and senior parole officers and, thus, that the assignments were not out-of-title.
In reviewing GOER's determination, the Appellate Division opined that its review was limited to assessing whether the record as a whole provides a rational basis for GOER's determination and the administrative decision would not be disturb it unless it is wholly arbitrary or lacking a rational basis.
Given the training and qualifications possessed by parole officers and senior parole officers, as well as the similarities between the grieved duties and those enumerated in the applicable classification standards, the Appellate Division said that it found a rational basis exists to support GOER's determination that the assigned duties did not constitute out-of-title work.
Thus, opined the Appellate Division, as there is no basis to disturb GOER's denial of the grievances and sustained Supreme Court's dismissal of PEF's Article 78 petition.
** See http://www.nycourts.gov/reporter/3dseries/2013/2013_02445.htm
June 23, 2020
The federal District Court dismissed Plaintiff's complaint under color of University having Eleventh Amendment immunity and Plaintiff appealed.**
The U.S. Circuit Court of Appeals, Second Circuit, held that the district court properly dismissed Plaintiff's claims in consideration of the Eleventh Amendment, "which precludes suits against states unless the state expressly waives its immunity or Congress abrogates that immunity, neither of which occurred here."
State institutions of higher education such as University, explained the Second Circuit, are arms of the State of New York for Eleventh Amendment purposes and are therefore entitled to Eleventh Amendment immunity.***
The court noted that the question of whether Eleventh Amendment immunity constitutes a true issue of subject matter jurisdiction or is more appropriately viewed as an affirmative defense ”has not yet been decided by the Supreme Court or this Court." However the Circuit Court concluded that the issue need not be addressed within the ambit of Plaintiff's appeal because the answer would not affect its decision to affirm the District Court's ruling.
A summary of common types of "immunity and qualified privilege" that may be claimed by a public employer and its officers and employees involved in litigation where the performance of official duties is a consideration is posted on the Internet at:
** Plaintiff also appealed the denial of his motions for recusal of certain judges and the disqualification of opposing counsel.
*** Plaintiff contended that the Eleventh Amendment cannot bar the prospective relief he seeks — the termination of the University’s federal funding. The Circuit Court noted that the exception to Eleventh Amendment immunity for prospective relief applies only when a state official is sued, which Plaintiff had not done.
Public Personnel Law E-books
The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 700 page e-book. For more information click on https://booklocker.com/books/5215.html
A Reasonable Disciplinary Penalty Under the Circumstances - A 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. For more information click on http://booklocker.com/books/7401.html
The Layoff, Preferred List and Reinstatement Manual - A 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html