Governor Cuomo releases guidelines on testing protocol for schools to reopen in red or orange micro-cluster zones

On October 31, 2020, Governor Andrew M. Cuomo released guidelines for schools to reopen in red and orange micro-cluster zones in order to help keep schools in focus areas open to in-person instruction. The guidelines require mass testing in schools before they reopen followed by vigilant symptom and exposure screening conducted daily. Impacted schools can reopen as early as Monday. However students and faculty must be able to provide a negative COVID-19 test result prior to going back to the classroom.  

New York State will provide rapid test kits for schools wishing to participate.

"In the micro-cluster zones, we've been working with schools in the red and the orange zones. The schools, private schools, Catholic schools, yeshivas, want to be open in the red and orange zones, and we've been working with them to try to find ways to keep people safe but allow children to go to school," Governor Cuomo said. "We have agreed with them on a protocol that keeps people safe and allows children to be educated."

In order for a school to reopen in a red or orange micro-cluster zones, schools must:

Remain closed for at least 4 calendar days after the zone designation is announced (48 hours to ensure lack of infectious contact in the school, and additional time for testing), and may re-open as early as the 5th calendar day.

Ensure that no person may attend in-person on the campus without first receiving a negative test result, this applies to faculty/staff as well as students.

Schools may reopen after these steps are taken, with students and faculty/staff who are positive or close contacts of positive cases appropriately excluded from school grounds. Additionally, the test result must be no more 7 days past the date of specimen collection on the day in-person learning reopens and date of specimen collection must be after date the zone was established.

After a school reopens in a red or orange micro-cluster zone, vigilant symptom and exposure screening must be conducted daily and must follow the below guidelines:

25% of the in-person learning school community (both students and faculty/staff) must be tested per week.

The school should ensure that it provides opportunities to test on school grounds, or otherwise facilitates testing and accepts test results from healthcare providers.

If the school does not hold a testing event or provide testing on school grounds, test results provided to the school as part of the 25% testing of the population must be received within 7 days from the date of specimen collection and specimen collection must be after the school reopens.

Each week the 25% of the school population tested must be composed of unique individuals who have not previously been tested for the surveillance screening, as part of the weekly 25% testing until the fifth week of weekly testing at which point the individuals who participated in the first week of testing should be tested again.

Members of the school community who test positive must isolate according to established guidelines.

Contact tracing must be performed to ensure that contacts to newly identified positive individuals are quarantined according to established guidelines.

New York State will provide schools with rapid test kits if requested. The schools must provide certified personnel (with necessary laboratory permits) to do the tests, and all results must be entered into ECLRS and reported on the school survey to the NYS COVID-19 Report Card.

Schools that cannot meet the reopening requirements must remain in remote learning for the duration of the zone designation. If the 25% of the school population random sampling generates a minimum of 9 cases, or if for a sample size of more than 300 weekly tests, achieves a positivity rate of 2% (6 cases or more depending on size) in New York City, or 3% (9 or more cases) outside of the city, then the school will be required to close. Reopened schools that fail to comply with these requirements could be subject to Section 16 orders, or other fines and penalties.

Qualified privilege in an action seeking damages for alleged defamation

 In this action to recover damages for alleged defamation, the several defendants [jointly "Respondents"] separately appealed from an order of Supreme Court denying their separate motions to dismiss the complaint insofar as asserted against each of them.

The president [Plaintiff] of a local branch of a labor union representing the workers of the Respondent private sector employer [Company] commenced this action to recover damages for defamation, alleging that the Company, together with the Company's owner [Owner]  and the Company's attorney [Attorney] made certain defamatory statements about Plaintiff, which were then widely distributed to the Company's employees in an effort to influence the outcome of an affiliation contest between the Plaintiff's union and a rival union.

Plaintiff further alleged, among other things, that the several Respondents made the defamatory statements with knowledge of their falsity and for the purpose of damaging the Plaintiff's reputation among the Company's employees and impugning his ability to continue acting as president of the union's local branch. The Plaintiff also alleged that, as a result of the conduct of the several Respondents he suffered actual, compensable damage to his reputation.

Affirming the decision of the Supreme Court, the Appellate Division explained that where, as here, either party to a labor dispute is alleged to have circulated false and defamatory statements during the course of labor negotiations, "a qualified privilege attaches," which renders the action preempted by federal law. In order to overcome this qualified privilege and retain state court jurisdiction over the matter, the court said that the plaintiff's pleadings must allege both that the statements were made with malice and that they injured the plaintiff. *

Holding that contrary to their contention, and with respect to "the appellants appearing separately and filing separate briefs," the court opined that Plaintiff's pre-answer motions must be assumed to be true and are sufficient to overcome the qualified privilege relied upon by these appellants.

Accordingly, the Appellate Division affirmed the Supreme Court's determination denying the separate motions of the appellants appearing separately to dismiss the complaint insofar as asserted against each of them, with one bill of costs payable by the appellants appearing separately and filing separate briefs.

* See O'Neil v Peekskill Faculty Assn., 120 AD2d 36 at 42

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06090.htm

Employee's failure to the give employer give due notice of the accident and other factors defeats employee's claim for a benefit arising from the collective bargaining agreement

Petitioner [Plaintiff] filed a petition pursuant to CPLR Article asking the Supreme Court  to annul the New York City Transit Authority's [NYCTA] decision to deny her differential pay for an injury she allegedly sustained while flying to Nevada for a training course. Plaintiff had traveled to Nevada on September 25 and attended the training course through September 28. On the evening of September 28, she sought treatment for bilateral calf pain and was diagnosed with deep vein thrombosis [DVT], which was allegedly caused by the long flight. Plaintiff notified her supervisor of the diagnosis on September 29, and ultimately received Worker's Compensation benefits for her injury.

On the following January 9, Plaintiff submitted a request for "differential pay," a benefit available to NYCTA employees under the collective bargaining agreement between Plaintiff's union and NYCTA. NYCTA denied Plaintiff's request contending [1] Plaintiff had reported the injury late and [2] Plaintiff was not engaged in a workplace activity when she sustained the injury.

The Appellate Division affirmed Supreme Court's determination that NYCTA's decision denying Plaintiff's request for the "differential pay" benefit was supported by a rational basis noting that "[t]he rules for receiving differential pay state that the employee must have sustained an accidental injury while engaged in the performance of his/her assigned duty for NYCTA, and such accidental injury was the direct cause of the employee's incapacity for work." Further, said the court, the rules require, among other things, "that the employee give due notice of the accident" and NYCTA reasonably found that Plaintiff "failed to provide timely notice of her injury, as she reported it four days after her flight." Nor did she specify that her injury was work-related but stated only that her  medical condition required time off from work.

In addition, the Appellate Division opined that Plaintiff failed to meet the other requirements for the "differential pay" benefit as there was "uncertainty regarding whether she was engaged in an assigned work activity when the injury occurred, since traveling to work is not considered a workplace activity," citing Greene v City of New York Dept. of Social Servs., 44 NY2d 322, and Plaintiff's "medical records showed that she had a personal history of DVT and other comorbidities."

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_05131.htm

 

An arbitrator's determination may be based on hearsay testimony

Supreme Court confirmed an arbitration award terminating petitioner's [Educator] employment as a tenured teacher.

The Appellate Division unanimously affirmed the lower court's ruling, explaining that the  arbitrator's determination that Educator's teaching performance and judgment were poor during the relevant three-year period has a rational basis in the record and was not arbitrary and capricious.

The record, said the court, includes 10 substantiated written observational reports and testimony from multiple school administrators demonstrating inadequate teaching, efforts at remediation, and lack of improvement over the three-year period. In addition there was evidence that the Educator behaved unprofessionally toward a student.

Although Educator argued that there was no direct evidence substantiating certain of the charges against her, the Appellate Division noted that "an arbitrator's determination may be based on hearsay,"* citing Matter of Colon v City of N.Y. Dept. of Educ., 94 AD3d 568. Further, opined the court, "courts may not reweigh the evidence or substitute their own credibility determinations for those of the arbitrator."

Citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, the Appellate Division said that under the circumstances, the arbitrator's imposing the penalty of termination did not shock its sense of fairness.

* Concerning the use of hearsay evidence in administrative proceedings, it is well established that "[h]earsay evidence can be the basis of an administrative determination" [see Gray v Adduci, 73 NY2d 741]. Notwithstanding the admissibility of hearsay as competent evidence, an employee may not be found guilty of charges solely on the basis of hearsay; some real evidence is required [Brown v Ristich, 36 NY2d 183; Carroll v Knickbocker Ice Co., 218 NY 435].

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_05586.htm

Claiming qualified immunity after denying an individual access to school district property

The petitioner [Plaintiff] appealed the dismissal of her 42 U.S.C. §1983 claims against the Central School District [District] and the District's Superintendent [Superintendent] by a federal district court.

Plaintiff had contended that her First Amendment and due process rights were violated when the Superintendent required her to obtain prior written permission to visit school property and that the Superintendent "expanded the scope of the restriction in retaliation for her objection to this requirement," and that these alleged violations occurred pursuant to a District custom or policy.

The United States Court of Appeal, Second Circuit, affirmed the federal district court's dismissal of Plaintiff's complaint, rejecting her arguments that:

(1) the limitations on her access to school property were not reasonable because no reasonable person could have believed that she was attempting to evade the school’s security procedures or that she otherwise presented a risk of disruption; and 

(2) in the absence of such a justification and because [the Superintendent] imputed a “negative” opinion of the school to her, a reasonable factfinder could conclude that the restrictions placed on her also were not viewpoint-neutral."

The court explained that the district court’s grant of qualified immunity to the District and Superintendent was premised on its conclusion that the parties did not dispute that the restriction “was a content-neutral response to [Plaintiff's] attempt to circumvent the school’s security protocol.”

In the words of the Circuit Court, “Qualified immunity insulates public officials from claims for damages where their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

Addressing the doctrine of qualified immunity, the decisions notes that “[W]hen a defendant official invokes qualified immunity as a defense in order to support a motion for summary judgment, a court must consider two questions: 

(1) whether the evidence, viewed in the light most favorable to the plaintiff, makes out a violation of a statutory or constitutional right; and

(2) whether that right was clearly established at the time of the alleged violation”

and under the second prong, officials are “entitled to qualified immunity [when] their decision was reasonable, even if mistaken.”

Qualified immunity is an affirmative defense and the defendant bears the burden of proof. Plaintiff did not present any evidence that contradicted the Superintendent's testimony that he believed that Plaintiff was attempting to bypass the school’s security policy when he confronted her on the morning of the incident nor did Plaintiff ever argued that the initial restriction announced in the letter sent to her was "viewpoint-based."

Thus, said the court "[a]bsent a genuine dispute as to whether the restriction on [Plaintiff’s]  access to school property was viewpoint-based, [the Superintendent] is entitled to qualified immunity on [Plaintiff’s] First Amendment claim because the evidence, even construed in [Plaintiff's] favor, established that a reasonable official could have believed that (1) [Plaintiff] was attempting to circumvent school security procedures and (2) the notification restriction was a reasonable and constitutional response to her actions."

Further, said the court, "it was not clearly established that a permission requirement was an unconstitutional response to a parent’s attempt to evade a security restriction," noting  that based on its precedent, including its conclusions about the contours of parents’ clearly established First Amendment rights at the time of the underlying events, "a reasonable superintendent in [the Superintendent's] position could have concluded that a parent can lawfully be restricted from school activities based on a risk of disruption or safety concerns as long as those concerns are not a pretext for viewpoint discrimination, and that a requirement that a parent receive prior permission to enter school property is a minor and reasonable response to such concerns."

Addressing Plaintiff's argument that the District was liable for the alleged violations of her constitutional rights because it maintained a custom or policy of permitting the Superintendent to make unilateral decisions regarding the enforcement of the District visitor’s policy, in contravention of the written policy placing this authority with school principals, the Circuit Court stated that to establish liability against the District under 42 U.S.C. §1983 Plaintiff was required to show that an official custom or policy caused a violation of her constitutional rights.* Here, again in the words of Circuit Court, "the district court properly concluded that the cited custom did not cause a deprivation of [Plaintiff's] rights — a custom of delegating authority to enforce the District visitor’s policy to [the Superintendent] does not establish the existence of a custom of permitting [the Superintendent] to exercise that authority unlawfully."

Finding that the Plaintiff did not show the existence of a policy or custom of imposing unconstitutional restrictions on access to District property and noting that the Superintendent had restricted access to school property on only four other occasions in the more than ten years he served as Superintendent, and there is no evidence that these other restrictions were not reasonable responses to legitimate safety concerns, the Circuit Court held that the district court properly granted summary judgment to the District on Plaintiff’s Monell claim.

* See Monell v. Dep’t of Social Services of the City of N.Y., 436 U.S. 658.

The decision is posted on the Internet at https://www.leagle.com/decision/infco20201022076

 

A court will not confirm an arbitration award where it is in explicit conflict with law, rule or regulation and the relevant policy concerns

In this proceeding brought pursuant to CPLR Article 75 to modify an arbitration award the Nassau Healthcare Corporation [Employer] appealed that portion of an arbitration award that ordered the Employer to reinstate three Petitioners* [Employees] to their former positions while the Employee's cross-appealed that part of the arbitration award providing for reinstatement without back pay.

The genesis of this action was the Employees being terminated by the Employer based upon an incident that occurred during which the Employees allegedly ignored approximately nine minutes of visual and audible alarms signaling that a ventilator-dependent resident was in respiratory distress.

Pursuant to the collective bargaining agreement, the Employees' collective bargaining representative filed a grievance challenging these terminations and the matter ultimately proceeded to arbitration. The Employees elected not to testify at the hearing.**

Following the hearing, the arbitrator issued an award finding that Employer did not sustain its burden of proving that the blaring alarm of the central alarm system throughout the unit, which signaled a respiratory emergency, was triggered. However, because of the employees' failure to testify at the hearing, the arbitrator drew an adverse inference against them on the factual issue of whether the beeping alarm coming from the ventilator machine in the patient's room itself, which did not necessarily signal an emergency, was audible to them at the nursing station.

The arbitrator ruled that the Employees should be reinstated to their former positions, but directed that they be reinstated without back pay. Supreme Court confirmed the arbitration award and the Employer appealed.

The Appellate Division granted the Employer's motion to vacate the arbitration and dismissed the Employee's cross-appeal seeking back-pay as academic. The court also awarded "one bill of costs" to the Employer, payable by the Employees.

The Appellate Division, citing Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, and Matter of Banegas v GEICO Ins. Co., 167 AD3d 873, pointed out that an arbitration award may be vacated if it violates strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on an arbitrator's power.

Considering the public policy exception, the Appellate Division commented that "a court may vacate an arbitral award where strong and well-defined policy considerations embodied in constitutional, statutory or common law prohibits a particular matter from being decided or certain relief from being granted by an arbitrator" and the focus of the analysis [in making that determination] is on the award itself." Quoting from New York State Correctional Officers and  Police Benevolent Assn. v State of New York, 94 NY2d at 327, the Appellate Division held that a court may vacate an award on public policy grounds "where the final result creates an explicit conflict with other laws and their attendant policy concerns,.

Here, opined the Appellate Division, the record reflects that after the employees were indicted on felony charges, the Office of Medicaid Inspector General [OMIG] notified the employees that they were excluded "from participation in the New York State Medicaid program based on New York State regulations authorizing the immediate exclusion of a person who has been charged with committing an act which would be a felony under the laws of New York and which relates to or results from," among other things, "the furnishing of or billing for medical care, services or supplies."

Citing 18 NYCRR 515.5(c), the court said that "[a] person who is excluded from the program cannot be involved in any activity relating to furnishing medical care, services or supplies to recipients of medical assistance for which claims are submitted to the program, or relating to claiming or receiving payment for medical care, services or supplies during the period." Further, the regulations also preclude reimbursement for medical care, services, or supplies provided by an excluded person.

Clearly the final result of the arbitrator's award in this case, reinstating the Employees to their former positions, "creates an explicit conflict with the subject regulations and their attendant policy concerns." Accordingly, under the particular circumstances of this case, the Appellate Division concluded that Supreme Court should have granted the Employer's motion to vacate that portion of the award providing for the reinstatement of the Employees, thereby mooting their claims to back salary.

* The three Employees involved were two registered nurses and a nurse aide

** Subsequently the Employees were indicted on several misdemeanor and felony charges, including criminally negligent homicide..

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06777.htm

 

Claim of having an "invisible" or "hidden" disability undermines unlawful disability discrimination complaint

New York State Division of Human Rights [DHR] found no probable cause to believe that the New York City Human Resources Administration [HRA] had discriminated or retaliated against the petitioner [Plaintiff] in violation of the New York State Human Rights Law and dismissed Plaintiff's compliant. Plaintiff filed a CPLR Article 78 petition challenging DHR's determination.

The Appellate Division unanimously affirmed DHR's ruling, explaining that the DHR's determination of no probable cause to find that HRA engaged in disability discrimination against Plaintiff was rationally based in the record and not arbitrary and capricious.

Plaintiff had described her traumatic brain injury condition as an "invisible" or "hidden" disability, meaning that the "symptoms are invisible" and "not immediately apparent." This, said the court, "undermines [Plaintiff's] interactive dialogue contention, and indeed her disability discrimination and reasonable accommodation claims, since it suggests that it would not have been evident to HRA staff interacting with her that she was in fact disabled."

Further, noted the Appellate Division, it also did not appear that 'Plaintiff ever substantiated her disability for the HRA staff she interacted with," such as by presenting of a doctor's note" nor did Plaintiff ever demonstrate to HRA that her disability reasonably warranted the accommodation she requested. Addressing Petitioner's "broader disability discrimination claim -- that HRA staff "mistreated her and sidetracked her application because of animus against disabled persons" -- the court again opined that such an assertion was undermined by her claim that her traumatic brain injury is "invisible."

Coupled with Plaintiff's own claim that "HRA staff mistreated everyone at the job center," the Appellate Division concluded that DHR had rationally determined that Plaintiff failed to show that she was treated adversely under circumstances warranting an inference of discrimination.

As to Plaintiff's allegations of retaliation, the court decided that DHR rationally determined that HRA did not retaliate against Plaintiff and that HRA's initial denial of her application was not arbitrary in view of the fact that is was accompanied by an explanation that Plaintiff had "failed federal poverty guidelines." Plaintiff, said the Appellate Division, presented no evidence that this explanation "was false or pretextual and that discrimination and/or retaliation was the real reason" for HRA's action.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06038.htm

New York State Bar Association Local and State Government Law Session Three: October 29

Topics in Municipal Labor Relations During the Pandemic:

Part One – Civil Service and Educator Layoffs and Reductions in Force

Part Two – FLSA Considerations in a Remote Working Environment

There are still seats available for the third session of the Local & State Government Law Virtual Fall Meeting Series. 

Register Now

A grievance filed pursuant to the relevant collective bargaining agreement bars the grievant's simultaneously submitting an Education Law §310 appeal concerning the same issue to the Commissioner of Education

Citing Matter of Board of Education, Commack UFSD v. Ambach, 70 NY2d 501, Interim Commissioner of Education Betty A. Rosa noted that "it is well-settled that a school employee who elected to submit an issue for resolution through a contractual grievance procedure may not bring an appeal to the Commissioner [of Education] pursuant to Education Law §310 for review of the same matter."

In this appeal to Interim Commissioner of Education Rosa the educator [Petitioner] challenged a determination of the Board of Education [Board] not to appoint him to a coaching position. Petitioner also joined the individual [Individual] whom the Board appointed to fill the position as a respondent.*

Petitioner holds permanent certification in the area of physical education, is a tenured physical education teacher and served as coach of the School District's boys’ varsity basketball team for 11 consecutive seasons prior to 2019. In 2019 the district’s director of physical education, health, and athletics informed Petitioner of numerous concerns with his performance as a coach and identified a number of “standards” that Petitioner would be required to comply with “[i]f [he] wish[ed] to continue to be recommended for the position of Varsity Boys[’] Basketball Coach.”** Petitioner signed this "counseling memorandum" which reflected his receipt of the memorandum and his acknowledgement that it would be placed in his personnel file.

In April, 2019, Petitioner was advised in writing of [1] “the termination of [his] assignment as Boys[’] Varsity Basketball Coach, effective immediately” and [2] that the letter that it was issued pursuant to the Faculty Association’s collective bargaining agreement. Thereafter, the Board advertised for the position of boys’ varsity basketball coach.  Four individuals applied to the position, including Petitioner and Individual.  The Board interviewed all four applicants and determined that Individual was the best candidate for the position.  In September 2019 the president of the Faculty Association requested that the reasons for Petitioner’s non-appointment.

Individual was appointed by the Board to serve as the boys’ varsity basketball coach and this appeal ensued in which Petitioner argued that [1] The Board violated 8 NYCRR §135.4 in appointing Individual to the boys’ varsity basketball coach position and [2] sought an order annulling Individual's appointment and ordering the Board to appoint Petitioner as the boys’ varsity basketball coach for the 2019-2020 season.

Respondents argue that the appeal must be dismissed because [1] Petitioner had pursued a grievance under the relevant collective bargaining agreement and [2] the Board further contends that its determination to appoint Individual to the position was neither arbitrary nor capricious.

The Commissioner ruled that Petitioner's appeal must be dismissed for lack of jurisdiction, observing that on the same day Respondents were served with a copy of the this §310 Appeal Petitioner filed a grievance under the Faculty Association’s collective bargaining agreement.  In that grievance, Petitioner requests that the Board “rescind the appointment” of Individual and appoint Petitioner as the boys’ varsity basketball coach for the 2019-2020 season.***

Noting that Petitioner raised the same claims in his §310 appeal as he raised in his grievance, the Commission dismissed his appeal, explaining that under the holding of in Board of Education, Commack UFSD v. Ambach, Petitioner’s "initiation of the grievance process [had] divested the Commissioner of jurisdiction over his instant claims for purposes of an appeal pursuant to Education Law §310."

Further, opined the Commissioner, "[i]n any event, Petitioner’s claims would be dismissed under the doctrine of election of remedies," as his prior commencement of an action or proceeding in another forum for the same or similar relief constitutes an election of remedies which precludes the initiation of an appeal to the Commissioner, explaining that "[i]t would be contrary to the orderly administration of justice for the Commissioner to decide issues that a petitioner has elected to raise in another forum."

Finally, although the Commissioner dismissed Petitioner's appeal on procedural grounds, the Commissioner pointed out that Petitioner's "prior misconduct does not fit neatly within the 'coaching qualifications' set forth in 8 NYCRR §135.4(c)(7)(i)(c)," earlier decisions of the  Commissioner of Education indicate that the Commissioner "has previously declined to find a board of education’s refusal to appoint a certified teacher as a coach to be arbitrary or capricious where the teacher, by his own affirmative acts of misconduct, removed himself from eligibility for such appointment."

* Petitioner also joined the individual whom the Board appointed to fill the position as a respondent. Respondent Board and the individual are referred to collectively as “Respondents” where appropriate.

** Petitioner signed this memorandum, which reflected his receipt of the memorandum and his acknowledgement that it would be placed in his personnel file.

*** The record reflects that the Board denied Petitioner’s grievance during the pendency of this §310 appeal and subsequently Petitioner sought to submit the Board’s determination to arbitration.

The decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume60/d17927

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Freedom of Information disclosure exemptions involving inter-agency or intra-agency materials

§86.3 of Article 6, "Freedom of Information" [FOIL] of the Public Officers Law, defines the term "Agency" as "any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."

Riverkeeper, Inc. [Riverkeeper] filed a FOIL request with the Port Authority of New York and New Jersey [Authority] seeking copies of certain communications between the Authority and the Federal Aviation Administration [FAA]. 

The Authority declined to provide these materials* and Riverkeeper filed a CPLR Article 78 petition seeking a court order requiring the Authority to provide it with the information it demanded. Supreme Court ordered the Authority to disclose the materials sought in Riverkeeper's FOIL request and the Authority appealed.

Citing Public Officers Law §87[2][g], and Matter of Town of Waterford v New York State Dept. of Envtl. Conservation, 18 NY3d 652, the Appellate Division held that Supreme Court "properly determined that the exemption to FOIL disclosure requirements for inter-agency or intra-agency materials ... does not apply to the communications between the Port Authority and the Federal Aviation Administration [FAA] because the FAA is a federal entity."

The Appellate Division also noted that Supreme Court "properly concluded that the common interest doctrine does not apply in this case."

* The basic concept underlying FOIL is that all government documents and records, other than those having access specifically limited by statute, are available to the public. The custodian of the records or documents requested may elect, but is not required, to withhold those items that are within the ambit of the several exceptions to disclosure permitted by FOIL. In other words, there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.  The release of some public records, however, may be limited by statute such as Education Law §1127 - Confidentiality of records and §33.13 of the Mental Hygiene Law - Confidentiality of clinical records. 

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_05833.htm

 

 

State and municipal audits issued on October 20, 2020

On October 20, 2020, New York State Comptroller Thomas P. DiNapoli announced the following agency and school district audits had been issued.

Click on the text in blue to access the full text of the audit. 

Agency Audits:

Office of General Services (OGS): Compliance with Executive Order 88 – Energy Efficiency of State Buildings (Follow-Up) (2020-F-18)

An audit, covering the period April 1, 2014 to May 13, 2019, found OGS generally had developed targets and plans to contribute toward EO 88 and complied with the guidelines. However, auditors found OGS had relied on one capital project to provide the majority of its energy savings. OGS also needed to develop a contingency plan to replace the project and to continue developing energy-saving capital projects to contribute toward the collective 20 percent energy reduction. In a follow-up, auditors found OGS has made significant progress in correcting the problems identified in the initial report. 

 

Department of Health (DOH): Improper Medicaid Payments for Recipients in Hospice Care (Follow-Up) (2019-F-59)

An audit released in December 2018 identified over $8 million in improper Medicaid payments for medical services provided to recipients receiving hospice care. Many of the overpayments occurred because the DOH did not have a process to identify and track Medicaid recipients receiving hospice care. In a follow-up, auditors found DOH officials did not make much progress in addressing the problems identified in the initial audit, and significant action is still required to prevent future Medicaid overpayments.

 

New York City Department of Education (DOE): Compliance with Special Education Regulations for the Provision of Services (2018-N-5)

Auditors determined that DOE did not arrange for special education services within the required 60 school days for 18 percent of the eligible students in school year 2016-17. Noncompliance ranged from 32 percent in District 9 (located in the South Bronx) to 4 percent in District 11 (Northeast Bronx). Auditors also found situations where DOE provided services without the required parental consent.

 

Metropolitan Transportation Authority (MTA): Administration of Self-Insured Workers’ Compensation Plans (2018-S-33)

There is room for improvement in how the MTA’s three self-insured agencies administer workers’ compensation plans making sure they meet the self-insurers’ obligations. Auditors found inconsistent processes and application of the law across agencies have resulted in late, inaccurate, or sometimes missed administration of benefits, placing an undue financial burden on injured employees.

 

New York City Department of Transportation: Oversight of Selected Aspects of Traffic Controls (2018-N-6)

The department monitored traffic flow at intersections, but did not address the concerns of the public and officials in a timely manner. Auditors reviewed several units that were supposed to perform monitoring and operational tasks and found that all of them need to improve their performance. 

 

New York City Department of Transportation: Controls over Revocable Consents (2010-N-1)

A revocable consent grants an individual or organization the right to construct and maintain certain structures on, over, or under New York City streets and sidewalks. To obtain this right, the property owner must file a petition for the revocable consent. The department charges an annual rate for eligible revocable consents, based on either a formula or a flat rate. Auditors found the department did not bill and collect the correct annual rates for the majority of consents reviewed. It was inconsistent in its application of the rules and did not always apply them as written when calculating the annual rate to be billed. As a result, the grantees were undercharged an estimated $1,056,242.

 

New York State Health Insurance Program: CVS Health – Temporary Holding Account Rebate Revenue (Follow-Up) (2020-F-25)

An audit issued in October 2019 found that CVS Health improperly designated a temporary holding account used to process certain prescription drug claims, as “non-rebate-eligible.” As a result, CVS Health did not seek rebates from drug manufacturers on claims in the temporary holding account that were, in fact, rebate-eligible. In a follow-up, auditors found CVS Health has made significant progress in correcting the problems identified in the initial report, having implemented both recommendations.

 

New York State Liquor Authority (SLA): Internal Controls Over Selected Financial Operations (2019-S-69)

Auditors found SLA has adequate internal controls in the areas of revenues, payroll, procurement and procurement card expenditures, asset management, and travel expenses to ensure assets and information are properly managed and safeguarded.

 

State Education Department (SED): Oversight of Pupil Transportation Services (2019-S-49)

Auditors determined SED could further enhance its efforts to monitor school districts’ compliance with its own requirements for school bus drivers, monitors and attendants. As a result, SED does not have assurance that school bus drivers, monitors, and attendants across the state are qualified and have completed the required training. 

 

School District Audit:

Dalton-Nunda Central School District – Financial Management (Allegany County, Livingston County and Wyoming County)

The board and district officials did not adopt realistic budgets and effectively manage fund balance and reserves. The board’s actions to manage fund balance were not transparent and made it appear that the district needed to both increase taxes and use appropriated fund balance to close projected budget gaps. The board circumvented the statutory limit on surplus fund balance by making $7.8 million in unbudgeted year-end transfers to reserves and appropriating $900,000 in fund balance that was not used. As of June 30, 2019, recalculated surplus fund balance exceeded the statutory limit by more than $1.3 million or 8 percentage points and two general fund reserves were overfunded.

 

Naples Central School District – Information Technology (Livingston County, Ontario County Steuben County and Yates County)

District officials did not ensure that the district’s network access controls were secure. Officials did not regularly review network user accounts and permissions to determine whether they were appropriate or needed to be disabled. The district had 63 unneeded network user accounts that had not been used in at least six months. In addition, sensitive information technology control weaknesses were communicated confidentially to officials.

 

Oneida City School District – Information Technology (Madison County and Oneida County)

The district’s network was not adequately secure to protect the student information system against unauthorized use, access and loss. District officials did not adequately manage user accounts or administrative permissions to limit access to assets and data. In addition, some district computers were used for personal activity, increasing the likelihood of the district’s network being exposed to malicious software. A written disaster recovery plan was not made available to the Comptroller’s auditors or the board of education for review and approval. Sensitive information technology control weaknesses were communicated confidentially to officials.

 

Courts apply longstanding basic rules of statutory interpretation to ascertain and give effect to the intention of the legislature

In July 1976 legislation that fundamentally reformed the state pension systems was enacted and signed into law. Included were changes providing that "any public employee hired on or after July 1, 1976 would be enrolled in the newly-created Tier 3 [a system]  characterized as one 'designed to provid[e] uniform benefits for all public employees and eliminat[e] the costly special treatment of selected groups ... inherent in the previous program.'"

An exception to this pension reform allowed all police officers and firefighters who subsequently entered or reentered a public retirement system to continue as Tier 2 members pursuant to "regular two-year extender bills" until 2009 and, as relevant here, all NYPD officers appointed between July 1, 2009 and March 31, 2012 were placed in Tier 3 of the New York City Police Pension Fund (PPF) while all officers appointed on or after April 1, 2012 were placed in revised but functionally similar Tier 3 plans of the same pension fund.

The focus in this appeal was City of New York's policy to the effect that certain Tier 3 officers were not eligible for certain benefits available to officers in Tier 2 of the PPF retirement plan, including the "credit for service" mechanism* that allows police officers to obtain credit for certain periods of absence without pay for childcare leave, while other PPF retirement plan member absent without pay for childcare leave permitted under NYPD regulations would be eligible for a limited amount of credit for that leave if certain filing and reimbursement requirements were met.

Plaintiffs in this action, among other things, sought a decision declaring that "all police officers hired by the NYPD, including those hired on or after July 1, 2009, are eligible for the benefits afforded by the second subdivision (h) of §13-218," notwithstanding the absence of any extender bill after 2009, and all members of the PPF - regardless of hire date - may purchase pension credit for time spent on unpaid childcare leave."

The City, in contrast, asserted that the relevant provisions of the RSSL "conflict with the Administrative Code and that the pension rights of Tier 3 police officers are exclusively governed by article 14 of the Retirement and Social Security Law [RSSL]." Specifically, the City argued that RSSL §513(h) [1] "addresses the issue of service credit for [childcare] leave," [2] overrides any like provision of Administrative Code §13-218, and [3] "limits the eligibility for such credit to New York City correction officers hired before April 1, 2012."

Supreme Court reasoned that Administrative Code §13-218 (h), on its face, renders any member of the PPF eligible for the childcare leave service credit benefit, and that the RSSL does not conflict with or preempt that part of the Administrative Code**. 

The Appellate Division reversed the Supreme Court's ruling, denying Plaintiffs' motion for summary judgment and granting the City's cross motion for accelerated relief. The Appellate Division reasoned that "because the RSSL expressly makes the childcare leave service credit benefit in question available to correction officers, but does not expressly confer the same benefit upon police officers, the legislature meant to nullify the part of the Administrative Code allowing the buyback to police members of the retirement system."

Referencing the longstanding, basic rules of statutory interpretation, the Court of Appeals said that in such matters a court's "primary consideration is to ascertain and give effect to the intention of the [l]egislature", citing Samiento v World Yacht Inc., 10 NY3d 70. The rule of statutory interpretation relevant here, said the court, is that the literal language of a statute controls "unless the plain intent and purpose of [the] statute would otherwise be defeated."

Noting that Administrative Code §13-218(h) "Credit for service" provides, in relevant part, that: "any member who is absent without pay for child care le[a]ve of absence pursuant to regulations of the New York city police department shall be eligible for credit for such period of child care leave provided such member files a claim for such service credit with the pension fund by December [31, 2001], or within [90] days following termination of the child care leave, whichever is later, and contributes to the pension fund an amount which such member would have contributed during the period of such child care leave, together with interest thereon", the Court of Appeals opined that "none of the pertinent parts of the statute are ambiguous and 'Any member' can mean only what it says."

In the words of the court, "The reference to 'any member' is unbounded and unfixed to employees of a particular Tier, and the absence of an exception applicable to Tier 3 employees cannot reasonably be attributed to carelessness or mistake."

Rejecting the principal contentions advance by the City in support of its position, the Court of Appeals, Judge Rivera dissenting in an opinion in which Chief Judge DiFiore concurred, held that the Appellate Division order should be reversed and, applying "longstanding, basic rules of statutory interpretation," that the relevant part of "Administrative Code §13-218 renders officers of the New York City Police Department (NYPD) who are members of the Tier 3 retirement system eligible for credit for certain periods of unpaid childcare leave, and that the grant of such benefits for those officers is consistent with the Retirement and Social Security Law."

* See Administrative Code §13-218 [h].

** See 56 Misc 3d at 442-443. 

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_05841.htm

 

An individual may be subjected to disciplinary action for alleged off-duty misconduct having a clear nexus to his status as an employee

During an investigation by the New York City Department of Education's [DOE] Office of Special Investigations [OSI] into a complaint that confidential student information had been posted on the Internet, the plaintiff [Petitioner], a DOE employee, acknowledged that he was involved in posting the information at issue on the website of United Federation of Teachers (UFT) Solidarity, "a political caucus within the UFT."

Contending that OSI has no jurisdiction to investigate his alleged misconduct because he undertook this activity as a private citizen and education activist, not in his capacity as a DOE employee, Petitioner filed a CPLR Article 78 action asking the court to annul DOE's determination that he had violated Chancellor's Regulation A-820 and the federal Family Educational Rights and Privacy Act* [FERPA].

The Appellate Division said that Petitioner's argument that OSI has no jurisdiction in this matter "is unavailing," opining that Petitioner's misconduct has a clear nexus to his status as a DOE employee. Citing Board of Educ. City of N.Y. v Hershkowitz, 308 AD2d 334, leave to appeal dismissed 2 NY3d 759, the Appellate Division explained that OSI is charged with investigating misconduct within the City of New York school district, which is not limited to misconduct committed by a DOE employee acting within the scope of his employment.

The court noted that OSI had rationally determined that by posting the confidential student information at issue, which included transcripts, attendance records, and grade-change records, Petitioner had violated the FERPA and Chancellor's Regulation A-820, which conforms to federal regulations promulgated pursuant to FERPA.**

* See 20 USC § 1232g[b][2]. 

** See 34 CFR part 99.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_05703.htm

 

Sewer overflow problems

New York State Comptroller Thomas P. DiNapoli notes that at least 20 percent of the publicly-owned sewer systems in New York state were not reporting overflow events or registered with the electronic notification system (NY-Alert) that tracks those events, potentially putting the public at risk, according to an audit of the NYS Department of Environmental Conservation DEC] released on October 19, 2020.

Two laws related to wastewater discharges protect New York’s natural resources and the health of its residents: the 2013 Sewage Pollution Right to Know Act, which requires public reporting of sewage discharges; and the State Pollutant Discharge Elimination System (SPDES) program, which controls permitted discharges into public waterways.

The Right to Know Act requires publicly owned water treatment works and publicly owned sewer facilities to report untreated and partially treated sewage discharges to DEC and the local health department within two hours of discovery and to notify the public and nearby municipalities within four hours of discovery. Exposure to untreated sewage can cause serious illnesses such as dysentery, hepatitis, cholera and cryptosporidiosis, according to the U.S. Environmental Protection Agency.

Auditors found that documentation supporting when overflows occurred varied by facility but included automated emails, phone calls, and text messages from the facilities’ monitoring systems or time-stamped screenshots of the monitoring system dashboard, and logbook entries. Some facilities were unable to provide time-stamped documentation. Due to these limitations, auditors could not verify the timeliness of 37 percent of the events. Of the other events, 18 percent were not reported within two hours and 10 percent were not reported within four hours, as required.

DEC officials generally agreed with the recommendations and indicated actions they would take to implement them. Their full comments are included in the report posted on the Internet at https://www.osc.state.ny.us/files/state-agencies/audits/pdf/sga-2021-19s54.pdf?utm_medium=email&utm_source=govdelivery.

School District audits released during the week ending October, 16, 2020

New York State Comptroller Thomas P. DiNapoli announced the following school district audits have been issued during the week ending October 16, 2020

Broadalbin-Perth Central School District – Cash Management (Fulton County, Saratoga County and Montgomery County) - District officials did not develop and manage a comprehensive investment program. As a result, officials did not maximize interest earnings for the district. In addition, officials did not formally solicit interest rate quotes or prepare cash flow forecasts to estimate the amount of funds available for investment. Officials earned interest totaling $40,652 during the audit period. However, auditors determined they could have earned another $159,100 had officials used other available investment options.

Mahopac Central School District – Non-instructional Payroll (Putnam County) - The transportation department’s payroll was not adequately approved, supported and documented. In addition, a staff person received overtime pay that was not properly supported by documentation.

Minerva Central School District – Financial Condition Management (Essex County and Warren County) - District officials overestimated appropriations by a total of more than $2.1 million from 2016-17 through 2018-19 and annually appropriated fund balance that was not used to finance operations. Unrestricted fund balance ranged between 18.5 and 31.1 percent of ensuing years’ appropriations, exceeding the 4 percent statutory limit. In addition, district officials did not develop a comprehensive multiyear financial plan.

New York Mills Union Free School District – Procurement (Oneida County) - District officials did not always seek competition for purchases that are not subject to competitive bidding. Officials also did not comply with the district’s procurement policy. Auditors determined the purchasing agent did not effectively perform her procurement duties. In addition, officials did not always seek competition for professional services. No competition was sought for the services procured from five professional service providers totaling $89,421. No written or verbal quotes were obtained for the purchase of goods and services from 13 vendors who were paid $73,032.

 

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10 RBG Takeaways from 2 Lawyers

Ruth Bader Ginsburg’s passing has spurred great memories from across all demographics. She paved the way for women’s equality—from the right to sign a mortgage without a man to the right to have a bank account without a male co-signer, and even the right to have a job without being discriminated against based on gender.   

 

What did the accomplishments of Ruth Bader Ginsburg mean to generations of women in the workforce?  Here, Erica Baird and Karen Wagner, two successful lawyers now retired—and the cofounders of Lustre.net, an online community whose mission is to redefine retirement for modern career women by confronting outdated concepts and defying stereotypes—talk lawyer-to-lawyer as they reflect on 10 RBG Takeaways that can inspire every woman [Ed. Note: " and man"] … young and old: 

 

1. Find a job you love. RBG was rejected, again and again, including by New York law firms. But just think—if she had been employed in a law firm, she likely never would have ascended to the Supreme Court. And that was her dream job.

 

2. Be strategic. Figure out where you want to go, and then, before you start, figure out how best to get there. RBG did that with her litigation strategy. Showing how men were hurt by sex discrimination was a more effective strategy than having only women plaintiffs. 

 

3. Be human. Separate your advocacy from your relationships. And do have relationships. RBG's best friend was her fellow justice Antonin Scalia. She disagreed with him, fiercely, about pretty much every legal point. But they loved each other, and bonded over music, and over dinners prepared by RBG's husband. It was not a transactional relationship; it was a human relationship.

 

4. Work hard. You must earn your victories. RBG started working hard when she was a new lawyer, and she never stopped. Look at the honor guard at the Supreme Court for her memorial, composed of people who worked as her clerks, responding to 2 a.m. faxes and constant demands for more precise analysis, as long as she lived. They undoubtedly loved her for her humanity, but they also surely loved her because she made them better lawyers.

 

5. Be precise. Words matter. The practice of law is a combination of analysis and communication. Communication is more effective when it is spare and clear. RBG's writing was crisp and muscular. Any reader got her point.

 

6. Presence matters. Justice Ginsburg always looked professional and elegant in her Armani suits and her long black robes. She was all brilliant lawyer and all powerful woman. And, like Barbara Bush with her faux pearls, RBG sent signals with her decorative collars.

 

7. Find a good partner. Her “Marty” was legendary—an attorney in his own right, not threatened by a strong woman.

 

8. Advocate with humor. As she did when becoming a little deaf, or remarking that the Supreme Court will have a sufficient number of women only when there are nine.

 

9. Find something outside of your job to love. She found opera, and lost herself in music.

 

10. Work out. RBG, the documentary, showed RBG working out very strenuously. Like everything else she did, she went all out. If you do the same your lives will be richer for it.

 

About Lustre.net
Lustre.net is an online forum founded by Erica Baird and Karen Wagner, two New York City retired attorneys. Together, Baird and Wagner are on a mission to redefine retirement for modern career women by confronting outdated concepts, defying stereotypes and raising our collective voices to ensure that retirement for all of us is shaped by women, for women. Baird and Wagner want women to “tap into our experiences and passions, forge new identities and find new purpose—and pass on what we know to the next generation.” 

 

Posted by NYPPL with the permission of Mouth Digital PR [Justin.loeber@mouthdigitalpr.com].