August 31, 2020

Basics of federal law regulating federal, state, municipal and certain other officers and employees engaging in partisan political activities

5 U.S.C. §7321, et seq, An Act to Prevent Pernicious Political Activities and typically referred to as the Hatch Act, was enacted by Congress to express its policy that "employees should be encouraged to exercise fully, freely, and without fear of penalty or reprisal, and to the extent not expressly prohibited by law, their right to participate or to refrain from participating in the political processes of the Nation." Recently significant attention has been focused on provisions set out in law prohibiting partisan political activities by most officers and employees serving in executive branch of the federal government. 

On April 20, 2020, the Congressional Research Service (CRS), a nonpartisan shared staff to congressional committees and Members of Congress, posted a publication, The Hatch Act: A Primer, on the Internet at A Guide to the Hatch Act for Federal Employees - .

The Hatch Act, however, also applies to state officers and employees and officers and employees of political subdivisions of a state whose principal employment is in connection with an activity which is financed, in whole or in part, by the federal government. This prohibition, however, does not apply to individuals employed by educational or research institutions that a state supports and certain religious, philanthropic and cultural organizations. For example, the  members of a public school board of education and school officers and teachers employed by a public school are not within the ambit of the Act.

The New York State Bar Association posted an article by Sung Mo Kim, Esq. on the Internet addressing the applicability of the Hatch Act to New York State municipal officers and employees at

In addition, public employers in New York State may prohibit its officers and employees from campaigning for, and holding, elected office subject to its action satisfying the so-called Pickering Balancing Test. See

August 28, 2020

Removal of an individual's name from an eligible list or from his position by action of the State Department of Civil Service or by a municipal commission

§50.4 of the Civil Service Law provides for removing the name of an individual for appointment to a position in the competitive class from an eligible list or from the position if the individual was appointed from the eligible list. The New York State Department of Civil Service or a municipal civil service commission, as the case may be, on its own initiative or upon the request of an appointing authority, determine if an individual whose name appears on an eligible list, or who has been appointed from an eligible list, should be disqualified for appointment to the position.

For example, §50.4 provides that the State Department of Civil Service may refuse to examine an applicant, or after examination to certify an eligible for appointment to the position for a number of reasons, including, but not limited to:

1. The individual's lack any of the established requirements for admission to the examination or for appointment to the position; or

2. An individual who has been dismissed from a permanent appointment to position in the public service upon stated written charges of incompetency or misconduct; or

3. An individual who has intentionally made a false statement of any material fact in his application; or

4. An individual who has been dismissed from private employments because of habitually poor performance.

No person, however, may be disqualified pursuant to §50.4 unless he has been given a written statement of the reasons for such action and given an opportunity to offer an explanation and to submit facts in opposition to such disqualification.

Further, no person may be removed from his position based on findings made after an investigation of his qualifications and background more than three years after he has been appointed from the list because of finding of facts which if known prior to appointment, would have warranted his disqualification or upon a finding of "illegality, irregularity or fraud of a substantial nature" in his application, examination or appointment, except in the case of fraud.

For example, an employee removed from his position pursuant to §50.4 by the Personnel Officer and Director of Wayne County Civil Service Commission after a making a finding that the employee had “intentionally made false statements of material facts in his application or (had) attempted to practice (a) deception or fraud in his application” based on its finding that the employee had falsified his application with respect to his experience as a police officer and concealed facts related to his separation from a previous employment.

Although the employee sued, contending he could not be removed from his position without first being given an administrative due process hearing, the Appellate Division disagreed.*

The Appellate Division opined that "petitioner was accorded his full right to explain his conduct," and that he was not entitled to a hearing, citing Matter of Shraeder v Kern, 287 N.Y. 13. In the words of the Appellate Division, §50.4 “requires no more than that the person be given a written statement of the reasons therefore and afforded an opportunity to make explanation and to submit facts in opposition to such disqualification.”

* 78 A.D.2d 984, affirmed 55 NY2d 1019.

August 27, 2020

Trial practices and procedures of the New York City Office of Administrative Trials and Hearings during the COVID-19 pandemic

In United States v. Gigante, 166 F.3d 75, the United States Court of Appeals, Second Circuit, held that "even in the context of criminal proceedings, 'upon a finding of exceptional circumstances' a witness may be permitted to testify via two-way closed-circuit television when this furthers the interest of justice." The court then opined that the "COVID-19 pandemic presents such exceptional circumstances."

New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judges Astrid B. Gloade and Faye Lewis, respectively, denied applications filed by Respondents to hold in-person trials rather than their conducting trials through videoconferencing. Both ALJs explained that OATH has long recognized that testimony may be taken by videoconferencing when there is a compelling need to do so.

Both ALJs found that the COVID-19 pandemic establishes compelling circumstances for holding remote trials and explained that OATH's current practices and procedures provide for conducting all trials remotely except when an ALJ determines, upon motion, that there is a particularized, compelling need for an in-person trial that can be conducted in compliance with applicable health and safety guidelines.

These rulings by the ALJs reflected the Order OATH's Chief Administrative Law Judge Joni Kletter* issued "due to the emergency circumstances caused by the continuing COVID-19 outbreak in the City of New York" wherein Chief ALJ Kletter stated, in pertinent part, that "All trials before the OATH Trials Division will be conducted by Cisco Webex (or a similar system approved by the OATH Trials Division) which is widely available at no additional cost" under the circumstances.

Finding that Respondents, respectively, failed to demonstrate "a particularized, compelling need for in-person trials" the ALJs opined that videoconferencing of the OATH proceeding would permit parties to submit evidence electronically and conduct direct and cross-examination of witnesses, whose demeanor would be readily observable on the video platform by the ALJ conducting the trial or the hearing. Accordingly, the ALJs denied the applications submitted by Respondents to them, respectively, to conduct their hearings in the form of in-person trials.

* See OATH Chief Judge’s Order addressing adjudications by OATH’s Trials Division during the COVID-19 outbreak.

August 26, 2020

Municipal audits released by New York State Comptroller Thomas P. DiNapoli

On August 25, 2020, State Comptroller Thomas P. DiNapoli issued the local government audits listed below:

To access the full text of the audit click on the text highlighted in color.

The board did not adequately monitor cash receipts and disbursements. The clerk-treasurer collected, deposited and recorded cash receipts and prepared and signed checks without adequate review or approval by the mayor or board. The board did not receive or review bank statements or canceled check images to help minimize the risk of unauthorized transactions or other errors or irregularities occurring and remaining undetected.

The board adopted budgets that underestimated revenues (until 2019), overestimated appropriations and failed to use most of the appropriated fund balance for operations. Auditors determined the board did not effectively manage the town’s financial condition, which resulted in the town-wide general fund having unassigned fund balance totaling $768,926 as of December 31, 2019, or 79 percent of actual expenditures. In addition, the board did not develop multiyear financial and capital plans or adopt a reasonable fund balance policy.

The town supervisor did not maintain up-to-date records and reports. In addition, the town supervisor did not make deposits and maintain accounting records in a timely manner. Auditors also determined the town supervisor did not file the town’s 2016, 2017 and 2018 annual update documents, which are required annual financial reports, with the State Comptroller’s office in a timely manner.


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Substituting a "Rule of One" for the "Rule of Three" when making appointments from a promotion list

Although in People v Mosher, 163 NY 32, the Court of Appeals held that a civil service commission cannot mandate a rule of one with respect to appointing an individual from an examination eligible list to a position in the competitive class, the appointing authority itself may elect to be bound by such a rule. Such a decision has not been viewed as offending public policy because the appointing authority has merely truncated its ability to exercise its discretion with respect to selecting candidates for appointment from the eligible list.

When an arbitrator require the appointing authority to promote the highest-scoring bargaining unit member on a civil service eligible list based on a finding that a rule of one was mandated under the terms of the parties' collective bargaining agreement [CBA], the appointing authority brought an action pursuant to CPLR Article 75 seeking a court order vacating the award. The appointing authority contended that such an award violated public policy in that restricted the statutory discretion vested in the appointing authority pursuant to Civil Service Law §61 "to select one of the three highest-ranked candidates on an eligible list."

Ultimately the Court of Appeals* concluded that there was no strong public policy prohibiting an appointing authority from agreeing include a provision  in a CBA as the result of collective bargaining pursuant to Article 14 of the Civil Service Law, the so-called Taylor Law, requiring the appointing authority select the employee whose name appears first on the eligible list certified to it for that purpose.

The court explained that §204 of the Civil Service Law "empowers and, in fact, requires a public employer to negotiate collectively with employee organizations and enter into written agreements governing the terms and conditions of employment." Observing that "the public policy exception to the arbitrability of public sector labor disputes is narrow," the Court of Appeals sustained the arbitration award, observing that the promotional practices of a public employer constitute a term or condition of employment that may be determined through collective bargaining under the Taylor Law.

In contrast, however, determining the seniority rights in some situations are statutory such as determining an employee's seniority for the purposes of layoff based on the employee's "original date of permanent appointment" in the event of a layoff.** §64.2 of the Civil Service Law provides that an individual's original date of permanent appointment is the effective date of the individual's initial, and uninterrupted, permanent appointment from the eligible list, to be distinguished from the date the employee attained "tenure" in the position upon the successful completion of the employee's required probationary period at some later date.

For example, in City of Plattsburgh v Local 788, 108 AD2d 1045, the Appellate Division the court considered a Taylor Law contract provision which provided that the "date of hire" was to be used to determine an employee's seniority rather than the individual's "original date of permanent appointment.

Under the terms of the Local 788 CBA Employee A had greater seniority for layoff purposes in consideration of the fact that he had been provisionally appointed to his position before Employee B was provisionally appointed to his. But §§80 and 80-a of the Civil Service Law provide that the date of an employee's most recent, uninterrupted permanent appointment determines his or her seniority for the purposes of layoff and as Employee B had been permanently appointed to his position prior to Employee A being permanently appointed to his, Employee B would have greater seniority for the purpose of layoff determinations than Employee A pursuant to law.

When Plattsburgh laid off Employee A rather than Employee B notwithstanding the fact that Employee A had been employed by the City for a longer period than Employee B because Employee B been permanently appointed to the title before the effective date of Employee A's permanent appointment to the title, the Union grieved. Ultimately the union demanded that the issue be submitted to arbitration, contending that under the seniority provision in the CBA B rather than A should have been laid off.

The City, arguing that Civil Service Law §80 controlled and thus A, and not B, had to be laid off first, obtained a court order prohibiting arbitration of the grievance. 

The Appellate Division explained that §80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away, citing County of Chautauqua v Civil Service Employees Ass'n, 8 N.Y.3d 513, in which the Court of Appeals held that once an informed decision as to which positions are to be abolished is made, Civil Service Law "§80(1) obligates the employer to respect the seniority rights of its employees."

Similarly, in Szumigala v Hicksville Union Free School District, 148 AD2d 621, the Appellate Division, citing Cheektowaga v Nyquest, 38 NY2d 137, held that a seniority clause in a Taylor Law agreement violated §2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority with the District for the purposes of layoff.

* Matter of the Arbitration between Professional, Clerical, Technical Employees Association and Buffalo Board of Education, 90 N.Y.2d 364, posted on the Internet at

** §80 of the Civil Service Law which, in addition to other requirements, provides that layoffs of employees in the competitive class "shall be made in the inverseorder of original appointment on a permanent basis in the classified service in the service of the  governmentaljurisdiction in which such  abolition or reduction of positions occurs...." §80-a of the Civil Service Law sets out similar provisions with respect to the layoff of employees in the noncompetitive class of the State as the employer.

August 25, 2020

Challenging an arbitration decision and award

The collective bargaining agreement [CBA] at issue provided that in selecting teachers to be transferred within the school district the "[l]ength of teaching experience in the school system" would the controlling factor "where all other factors are substantially equal."

The employee organization [Association] representing the School District's [District] teachers filed grievances on behalf of two of its members in the collective bargaining unit who were passed over for transfers to a particular school in the District in favor of unit members with less seniority. The grievances ultimately were submitted to arbitration and the arbitrator issued opinions finding that the District had not violated the CBA and dismissed the grievances.

The Association subsequently filed a timely CPLR Article 75 petition challenging the arbitrator's decision.  Supreme Court dismissed the petition and the Association again appealed.

The Appellate Division affirmed the Supreme Court's ruling, which in effect confirmed the arbitration award, explaining that the arbitrator here determined that School District did not violate the seniority provision of the CBA with respect to the grievants because "all other factors" were not "substantially equal."

Rejecting the Association's contention that the arbitrator exceeded his power in rendering the award, the Appellate Division, quoting Matter of Board of Educ. of Arlington Cent. School Dist. v Arlington Teachers Assn., 78 NY2d 33, explained that "It is well settled that an arbitrator exceeds his or her power within the meaning of CPLR 7511(b)(1)(iii) where, inter alia,* the arbitration award "is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power." Further, said the court, "An arbitrator's interpretation may even disregard the apparent, or even the plain, meaning of the words of the contract before him [or her] and still be impervious to challenge in the courts." 

Citing Finger Lakes Region Police Officers Local 195 of Council 82, AFSCME, AFL-CIO [City of Auburn], 103 AD3d 1237, the Appellate Division said that although "a different construction could have been accorded to the subject provision of the [CBA],  ...  it cannot be stated that the arbitrator gave a completely irrational construction to the provision in dispute and, in effect, exceeded [his] authority by making a new contract for the parties."

The Appellate Division also rejected the Association's contention that the arbitrator's award was irrational. An award is irrational, said the court, if there is no proof whatever to justify the award. Otherwise "[a]n arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached," opining that in this instance "there is a colorable justification for the arbitrator's determination."

The Appellate Division then affirmed Supreme Court's order denying the Association's petition seeking to vacate the arbitration award and granting School District's request to confirm the arbitration award.

* Latin for "among other things." This phrase is frequently found in legal writings to indicate the reference is but "one example" of many possible examples that could be cited.

The decision is posted on the Internet at:

August 24, 2020

Evaluation of conflicting medical evidence by an appointing authority

A deputy sheriff [Deputy] was injured in a work-related accident and was receiving benefits pursuant to §207-c of the General Municipal Law.* Following the receipt of a report from an orthopedic surgeon indicating that Deputy was capable of returning to work if assigned to work a "light duty position, Deputy was notified by the Sheriff's Department [Department] that [1] his §207-c benefits would be discontinued and [2] he would be place in a light-duty assignment with the Department. Deputy declined the light duty assignment and, as provided for in the relevant collective bargaining agreement, requested a hearing concerning the Department's decision.** 

A hearing was held and the Hearing Officer determined that Deputy's benefits [1] had been improperly terminated and [2] recommended that Deputy's benefits be reinstated retroactively.

The Department rejected the Hearing Officer's determination and recommendation without providing any explanation for its decision and Deputy commenced an Article 78 CPLR proceeding seeking, among other things, a court order annulling the Department's determination.

Citing Matter of Alverson v Albany County, 173 AD3d 1415, the Appellate Division said  that the Department failure to make any findings or otherwise specify any basis for its determinations "deprived the court of the ability to conduct meaningful judicial review." According, the court annulled the Department's determination and remitted the matter to it "to address the procedural issues and develop appropriate factual findings."

Upon remittal, the Department considered the conflicting medical evidence in the record concerning whether Deputy was capable or incapable of performing light-duty work.

Deputy's primary care physician had testified that Deputy's work-related injuries "rendered him wholly incapable of returning to work in any capacity" while a physician assistant working under the primary care physician supervision testified that Deputy would be capable of performing the specific tasks that he would be assigned as part of his light-duty assignment only if he was permitted "to take his prescribed pain medications."

In contrast, the testimony and independent medical examination report of the Department's medical expert supported the conclusion that Deputy was capable of returning to work in a modified or light-duty capacity.

The Department, after evaluating the testimony of the medical experts, found that Deputy was capable of performing light-duty work and that his §207-c benefits had been properly terminated in accordance with the terms and conditions of collective bargaining agreement. In so doing the Department credited a "work abilities checklist" completed by an orthopedic surgeon and the medical opinion given by its medical expert over the medical evidence presented by Deputy's medical experts.

Based upon that credibility determination, Department found that Deputy was capable of returning to work in a light-duty capacity and Deputy next filed the instant CPLR Article 78 petition challenging the Department's ultimate decision.

The Appellate Division dismissed Deputy's petition, concluding that [1] the Department's resolution of the conflicting medical evidence was rational, fact-based and  supported by the record, and [2] substantial evidence supported the Department's determination to terminate Deputy's §207-c benefits "notwithstanding the existence of evidence that could support a contrary conclusion."

The court, Judge Colangelo, dissenting,*** explained that a "Judicial review of an administrative determination made after a hearing at which evidence is taken pursuant to direction of law is limited to a consideration of whether that determination was supported by substantial evidence upon the whole record," noting that "Substantial evidence consists of 'such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.'"

In the words of the Appellate Division, "[W]here the medical evidence [is] in conflict, it [is] for the administrative agency to choose between the conflicting opinions, and the courts are not free to reject the choice made by the administrative agency where room for choice exists."

* General Municipal Law §207-c provides for the payment of salary, wages, medical and hospital expenses of law enforcement personnel having injuries or illness incurred in the performance of duty.

** The "stipulated issue" to be addressed at the hearing was whether Deputy's §207-c benefits had been properly terminated.

*** Justice Colangelo opined that "As the majority notes, [Deputy] adduced credible medical evidence — namely, the testimony of his primary care physician and a registered physician assistant — in support of his contention that he was incapable of even light-duty work at the time that [the Department] terminated his General Municipal Law §207-c benefits" and in Judge Colangelo's view the Department's determination was not supported by substantial evidence and he would annul it.

The decision is posted on the Internet at:

August 22, 2020

State agency audits issued by New York State Comptroller Thomas P. DiNapoli

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued during the week ending August 20, 2020.

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

Office of Children and Family Services (OCFS): Oversight of Runaway and Homeless Youth (2019-S-47) OCFS has generally established controls but is not conducting program and fire safety inspections for certified runaway and homeless youth programs and facilities. Auditors found OCFS did not always conduct inspections within established time frames as 57 of 186 program inspections (31 percent) and 23 of 184 fire safety inspections (13 percent) were late. Additionally, they found various safety conditions needed to be improved. These included missing smoke detectors, missing outlet covers, overloaded power strips, and water damage to ceilings with possible mold. 

Office of General Services: Summit Security Services Inc. (2019-BSE3-001) OGS paid Summit more than $867,000 for 40 individuals provided by Summit’s subcontractor, Bestworth, who did not meet the contract qualifications for security guards. Bestworth’s president acknowledged none of the 40 employees who provided security guard services at the Adam Clayton Powell Jr. State Office Building took a drug test. Furthermore, 27 of these individuals lacked other necessary qualifications, including the required New York State Department of State Security Guard registration. 

Department of Civil Service: New York State Health Insurance Program: CVS Health – Accuracy of Drug Rebate Revenue Remitted to the Department of Civil Service (2019-S-51) The Department of Civil Service contracted with CVS Health to administer the Empire Plan’s prescription drug program for the period Jan. 1, 2014 through Dec. 31, 2018. CVS Health was required to negotiate agreements with drug manufacturers for rebates, discounts, and other consideration and remit the rebate revenue to Civil Service. Auditors reviewed discrepancies between the drug rebates that CVS Health invoiced versus collected from drug manufacturers and found CVS Health did not always collect and remit all rebate revenue to Civil Service. As a result, Civil Service is due $453,029 in rebates. 

Department of Civil Service: New York State Health Insurance Program – Payments by Empire BlueCross for Hospital Services for Ineligible Members (2019-S-32) The audit identified 3,177 claims totaling $18.2 million that were paid for hospital services provided during periods when members were not eligible. The claims were paid due to various reasons, including retroactive disenrollments. For retroactive disenrollments, it took an average of nearly 400 days to cancel members’ coverage. Empire recovered $11.5 million and $2.1 million was beyond recoverability time frames, leaving $4.6 million to be recovered. 

Empire State Development (ESD): Oversight of Select High-Technology Projects (2017-S-60) ESD has provided millions of dollars to private companies in high-tech sectors with the goal of creating jobs and increasing private investment. While ESD has effective practices for monitoring specific programs, it has not adequately monitored other high-tech projects to ensure that taxpayer money is effectively spent and is producing the intended results. 

Homeless Housing and Assistance Corp.: Homeless Housing and Assistance Program (HHAP) – Project Selection and Maintenance (2020-F-14) (Follow-up) An audit issued in January 2019 found that, of the 51 projects that were awarded funding by HHAP during the three-year period ending March 31, 2016, all but one were operational or in the pre-construction or construction phase within two to four years of being awarded funding. Auditors also identified several areas for improvement. In a follow-up, auditors found HHAP has made progress in addressing the problems identified in the initial audit report; however, additional improvements are needed. 

Metropolitan Transportation Authority – New York City Transit (NYCT) – Signal Maintenance, Inspections, and Testing (2019-F-58) (Follow-up) An audit issued in October 2017 found NYCT did not always perform required tests of its signal equipment within required intervals and supervisors were often late in inspecting equipment. NYCT also did not have an inventory system to account for the equipment it maintains. In a follow-up, auditors found NYCT has made progress in addressing the issues identified. Of the 18 prior recommendations, three were implemented, 10 were partially implemented and five were not addressed. 

Office for People With Developmental Disabilities (OPWDD): Controls Over Transportation Services and Transportation-Related Expenses (2019-S-38) Auditors reviewing upstate New York OPWDD transportation services and related expenses found it could improve accountability over transportation expenses and services and doesn’t have controls in place to educate or improve driving skills for employees with frequent driver license interruptions or serious violations (e.g., speeding, disobeying traffic devices, driving while intoxicated). OPWDD could also improve controls to ensure vehicle recalls are repaired in a timely manner. Auditors found that 219 vehicles had 235 unresolved (open) recall notices. Most (201) had been open for over nine months. 

Office for People With Developmental Disabilities (OPWDD): Oversight of Passenger Safety (Follow-Up) (2020-F-1) An audit released in October 2018 found that OPWDD did not analyze traffic violations to identify whether employees in the New York City region needed training or counseling, or if they should be reassigned. The audit also found that four regional Developmental Disabilities Services Offices were not properly identifying drivers whose licenses had been suspended. In addition, repairs related to manufacturer recalls were not being performed in a timely manner or at all. In a follow-up, auditors found OPWDD has made limited progress in addressing the problems identified in the initial audit. 


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August 21, 2020

The anatomy of a student disciplinary hearing conducted by a public institution of higher education

Following the student's [Student] administrative disciplinary hearing and the Students administrative appeal of the hearing decision, a unit of State University of New York [SUNY] suspended Student  for three years and noted Student's college transcript accordingly. Student initiated a CPLR Article 78 proceeding seeking a court order annulling SUNY's actions.

Among the elements of SUNY's administrative disciplinary procedures challenged by Student, and considered by the Appellate Division, were the following:

1. Due Process: 
Citing Matter of Sharma v State Univ. of N.Y. at Buffalo, 170 AD3d 1565, among other decisions., the Appellate Division concluded that SUNYsubstantially adhered to its procedural rules with respect to the administrative disciplinary proceedings involving Student and that the alleged violations of those rules did not deny Student"the full panoply of due process guarantees to which he was entitled or render ... the finding of responsibility or the sanction imposed arbitrary or capricious".

2. Discovery: 
The Appellate Division rejected Student's contention that SUNY denied him due process with respect to his judicial appeal, explaining that "[i]n a disciplinary proceeding at a public institution of higher education, due process entitles a student accused of misconduct to a statement detailing the factual findings and the evidence relied upon by  [SUNY's] decision-maker in reaching the determination of [Student's] guilt ... and here the record reflects that [Student] was provided with the documents that were relied on by [SUNY]" in making such determinations.

3. Assistance of counsel: 
The court dismissed Student's claim that he was denied the assistance of counsel at his hearing, noting Student was, as authorized by SUNY's administrative hearing procedures, assisted by an attorney advisor throughout the disciplinary process, including such assistance at the hearings.* 

4. Prosecuting an effective appeal: 
Notwithstanding Student's contention to the contrary, the Appellate Division opined that SUNY's written determinations did not violate Student's right to due process as they contained sufficient detail "to permit [Student] to effectively challenge the determination in administrative appeals and in the courts and to ensure that the decision was based on evidence in the record," nor did the record support Student's claim that the determination with respect to his administrative appeal was based on matters outside of the record.

Finding that SUNY's determination was supported by substantial evidence, the Appellate Division said it perceived no basis to disturb SUNY's decision. 

* The Appellate Division also rejected Student's claim that he was denied due process as the result of SUNY's alleged failure "to call live witnesses or to accept questions to be asked of such live witnesses."

The decision is posted on the Internet at:

August 20, 2020

Defending and indemnifying employees of the City of New York being sued in a civil action

§50-k(3) New York State's General Municipal Law provides that New York City must, if certain conditions are satisfied, defend and, if necessary, indemnify, an employee being sued in a civil action related to the employee's conduct performed in compliance with the rules and regulations of the employee’s agency at the time the plaintiff was injured, so long as the injury to the plaintiff did not result from the employee’s intentional wrongdoing or recklessness.*

Two New York City police officers [jointly Defendants] had arrested an individual [Accused] and charged him with disorderly conduct, harassment, obstruction of governmental administration, and resisting arrest. After obtaining video footage of the incident, prosecutors dismissed all charges.

The Accused then filed a lawsuit pursuant to 42 U.S.C. §1983 alleging false arrest, malicious prosecution, the use of excessive force, denial of the right to a fair trial, a failure of a police officer to intervene in the course of the incident, and First Amendment violations, as well as malicious prosecution in violation of New York state law, against the City of New York [City], the Defendants, and another New York City police officer. A federal district court jury found for the Accused and Defendants appealed.

One of issues raised by Defendants in the district court was the City’s decision not to provide for their defense and indemnification under color of General Municipal Law §50-k(3). The Circuit Court held that "the district court did not err" in denying Defendants’ request for an evidentiary hearing" addressing the City's decision not to provide for Defendants' defense and indemnification.

The Circuit Court held that whether the employee's act or omission was in violation of an agency rule, or was within the employee’s scope of employment was a factual determination to be made in the first instance by the City's Corporation Counsel, whose determinations may be set aside only if they are not supported by the evidence or are in some other sense ‘arbitrary and capricious.” Further, the Circuit Court noted that the City is not required to indemnify a defendant for “intentional wrongdoing or recklessness.

The Circuit Court opined that the fact that Defendants may have certain employment rights meriting a hearing prior to termination** "says nothing of their right to indemnification after trial." The Circuit Court's decision also observed that "Defendants had a full and fair opportunity to present their defense in court, yet failed to convincingly do so." 

In addition, said the court, in any event, the City "maintains discretion to indemnify officers" and, in consideration of the substantial factual support for the City’s decision, "the district court did not err in denying Defendants’ request for an evidentiary hearing. In the words of the Circuit Court, "The City’s assessment of Defendants’ wrongdoing or recklessness was supported by the findings of the City's Civilian Complaint Review Board, the videotape of the incident, and the federal district court's jury’s findings of liability and awarding of punitive damages."

* See, also, Public Officers Law §17 [defense and indemnification of State officers and employees] and Public Officers Law §18 [defense and indemnification of officers and employees of public entities]. Public Officers Law §19.2(a) addresses the duty of the State, as the employer, to pay reasonable attorneys' fees incurred as the result of a State officer or employee appearing before a Grand Jury or in a criminal proceeding arising out of any act which occurred while such individual was acting within the scope of  his public employment or duties.

** Subdivision 5 of §50-k(3) provides that "[i]n the event that the act or omission upon which the court proceeding against the employee is based was or is also the basis of a disciplinary proceeding by the employee's agency against the employee, representation by the corporation counsel and indemnification by the city may be withheld (a) until such disciplinary proceeding has been resolved and (b) unless the resolution of the disciplinary proceeding exonerated the employee as to such act or omission."

The decision is posted on the Internet at:

August 19, 2020

Denying an individual an "on-street parking permit" did not violate the individual's equal protection rights under the circumstances

In an action to recover damages for alleged civil rights violations pursuant to 42 USC §1983, Plaintiff appealed Supreme Court's granting the Town's cross motion for summary judgment dismissing Plaintiff's complaint. Plaintiff had contended that Plaintiff's right to equal protection was violated because Plaintiff was denied an "on-street parking permit" for a specified location in the Town on the ground that Plaintiff was not a resident at the location involved.

The Appellate Division said that the Town had established its prima facie entitlement to judgment as a matter of law and that Plaintiff failed to raise a triable issue of fact in opposition.

With respect to Plaintiff's cause of action for recovery under 42 USC §1983 on equal protection grounds, the Appellate Division explained that recovery under 42 USC §1983 is triggered where a defendant has denied the plaintiff a constitutional or federal statutory right, and that such denial was effected under color of state law. Here, said the court, Plaintiff "is not a member of a suspect class and no fundamental right is implicated. Thus the challenged action need only be rationally related to a legitimate governmental purpose."

Further, opined the Appellate Division, a local law limiting the issuance of on-street parking permits to residents of that street is rationally related to the legitimate governmental purpose of alleviating an on-street parking shortage on that street.

Citing Village of Willowbrook v Olech, 528 US 562, the Appellate Division also rejected Plaintiff's claim that Plaintiff is a "class of one" for purposes of prosecuting an equal protection claim, explaining there has been no showing that Plaintiff had been intentionally treated differently from others similarly situated and that there was no rational basis for the difference in treatment.

The court also noted that the individually named Town defendants "are entitled to qualified immunity, as they are government officials performing discretionary functions, and their conduct did not violate any clearly established statutory or constitutional rights of which a reasonable person would have known."

Finally, the Appellate Division said it agreed with the Supreme Court's determination directing dismissal of Plaintiff's cause of action alleging retaliation in connection with the issuance of a parking ticket. In the words of the court: "While retaliation claims alleging an adverse employment action because of a complaint of discrimination are actionable under 42 USC §1983 [Plaintiff] has no employment relationship with the Town and the statute does not apply in this context.

The bottom line: the Appellate Division agreed with Supreme Court's decisions [1] denying Plaintiff's motion for summary judgment on Plaintiff's complaint, and [2] granting the Town's cross motion for summary judgment dismissing Plaintiff's complaint.

The decision is posted on the Internet at:


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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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