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

A complaint brought pursuant to 42 U.S.C. §1983 alleged that a number of New York City police officers [Defendants] used excessive force against Plaintiff in the course of his being arrested. The jury found that only one officer, Officer A, used excessive force against the Plaintiff when Officer A used "two taser cycles" against him.*

The federal district court granted Officer A's motion claiming qualified immunity** and dismissed Plaintiff's complaint "as a matter of law." Plaintiff appealed the ruling to the U.S. Circuit Court of Appeals, Second Circuit.

The Circuit Court reversed the lower court's decision, explaining that the evidence before the jury allowed it to reasonably conclude that Plaintiff was no longer resisting arrest and was not a safety threat to the officers, or others, at the time of Officer A used the taser against him a second time.

Citing Garcia v. Dutchess County, 43 F. Supp. 3d 281, in which the federal district court in that action concluded that “[i]t was . . . clearly established law in the Second Circuit as of April 2000 that it was a Fourth Amendment violation to use ‘significant’ force against arrestees who no longer actively resisted arrest or posed a threat to officer safety," the Circuit Court vacated the district court’s judgment and remanded the matter "for proceedings consistent with this opinion."

* The jury found that the other officers present during Plaintiff's arrest were not liable. 

** Jones v Muniz, posted on the Internet at

The Second Circuit Court's decision is posted on the Internet at:

June 29, 2020

Conditioning the disclosure of material sought pursuant to a FOIL request upon the prepayment of costs authorized by statute

Supreme Court, among other things, granted Petitioners' motion to prohibit the School District's imposition of costs under color of Public Officers Law §87(1) related to Petitioners' request pursuant to the Freedom of Information Law [FOIL]. School District appealed.

The Appellate Division unanimously affirmed the lower court's decision, explaining that School District "failed to demonstrate sufficient justification for the costs sought to be imposed pursuant to §87(1)." 

Citing Matter of Weslowski v Vanderhoef, 98 AD3d 1123, the Appellate Division opined that in the event an agency conditions disclosure of material sought pursuant to FOIL upon the prepayment of costs or refuses to disclose records except upon prepayment of costs, the agency has the burden of articulating a particularized and specific justification' for the imposition of those fees."

In the words of the Appellate Division: "Specifically, the agency must demonstrate that the fees to be imposed are authorized by the cost provisions of FOIL" and found that the School District failed to meet that burden in this instance.

With respect to School District's contention that Supreme Court should have denied, with prejudice, Petitioners' motion seeking attorney's fees and other litigation costs, the Appellate Division concluded that Supreme Court properly determined that the issue of the School District's liability for such payments remained an open question at this stage in the litigation as no determination could yet be made as to whether Petitioners would "substantially prevail" for the purposes of claiming such reimbursement.

The decision is posted on the Internet at:

June 28, 2020

Recognizing Juneteenth as a Holiday for State Employees

Consistent with the Executive Order* issued by New York State Governor Andrew M. Cuomo observing Juneteenth as a holiday for state employees in 2020, the New York State Department of Civil Service has published Policy Bulletin No. 2020-03 applicable to the 2020 holiday.

The Text of Policy Bulletin No. 2020-03 is posted on the Internet at:
If you wish to print Policy Bulletin No. 2020-03, a PDF version is posted on the Internet at:

To view previous Attendance and Leave bulletins issued by the Department of Civil Service, visit:

Governor Cuomo plans to advance legislation to make Juneteenth an official state holiday next year and a revised guidance is to be issued addressing future observances of Juneteenth upon the enactment of such legislation.

The Executive Order is posted on the Internet at EO-204.Pdf

NYPPL postings during the week ending June 27, 2020

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

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued during the week ending June 26, 2020. To access the full report click on the data highlighted in color.

State Department and Agencies

New York City Department of Housing Preservation and Development, Purchasing Practices at the Linden Plaza Mitchell-Lama Housing Development (2019-F-50) (Follow-Up) An audit issued in September 2018 found that New York City’s rules were limited in scope and did not encourage Linden Plaza officials to make purchases at competitive prices and none of the $10.7 million in purchases made by Linden Plaza were subject to competitive bidding. With limited exception, there was no documentation indicating that Linden Plaza had conducted price analyses or taken other steps to determine the reasonableness of the prices related to sampled non-contract purchases. In a follow-up, auditors found that HPD officials made limited progress in addressing the problems identified in the initial audit.

State Education Department (SED): Oversight of Smart Schools Bond Act Funds (2019-S-13) It takes SED nearly 300 days on average to approve school district projects funded through the Smart Schools Bond Act, leading to project delays and increased costs. While SED has taken steps to review school districts’ Smart School spending plans, it has not done enough to ensure the money is going to appropriate projects that meet guidelines to get funding.

State Education Department: Through Ages Inc. – Compliance With the Reimbursable Cost Manual (2019-S-56) Through Ages is a New York City-based for-profit organization authorized by SED to provide preschool Special Education Itinerant Teacher (SEIT) services to children with disabilities who are between the ages of three and five years. For the three fiscal years ended June 30, 2015, auditors identified $137,377 in reported costs that did not comply with the requirements for reimbursement and recommended those costs be disallowed.

State University of New York Upstate Medical University (Upstate): User Access Controls Over Selected System Applications (2019-S-34) Upstate’s access controls are not sufficient to prevent unnecessary or inappropriate access to various applications. Inappropriate access can lead to intentional or accidental modification, destruction, or disclosure of clinical, educational, and research – and otherwise confidential – information.

School Districts 

Commack Union Free School District – Information Technology (IT) Assets Inventory (Suffolk County) At the time of initial visits to nine district buildings, auditors were unable to locate 146 of 475 IT assets tested (31 percent). It took between 11 and 55 days from the initial visits for officials to locate 80 additional IT assets. Because of inaccurate inventory records, district officials were unable to locate the remaining 66 IT assets (14 percent).

The board overestimated appropriations from 2016-17 through 2018-19, resulting in over $5 million in appropriated fund balance not being used to finance operations. After adding back unused appropriated fund balances each year, the district’s recalculated surplus fund balance exceeded the statutory 4 percent limit each of the last three fiscal years ranging from 12.1 percent to 16.7 percent.

Rochester City School District – 2020-21 Budget Review (Monroe County) Auditors commend the superintendent and board for the actions they have taken to improve the accuracy of budget projections in the 2020-21 budget and restore the district’s overall financial condition, especially in light of the challenges caused by unexpected revenue reductions due to the economic fallout resulting from the COVID-19 pandemic. Auditors found revenue projections to be substantially accurate. However, appropriations for charter school tuition are underbudgeted by approximately $1.5 million, and salary and substitute costs will have to be closely monitored. Additionally, the budget remains structurally imbalanced because district officials are relying on the city council to approve a waiver to the city charter for the use of $10 million for operation expenditures rather than capital purposes. Therefore, absent recurring additional revenue, appropriation reductions will be necessary for future budgets to be structurally balanced.

Urban Choice Charter School – Information Technology (Monroe County) A former employee’s user account was used to process 510 financial transactions after her resignation. In addition, school officials did not adopt IT policies or a disaster recovery plan. IT users were not provided with IT security awareness training. 

Municipalities and Political Subdivisions

Berkshire Fire District – District Operations (Tioga County) District officials did not comply with their procurement policy when procuring assets. Auditors determined the district could have saved $3,800 if it had purchased propane at state contract prices. Auditors also determined the board did not establish adequate controls to safeguard fixed assets. In addition, the treasurer did not submit required annual financial reports to the State Comptroller’s Office.

Town of North Elba – Cash Collections (Essex County) Auditors determined the town clerk did not deposit collections totaling $100,496 in a timely manner. In addition, the golf director did not provide adequate oversight of golf course collections. Auditors also found the park manager did not ensure employees remitted collections at the end of activities.

Frankfort Hill Volunteer Fire Company – Financial Activities (Herkimer County) Auditors determined the bylaws provided limited guidance on financial responsibilities and the board did not establish any supplemental financial policies or procedures. The treasurer did not maintain adequate accounting records and prepare monthly bank reconciliations. Most claims were paid without membership approval, as required by the bylaws and 47 claims totaling $34,437 were paid without proper supporting documentation. In addition, company officials did not ensure that cash receipts were adequately documented. Of 125 deposits totaling $318,091 made during the audit period, 43 deposits totaling $16,023 were either supported by only a deposit receipt or had no supporting documentation.

Village of Hilton – Financial Management (Monroe County) Auditors determined the board adopted budgets with unrealistic estimates, which resulted in operating surpluses and unused appropriated fund balances in the general, water and sewer funds. In addition, the board maintained unreasonable levels of fund balance in these funds that ranged between 29 percent and 128 percent of subsequent years’ budget appropriations. Also the board did not adopt a multiyear financial and capital plan or a detailed reserve plan that included the need and optimal funding level for each reserve.

Town of Mooers – Highway Asset Accountability (Clinton County) The highway superintendent did not maintain a complete and up-to-date inventory of department assets. Auditors determined department assets were not properly disposed of. In addition, town officials did not adequately monitor fuel use, which resulted in 9,216 gallons of unrecorded fuel used at the highway facility, valued at $20,576. Also, the Mooers Volunteer Fire Department was not billed for 2,413 gallons of recorded fuel used, valued at $4,841.

Town of Mooers – Cash Management (Clinton County) The board did not develop and manage a comprehensive investment program to ensure interest earnings were maximized. Auditors determined that had the supervisor invested available funds in a financial institution with higher available interest rates, revenue could have increased by approximately $31,300 during the audit period.

Town of Mooers – Procurement (Clinton County) The board did not ensure that officials and employees procured goods and services in accordance with the procurement policy. Of the nine purchase contracts totaling approximately $1.3 million that were entered into during the audit period and exceeded the competitive bidding threshold, one purchase contract totaling $61,766 was not procured in accordance with statutory requirements. In addition, of the 15 purchase and public works contracts totaling $150,939 that did not exceed the competitive bidding threshold, 11 contracts (73 percent) totaling $105,010 were not procured in accordance with the procurement policy.

Town of Patterson – Information Technology (IT) (Putnam County) The board did not adopt adequate IT policies or a disaster recovery plan. Auditors found town officials did not have a service level agreement with the IT consultant. In addition, town officials did not provide IT security awareness training to staff. Sensitive IT control weaknesses were communicated confidentially to officials.

Village of Port Chester – Dual Employment (Westchester County) Village officials did not establish adequate time and attendance controls. Auditors could not confirm the three employees identified worked all the hours they were paid for. In addition, village officials did not ensure that employees’ days and hours worked were adequately documented, certified by the employees or verified by a supervisor. Leave usage paid, totaling $3,979, was not deducted from leave accruals, and 536 hours of leave was taken without the use of time off request forms, as required.

Town of Rushford – Procurement (Allegany County) The board and town officials could improve the town’s procurement policy and purchasing procedures. Auditors determined that out of 59 payments totaling $632,000, two purchases totaling $175,000 were not competitively bid as required. They also determined that out of 55 purchases totaling $189,000, 17 purchases totaling $56,000 did not have the required request for proposal or the required number of quotes prior to being made. The town’s procurement policy does not require the solicitation of competition, such as written proposals or quotes, for the procurement of professional services.

Town of Westerlo – Information Technology (Albany County) Town officials did not adequately safeguard IT resources. In addition, town officials have not established appropriate policies and procedures to safeguard IT resources. Auditors also found town officials have not implemented strong access controls over user accounts and have not disabled unnecessary accounts. They also have not formalized a contract describing specific services to be provided by the town’s third-party IT vendor.

West Seneca Fire District #4 – Procurement (Erie County) The district’s procurement policy could be improved and the board of fire commissioners should ensure compliance with the policy. District officials were unable to provide written quotes for 42 purchases totaling $149,854 to demonstrate competitive pricing.

City of Yonkers – Budget Review (Westchester County) The 2020-21 budget relies on nonrecurring revenue of $67.1 million, such as fund balance, one-time state funding and sale of property, to balance its budget. Firefighting overtime costs could potentially be over budget by as much as $4 million and police overtime costs could potentially be over budget by $2.3 million based on the 2019-20 fiscal year overtime costs. The city plans to borrow up to $15 million for tax certiorari settlements in the 2020-21 fiscal year. Over the last 10 years, the city’s outstanding debt has grown 22.4 percent and the city’s debt service payments have risen 25.9 percent. The city will need $82.2 million to service its debt obligations during 2020-21. With the 2020-21 budget, the city will have exhausted 79.91 percent of its taxing authority and the city’s ability to increase property taxes may be limited in future years if property values do not increase.

Also Available from the Office of the State Comptroller

How New York State government money is spent is posted at Open Book New York. Track municipal spending, the State's 170,000 contracts, billions in State payments and public authority data. 

June 26, 2020

Sanctions imposed on a party held in contempt for failure to comply with a confirmed arbitration award

In this action the U. S. Circuit Court of Appeals, 2nd Circuit, affirmed a federal District Court's final orders holding the Defendants, entities in the private sector, in contempt for failing to comply with a confirmed arbitration award and the District Court's awarding the Petitioner [Union] attorneys’ fees as a contempt sanction.

Citing New York State National Organization for Women v. Terry, 886 F.2d 1339, the Circuit Court explained that "The power to punish parties for contempt is inherent in all courts, and 'A sanction imposed to compel obedience to a lawful court order or to provide compensation to a complaining party is civil'* in nature'" and a court may hold a party in contempt if the court determines that:

1. The order the party failed to comply with is clear and unambiguous;

2. The proof of noncompliance is clear and convincing; and

3. The offending party has not diligently attempted to comply in a reasonable manner.

The court opined that ”civil contempt sanctions serve two purposes: to coerce a party into compliance, or to compensate the adverse parties for any losses suffered as a result of the lack of compliance" and could include appropriate attorney fees** and costs to a victim of contempt.

Although the Defendants had argued that the District Court had improperly resolved certain wage-related disputes because the parties’ collective bargaining agreement makes arbitration the exclusive remedy for settling disputes about express terms or conditions of the agreement and because the arbitration award directed that disputes over past damages be adjudicated in an arbitration proceeding, the Circuit Court pointed out that the controlling collective bargaining agreement explicitly exempts actions such as the Union’s effort here -- to “enforce, vacate or modify awards.”

Further, the Circuit Court noted that the Defendant's failed to challenge the wage rates involved until months after the district court ordered Defendants to pay employees at those rates, holding that the District Court properly concluded that any objection to the rates was waived by Defendants.

Thus, ruled the Circuit Court, the District Court did not exceed its authority in addressing the wage disputes nor was the sanction imposed improperly punitive.

In the words of the Circuit Court of Appeals, “Judicial sanctions in civil contempt proceedings may, in a proper case, be employed for either or both of two purposes; to coerce the defendant into compliance with the court’s order, and to compensate the complainant for losses sustained”*** and the district court ensured that the sanctions also served a compensatory purpose by ordering that they be paid to the opposing party (rather than to the court) to offset fees incurred in seeking compliance.

Characterizing the District Court's award as a classic compensatory sanction, the Circuit Court approved the award imposed -- $100,000 — half of what the Union requested -- and "a third of the tab for the coercive sanctions initially imposed" as being entirely within the bounds of the District Court’s discretion.

* Note, 42 U.S. Code § 1995 address criminal contempt proceedings.

** The Circuit Court observed that "[i]ndependent of the contempt regime, a district court may also assess attorneys’ fees when a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons." 

*** See F.T.C. v. Verity Int’l, Ltd., 443 F.3d 48.

The decision is posted on the Internet at:

June 25, 2020

Controverting a Workers' Compensation Law claim submitted by a former employee

The employer [School District] appealed a decision of the Workers' Compensation Board [Board] which ruled that its former employee [Claimant] sustained a causally-related occupational injury or disease of the neck and right shoulder resulting from her performing her duties as a school bus driver.

School District, in controverting the Claimant's application for workers' compensation benefits, argued that the Board's decision upholding the Worker's Compensation Law Judge's finding that Claimant sustained an occupational disease of the neck and the right shoulder was not supported by the evidence, asserting that Claimant filed "the claim as an afterthought, in response to being terminated from her position." 

Citing Matter of Corina-Chernosky v Dormitory Auth. of State of N.Y., 157 AD3d 1067, the Appellate Division said that "To be entitled to workers' compensation benefits for an occupational disease, a claimant must establish a recognizable link between his or her condition and a distinctive feature of his or her occupation through the submission of competent medical evidence".*

The court explained that this is a factual determination for the Board, and its decision will be upheld if supported by substantial evidence and that based on the court's review of the record, there is substantial evidence supporting the Board's determination.

The Appellate Division opined that, contrary to the School District's claim, there was no indication that the medical opinions of the physicians who treated Claimant were based upon false medical histories. Further, noted the court, the School District did not obtain its own independent medical examination to contradict those medical opinions.

Although the School District maintained that Claimant's testimony was not credible, the Appellate Division opined that the Board is vested with the authority to resolve issues of credibility and the record here "contains ample evidence establishing that [Claimant] complained of neck and right shoulder pain well before she filed her claim."

Accordingly, the Appellate Division said it found no reason to disturb the Board's decision.

* Claimant had attributed her "occupationally related disease" to her bus driving duties which required a significant amount of physical effort, "particularly in steering the buses, repeatedly opening and closing the door, and operating the parking brake."

The Appellate Division's decision is posted on the Internet at:

June 24, 2020

Determining if a work assignment constitutes out-of-title work prohibited by Civil Service Law §61(2)

Typically an out-of-title work assignment exists when an employee has been assigned or compelled to perform the duties of a higher grade position "without a concomitant increase in pay, frequently, recurrently and for long periods of time."* 

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.

The Appellate Division sustained the lower court's ruling, explaining that out-of-title work, other than that performed on an emergency basis, is prohibited by Civil Service Law §61(2) and, as here, by the relevant collective bargaining agreement. 

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.

Here, said the court, the record establishes that, on a limited and temporary basis,*** the individual Petitioners were, from time to time, assigned to perform certain building security functions, such as searching incoming persons, operating the magnetometer and securing the waiting room and area office. 

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.

As noted in the relevant job descriptions, parole officers and senior parole officers are sworn peace officers under the Criminal Procedure Law, which empowers them to, among other things, perform warrantless searches and arrests, use physical force in making an arrest or preventing an escape and take custody and possession of firearms not owned by peace officers for lawful purposes. Further, the classification standards for these positions set forth that, among other responsibilities, parole officers and senior parole officers are required to perform law enforcement functions, carry firearms, pass firearms qualification testing and participate in mandatory deadly physical force and tactical training. 

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.

* Under the applicable collective bargaining agreement, out-of-title assignments below an employee's salary grade do not entitle that employee to monetary compensation. Rather, in such circumstances, the employee is entitled to a declaration that the duties were out-of-title and to a discontinuance of the out-of-title assignments (see Matter of Hightower v New York State Div. for Youth, 195 AD2d 913, leave t0 appeal denied 82 NY2d 660 [1993]).

** See

*** The grievance forms indicated that, following the retirement of an institutional safety officer, the individual Petitioners were assigned to cover shifts routinely performed by the institutional safety officer in the range of two to five dates in July 2016, with hours of coverage ranging from 5.5 to 19.5 hours in total.

The decision is posted on the Internet at:

June 23, 2020

Arms of New York State may claim 11th Amendment immunity from lawsuits in federal court

The Eleventh Amendment of the Constitution of the United States provides that "[t]he 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 or Subjects of any Foreign State." This amendment established the doctrine of "sovereign immunity" of States and was adopted in response to the United States Supreme Court's decision in Chisholm v. Georgia.*

Plaintiff-Appellant [Plaintiff] in this action had sued the State University of New York at Stony Brook [University] in United States District Court for the Eastern District of New York alleging the University had violated certain provisions of 42 U.S.C. §1983, Title IX of the Education Amendments of 1972, and Title VII of the Civil Rights Act of 1964. 

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:

* In Crisholm, a case decided in 1783, the United States Supreme Court, in a 4–1 decision, held that the State of Georgia did not possess sovereign immunity and was subject to suit by individual plaintiffs in federal court. [For additional information see Cornell Law School's Legal Information Institute's  article discussing the Eleventh Amendment 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.

The decision is posted on the Internet at:


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.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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