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State of New York vs. COVID-19 - Governor Andrew M. Cuomo periodically updates New Yorkers on the state's progress during the ongoing COVID-19 pandemic. The latest reports of the number of new cases, the percentage of tests that were positive and many other relevant data points concerning COVID-19 are available at forward.ny.gov.

N.B. §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL applies this protocol to individuals referred to in a decision self-identifying as LGBTQA+.

May 13, 2021

Court finds dismissal of a teacher during her probationary period supported by documentary evidence, performance evaluations and the existence of attendance issues

Supreme Court denied the CPLR Article 78 petition filed by a New York City probationary teacher [Plaintiff] seeking a court order annulling a determination of the New York City Board of Education and others [Respondents] that resulted in the termination Plaintiff's employment as a teacher.

Plaintiff appealed the Supreme Court's ruling. The Appellate Division unanimously affirmed the lower court's decision.

Citing Matter of Che Lin Tsao v Kelly, 28 AD3d 320 and other decisions, the Appellate Division held that Supreme Court "properly concluded that [Plaintiff] failed to meet her burden of demonstrating, by competent proof, that a substantial issue of bad faith existed warranting a hearing."

The Appellate Division noted that "documentary evidence, performance evaluations and Plaintiff's attendance issues" supported the lower court's determination that the Respondents' discontinuance of Plaintiff's employment during her probationary period was not made in bad faith

Further, said the Appellate Division, Supreme Court "properly determined" that to the extent the Plaintiff's Article 78 petition sought to challenge Respondents' denial of Plaintiff's request to withdraw her prior resignation, such challenge was untimely. Accordingly, the Appellate Division did not consider Plaintiff's claim that the New York City Board of Education Chancellor's Regulation C-205, which addresses the "general requirements for licensure and provisions relative to the termination and restoration of licenses," was improperly applied in her case.

Regulation C-205.28 provides, in pertinent part, that "a pedagogical employee who has resigned may, at the discretion of the Executive Director of the Division of Human Resources, be permitted to withdraw such resignation for the purpose of reinstatement to service, regardless of whether the person was tenured or not on the date of his or her resignation."

Click HERE to access the Appellate Division's decision.


 

May 11, 2021

Adopting disciplinary procedures applicable to a town's police officers pursuant to §155 of the Town Law

An employee organization [Union] brought a CPLR Article 78 proceeding seeking dismissal of disciplinary charges filed against a police officer [Officer] in the collective bargaining unit represented by the Union by the appointing authority [Town] pursuant to §155 of the Town Law and "the disciplinary procedures outlined in the police manual."

The Union contended that such disciplinary charges must be brought pursuant to §75 of the Civil Service Law and the collective bargaining agreement [CBA] between it and the Town. Union also sought a court order compelling the Town to reinstate Officer, who had been suspended without pay pending a disciplinary hearing to the payroll. Supreme Court granted the Article 78 petition and the Town  appealed.

The Appellate Division vacated that part of the Supreme Court's judgment prohibiting the Town from conducting disciplinary proceedings pursuant to Town Law §155 and that part of the court's order directing the Town "to abide by Civil Service Law §75 and the collective bargaining agreement regarding disciplinary issues, and by reinstating the amended charges against [Officer]."

The Appellate Division indicated that Town Law §155 states that "[t]he town board shall have the power and authority to adopt and make rules and regulations for the examination, hearing, investigation and determination of charges" against members of the town police department. Further, said the court, "although the police manual does not specifically reference Town Law §155, the police manual contains language that mirrors that statute.

Citing Matter of Town of Wallkill v Civil Serv. Empls. Assn., Inc. [Local 1000, AFSCME, AFL-CIO, Town of Wallkill Police Dept. Unit, Orange County Local 836], 84 AD3d 968, affd. 19 NY3d 1066, the Appellate Division concluded that the police manual "invokes the Town Law" and, contrary to [Supreme Court's] determination, the lack of any specific reference to §155 in the police manual does not mean that the police manual was not adopted pursuant to that section of the Town Law, and does not preclude the Town from using the procedures set forth in the police manual.

The Appellate Division also held that Town Law §155 does not specify the methods to be used by a town board when adopting rules and regulations regarding police discipline, and thus the statute does not require that police disciplinary procedures be adopted by passing a local law rather than a resolution.

Accordingly, the Appellate Division held that "where, as here, a town board has adopted disciplinary rules pursuant to Town Law §155, those rules are controlling and Civil Service Law §75 and any collective bargaining agreement are inapplicable." Thus, said the court, the Town had the authority to initiate disciplinary proceedings established pursuant to Town Law §155 against the Officer.

The court, however, sustained Supreme Court's reinstating Officer's salary and benefits, noting that the police manual states that, "[p]ending the hearing and determination of charges of incompetency or misconduct, an officer or employee against whom such charges have been preferred may be suspended without pay for a period not exceeding thirty (30) days."

Click HERE to access the text of the Appellate Division's decision.

 

May 10, 2021

Free webinar on Reporting Election Workers Earnings

The Tax Exempt and Government Entities Division invites interested readers to register to watch the free webinar on Reporting Election Workers Earnings on June 24, 2021 at 1:00 p.m. (ET).

This webinar is designed to explain which workers should be treated as election workers and when taxes should be withheld from wages. It will also cover what should be included in earnings.

Questions emailed to: TEGE.outreach@IRS.gov with the subject line “Pre-submitted questions for Election Worker webinar (June 24)” will be answered as time permits. The deadline for submitting questions is June 10, 2021. 

For more information, see Webinars for Tax Exempt & Government Entities.

May 8, 2021

Audits and reports issued during the week ending May 7, 2021 by the New York State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending May 7, 2021.

Click on the text highlighted in color to access the complete audit report.

Local Governments

Town of Potter – Town Clerk (Yates County) A former clerk did not deposit, report and remit all collections to the appropriate parties in a timely and accurate manner. Auditors identified a cash shortage of $23,838 during this former clerk’s tenure. The former clerk did not complete monthly bank reconciliations, issue or properly prepare duplicate receipts, or retain receipts for all collections. In addition, the town board did not annually audit the clerk’s records as required. As a result of the audit and subsequent investigation, the former clerk was arrested in November of 2020. The matter is still pending in court.

South Butler Fire District – Board Oversight of Financial Operations (Wayne County) The board did not provide adequate oversight of the district’s financial operations and did not adopt or enforce key financial policies. As a result, the treasurer lacked guidance to adequately perform financial duties and did not maintain sufficient banking or purchasing records. The treasurer also funded and disbursed money from reserves without authorization and paid unapproved claims. Officials could not demonstrate the district obtained the best available prices on purchases auditors reviewed. In addition, the board adopted inaccurate and structurally imbalanced budgets and did not properly establish, fund or use reserve funds. Fund balances and real property tax levies were higher than needed to fund operations.

South Butler Fire Department – Oversight of Financial Activities (Wayne County) Department officers and members did not provide adequate financial oversight. As a result, officers and members were not in a position to monitor and assess the department’s financial status. Existing bylaw provisions were not enforced and adequate accounting and fundraising records were not maintained. Petty cash funds were not properly overseen or accounted for, and $65,658 was disbursed without any review or approval. In addition, auditors found the president routinely signed blank checks. The treasurer’s books and records were not annually audited as required. Required state and federal filings were not completed, and annual budgets were not prepared.

Town of Fishkill – Information Technology (Dutchess County) Town officials did not adequately secure and protect the town’s information technology (IT) systems against unauthorized use, access and loss. The board did not adopt adequate IT policies or a disaster recovery plan. Auditors also found officials did not adequately manage user accounts for the network or financial application. In addition, town employees did not comply with the acceptable use policy and officials did not monitor the use of IT resources. Sensitive IT control weaknesses were communicated confidentially to officials.

Town of Ithaca Justice Court – Justice Court Operations (Tompkins County) The justices collected, deposited, disbursed, recorded and reported the fines and fees auditors reviewed in an accurate and timely manner. During the audit period, the justices deposited 2,111 cash receipts totaling $306,087 and made 60 disbursements totaling $318,091. Auditors reviewed a sample of 556 cash receipts totaling $78,948 and all 60 disbursements totaling $318,091. There were no recommendations as a result of this audit.

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Find out how your government money is spent at Open Book New York. Track municipal spending, the state's 180,000 contracts, billions in state payments and public authority data. Visit the Reading Room for contract FOIL requests, bid protest decisions and commonly requested data.

 

May 7, 2021

Commissioner of Education dismissed §310 appeal naming teachers' association president as a respondent "for lack of jurisdiction"

Plaintiff filed a §310 Education Law petition challenge certain school district hiring practices. The petition named the board of education and the president of the school district's teachers' association as respondents.

With respect to the president of the teachers' association, Dr. Betty A. Rosa, Interim Commissioner of Education, dismissed Plaintiff's §310 appeal for "lack of jurisdiction."

The Commissioner explained that to the extent that Petitioner's requests for relief targeted the actions of an individual serving in his capacity as president of the teachers' association, "[i]t is well settled that union organizations and their representatives are not subject to the jurisdiction of the Commissioner of Education under Education Law §310."

In a footnote to the decision the Commissioner further opined that many of Petitioner's claims would be subject to dismissal on other grounds, including, but not limited to, being untimely and lack of standing to submit an appeal pursuant to Education Law §310.

Click HERE to access the text of the Commissioner's decision.

May 6, 2021

Sheriffs have the powers accorded police officers under the Criminal Procedure Law but are not mandated to get police officer training [Opinions of the Attorney General 2021-F-1]

The Criminal Procedure Law, granting police officer powers, includes sheriffs in its definition of “police officer,” while the Civil Service Law and General Municipal Law, establishing fitness and training requirements for police officers, exclude sheriffs from their definitions of that term.

In response to a request for a Formal Opinion of the Attorney General, Attorney General Letitia James advised Michael Flaherty, Acting Counsel, Division of Criminal Justice Services [DCJS], that Sheriffs have the powers accorded police officers under the Criminal Procedure Law but are not mandated to get police officer training.

The Attorney General noted that Civil Service Law §58, in defining the term "police officer," excludes a sheriff and under-sheriff, commissioner of police, deputy or assistant commissioner of police, chief of police, deputy or assistant chief of police, or any person having an equivalent title who is appointed or employed to exercise equivalent supervisory authority.

Accordingly, the Attorney General concluded that such officers, including the sheriff, need not meet the age, height, weight, and physical fitness requirements established by DCJS’s Municipal Police Training Council."

The opinion further observes:

"Because a sheriff is deemed a “police officer” by Criminal Procedure Law §1.20(34)(b), he or she is eligible to exercise the powers granted to police officers by the Criminal Procedure Law and the Penal Law.* 

"In summary, while the sheriff is expressly not deemed a “police officer” who needs to satisfy the requirements, including training, of Civil Service Law §58 and General Municipal Law §209-q, he or she must be included in the police officer registry maintained by DCJS and is eligible to exercise the powers granted to police officers by the Criminal Procedure Law and the Penal Law.

"We recognize the anomalous result of a sheriff being a police officer under the Criminal Procedure Law, with the attendant powers, but not being required by General Municipal Law §209-q to receive training as to the exercise of those powers. Indeed, this conclusion differs from the conclusion we have reached with respect to police chiefs in prior opinions, because those police chiefs were not explicitly included in the Criminal Procedure Law’s definition of “police officer.” See Op. Att’y Gen. 2003-1 (village chief of police); Op. Att’y Gen. 85-F12 (municipal police chiefs and commissioners).

"We have been unable to identify the reason for the discrepancy between the powers of a sheriff and the lack of a requirement to obtain training relevant to the use of those powers. We note that many sheriffs will in fact have been trained in previous positions of law enforcement employment. See General Municipal Law §209-q(1)(b) (Municipal Police Training Council certificate valid during continuous service as police officer and for up to 10 years following an interruption of service under certain circumstances).

"The Legislature might wish to consider mandating training for all sheriffs, but absent such legislation, the decision to whether to get training rests with the sheriffs themselves." 

* These powers include possessing an unlicensed firearm, Penal Law §265.20(a)(1)(b); making an arrest without a warrant, Criminal Procedure Law §140.10; using physical or deadly force, if necessary, to effect an arrest or prevent an escape, Criminal Procedure Law §120.80, Penal Law §35.30; executing arrest and search warrants, Criminal Procedure Law §§120.60, 690.25; and stopping and frisking a person in a public place, Criminal Procedure Law §140.50.

Click HERE  to access the full text of the Attorney General's opinion.

 

May 5, 2021

County's False Alarm Law alleged to violate the due process rights of alarm owners

Federal District court dismissed Plaintiff's law suit against the County defendant upon concluding that the County’s False Alarm Law [1] did not violate the due process rights of County alarm owners; [2] did not effectuate an unlawful taking under the Fifth Amendment; and [3] did not violate New York state law.

The United States Court of Appeals, Second Circuit, affirming the district court's ruling, explained:

1. "The false alarm fines for non-residential alarm owners range from $100 to $500 and are not so high as to have a severe economic impact on a business establishment;

2. "The False Alarm Law does not require alarm owners to disable the alarm or to remove the alarm after a false alarm;

3. "Law enforcement does not stop responding to alarms from a particular establishment if it has responded to a false alarm at that establishment in the past;

4. "The investment-backed expectation—that the alarm system protects its establishment in the event of an emergency—has not been frustrated; and

5. "Because the False Alarm Law aims to preserve law enforcement resources for true emergencies rather than false alarms, the cost associated with false alarm fines would be an expected cost of maintaining an alarm system that calls for law enforcement to respond rather than a departure from the expectations a business would have when investing in such an alarm system."

The text of the Circuit Court's decision is posted on the Internet  HERE 


 

 

May 4, 2021

Accessing the New York State Workers' Compensation Board's latest information via social media

Did you know the New York State Workers' Compensation Board [WCB] is available on social media? 

For the latest WCB and NY Paid Family Leave news, events, training, and more, access the WCB via the following social media addresses:

FACEBOOK = @NYSWCB

TWITTER = @NYSWorkersComp

INSTAGRAM = @NYSWorkersCompBoard

UTUBE = www.youtube.com/NewYorkStateWorkersCompensationBoard

 

 

Court rules appointing authority's imposing the disciplinary penalty of termination "shocking to one's sense of fairness" under the circumstances

Petitioner in this CPLR Article 78 proceeding challenged the appointing authority's [Town] dismissing her from her position with the Town after she was found guilty of four charges alleging misconduct and insubordination arising from an incident in which Petitioner "took approximately $181 from the Town's petty cash fund."*

At her Civil Service Law §75 disciplinary hearing Petitioner maintained that she intended only to borrow the money and to replenish the fund later. Addressing this representation, the Appellate Division said "it was undisputed that [Petitioner] left a note in the [Town's] petty cash envelope indicating that she owed money to the fund."

The Appellate Division modified the Town's determination "on the law" and annulled that part of the Town's determination finding Petitioner guilty of charges 1 and 2,  finding charges 1 and 2, which charged her respectively with theft and larceny, was not supported by substantial evidence** and vacated the penalty of termination.

The court explained that "A person "commits larceny when, with intent to deprive another of property or to appropriate the same to him[- or her]self or to a third person, he [or she] wrongfully takes, obtains or withholds such property from an owner thereof." Here, said the Appellate Division, it concluded that Petitioner's actions, "particularly the creation and placement of the note" indicating that she "owed money to the fund" are inconsistent with an intent to deprive or appropriate and annulled that part of the Town's finding Petitioner guilty under charges 1 and 2.

However, said the court, with respect to charges 3 and 4, alleging Petitioner had violated certain Town's policies, Petitioner's contention that the charges 3 and 4 are not supported by substantial evidence of insubordination "is not properly before us because it [was] not raised in the petition."

In light of Petitioner's "32 years of service to the Town, her impending retirement, and the absence of grave moral turpitude," the majority of the court, citing the so-called Pell Doctrine,*** concluded that the penalty of termination was "so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness." 

The matter was then remitted to the Town for imposition of an "appropriate penalty less severe than termination."

* The decision notes that Petitioner contended, and the Town "correctly conceded," imposing a penalty of a six-month suspension without pay would be "illegal."

** Presiding Justice Carni and Justice Curran, dissenting, said that in their view [1] the determination of Petitioner's guilt with respect to charges 1 and 2 was supported by substantial evidence; [2] there was evidence from which a reasonable mind could conclude that Petitioner did not intend to return the funds taken; and [3] the penalty of termination was not "so disproportionate to the offense[s] as to be shocking to one's sense of fairness and thus does not constitute an abuse of discretion as a matter of law."

*** Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222.

Click HERE to access the text of the Appellate Division's ruling.

 

May 3, 2021

If, in the course of collective negotiations, the parties agree to certain terms until "an agreement is reached by the parties," such terms become inoperative when the contemplated agreement between the parties is reached

Supreme Court granted the motion submitted by Board of Education of the City of New York [DOE] to dismiss a hybrid CPLR Article 78 proceeding brought by a Union [UFT] for failure to state a cause of action. The UFT complaint-petition* had alleged:

[1] a breach of contract by DOE; and 

2] DOE's decision not to give retroactive salary increases  to union-member managers that were given to City-wide managerial employees paid pursuant to the Pay Plan for Management Employees was arbitrary and capricious.

The Appellate Division unanimously affirmed the Supreme Court's decision, explaining that the "complete, clear and unambiguous terms of the "Agreement" entered into by the parties require that union-member managers receive the same salary increases received by nonunion managers "[u]ntil an agreement is reached." In other words, as characterized by the court, the Settlement Agreement was operative only as long as collective bargaining negotiations between DOE and the UFT were "ongoing"

The Appellate Division pointed out that UFT's complaint-petition alleged that the nonunion managers received the salary raise and benefits demanded by the Union approximately one year after UFT and DOE entered into the Memorandum of Agreement [MOA]. In the words of the Appellate Division, "[t]hus, the receipt of the salary increase occurred outside the time period contemplated by the Settlement Agreement."

The Appellate Division then opined that UFT's claim that the Settlement Agreement requires the UFT-represented managers to receive retroactive raises granted even after the MOA has taken effect, would inappropriately "add or excise terms or distort the meaning of ... particular words or phrases." Thus, said the court, the breach of contract claim was correctly dismissed by Supreme Court.

Pointing out the UFT's claim that the failure to provide the raise to the union-member managers was arbitrary and capricious was correctly dismissed by the lower court for the reasons stated in the above paragraph, the Appellate Division opined that "DOE determined rationally that the Mayor's Personnel Order, which applied to management-level employees 'in active pay status in a position under the Pay Plan for Management Employees' as of the day before the raise was made retroactive and in active status on the date of this order,' excluded the union-member managers at issue."

* The Appellate Division noted that the complaint-petition alleged that the union-member managers' salaries "were governed by the MOA, not the Pay Plan for Management Employees," when the MOA became effective in November 2017.

Click HERE to access the Appellate Division's decision.

 

May 1, 2021

Audits and reports issued during the week ending April 30, 2021 by the New York State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending April 30, 2021.

Click on the text highlighted in color to access the complete audit report.

MUNICIPAL AUDITS

Brighton Fire Department, Inc. – Board Oversight of Financial Operations (Monroe County) The board did not provide adequate oversight of financial operations. The department lacked detailed financial procedures and the board did not enforce compliance with existing bylaw and policy provisions. They also did not present the statutorily-required annual directors’ report or any interim financial information to the membership. Of 220 disbursements reviewed totaling $545,658, 155 (70 percent) totaling $190,160 did not have documented approval and 93 (42 percent) totaling $92,605 did not have adequate supporting documentation.

Brighton Fire District – Non-Payroll Disbursements (Monroe County) District officials did not ensure non-payroll disbursements were properly procured, approved or adequately supported. Of 97 disbursements tested totaling $1.13 million, seven disbursements totaling $568,648 lacked adequate documentation. Of 19 professional service providers paid $769,931 in 2019, officials did not seek competition or provide documentation that competition was sought for 11 totaling $133,567. The district may have saved about $7,100 for meals and lodging if the United States General Service Administration per diem rates were used. The financial software allowed changes to transaction data without approval and officials did not use available software controls to further safeguard transactions.

Town of Marcy – Justice Court Operations (Oneida County) The justices generally provided adequate oversight of court financial activities and ensured collections were deposited timely and intact and were properly reported and remitted. However, the justices did not document their review of the clerk’s monthly bank reconciliations and accountabilities. They did not ensure the court clerk properly handled or made reasonable efforts to collect payment on 12 pending traffic tickets (30 percent) of 40 tickets tested. The justices also did not ensure the court was using the most up-to-date and secure recordkeeping software.

Town of Milo – Financial Condition (Yates County) The board did not effectively manage the town’s financial condition. More real property taxes and user fees were levied than needed to fund operations. The board did also not adopt realistic budgets for each of its funds from 2017 through 2020, multiyear financial and capital plans or the following policies in fund balance, reserve and budgeting. As of December 31, 2020, the general, highway and water funds unrestricted fund balances were excessive, ranging from 97 percent to 178 percent of 2020 expenditures.

Town of New Windsor – Information Technology (Orange County) Town officials did not ensure information technology systems were adequately secured and protected against unauthorized use, access and loss. Officials did not provide employees with cybersecurity training. They did not have a disaster recovery plan. In addition, officials did not ensure online banking agreements comply with New York State General Municipal Law. Sensitive IT control weaknesses were communicated confidentially to officials.

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Find out how your government money is spent at Open Book New York. Track municipal spending, the state's 180,000 contracts, billions in state payments and public authority data. Visit the Reading Room for contract FOIL requests, bid protest decisions and commonly requested data.

 

April 30, 2021

New York State Comptroller Thomas P. DiNapoli's analysis of New York State's 2021-2022 budget is posted on the Internet

The Enacted State Budget for New York State's Fiscal Year* [SFY] 2021-22 is boosted by a substantial influx of new resources, totaling an estimated $26.7 billion in SFY 2021-22. These resources include federal support, better-than-expected tax collections, revenues from tax increases, and other new resources, resulting in the largest budget in state history at an estimated $212 billion, according to an analysis released on April 29, 2021 by New York State Comptroller Thomas P. DiNapoli.

“The American Rescue Plan provided fiscal relief to the state and local governments, school districts and transit systems at a critical time,” DiNapoli said. “While the Enacted Budget makes important investments in education, health care and other important areas, it’s critical to maintain a long-term view and ensure the state’s spending does not grow to unsustainable levels. Federal support is finite and there were missed opportunities in this budget to ensure the state is well-positioned to weather future emergencies and recessions.”

The American Rescue Plan will give $12.6 billion in fiscal relief to the state and additional funds for other programs to directly benefit New Yorkers. The budget will use $5.5 billion of federal aid in SFY 2021-22 and is required to use the rest by the end of 2024. Revenue actions including increases to top personal income tax rates and corporate franchise tax rates are expected to generate $3.7 billion in SFY 2021-22, growing to $4.8 billion by SFY 2024-25. Increases to the corporate franchise rates expire after 2023 while higher personal income tax rates will expire after 2027.

The new resources provide substantial funding for education and relief programs for struggling New Yorkers and industries. State funding for K-12 public school education is expected to grow by $1.4 billion annually, in addition to federal funding provided directly to districts. New programs, backed mostly by federal funds, include $2.4 billion for rent and homeowner relief, $2.4 billion for child care resources to aid providers and improve subsidies to low-income parents, and $1.6 billion in small business recovery grants and loans, including specific programs for restaurants, cultural establishments, and theater and musical productions.

DiNapoli noted there were also several chances to take steps to improve New York’s long-term fiscal position that were not acted upon. The state continued to defer up to a total of $3.5 billion in Medicaid payments and did not make any new deposits to statutory rainy day reserve funds, which remain at $2.5 billion. Despite a strong cash position, short-term borrowing was also reauthorized. And, for the second year, state leaders circumvented the state’s debt cap for debt to be issued in the coming year—with new state issuance likely to exceed the limits, rendering the cap meaningless.

In the coming weeks, the state Division of Budget will release an updated financial plan for SFY 2021-22 through SFY 2024-25 which will clarify the use and timing of federal aid, spending planned for future years, and the impact of revenue and expense actions on recurring budget gaps. DiNapoli said the financial plan should also provide detail on several risks, including the volatility and temporary nature of new tax revenues and the sustainability of spending on key programs.

*  Click HERE to access the full text of Comptroller DiNapoli's analysis.

 

April 29, 2021

The plaintiff's failure to file a timely notice of claim as required by Education Law §3813(1) will typically result in the granting of a motion to dismiss the complaint

§3813 of the Education Law sets out the procedures to be followed with respect to the filing of claims against the governing body of any school district in New York State and certain state supported schools.

Supreme Court granted the New York City Department of Education's [DOE] motion for summary judgment dismissing the Plaintiffs' action alleging DOE had unlawfully discriminate against them, finding that Plaintiffs had failed to file a timely "notice of claim" with DOE as required by §3813(1) of the Education Law.

Plaintiffs appealed the Supreme Court's ruling. The Appellate Division, however, sustained the lower court's decision, explaining:

1. Plaintiffs' argument relying on Margerum v City of Buffalo, 24 NY3d 721, and its progeny, was "raised improperly for the first time in [Plaintiffs'] reply brief on appeal;"

2. Were Margerum properly before the court, Plaintiffs' reliance on Margerum for the proposition that no notice of claim is required where the complaint alleges violations of the State and City Human Rights Laws is misplaced "where a notice of claim is required pursuant to Education Law §3813(1)"; and

3. The fact that the individually named defendants were not DOE officers is irrelevant with respect to the issue of whether DOE is within the ambit of §3813(1) notice of claim requirement.

Click HERE to access the Appellate Division's decision.

 

April 28, 2021

Seeking the removed of a member of a school board pursuant to the "continuing wrong doctrine"

In the course of a school board meeting a member of the school board held up a campaign postcard being distributed by the school district's teachers’ association which endorsed specific candidates running for seats on the board in the upcoming election and encouraged eligible residents of the school district to vote “Yes” for the budget. The member then stated "just an FYI ... the Teachers Association ... there’s their card ... they are pushing our budget so I’d like to thank them for that.” 

The Petitioner in this appeal to the Commissioner sought the removal of the board member for displaying the Association's postcard and his "FYI" statement, contending that the member had "violated board policy and the prohibition on electoral advocacy described in Matter of Phillips v. Maurer, 67 NY2d 672."

The Commissioner denied the Petitioner's application as untimely, noting that an appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner "for good cause shown."* Here, said the Commissioner, Petitioner served the petition and notice of petition on the board member 120 days after the event giving rise to Petitioner's application. 

Turning to Petitioner's contention that the "continuing wrong doctrine" applied in this instance, the Commissioner explained that the doctrine applies when the ongoing action is itself an unlawful action that results in a continuing violation of the law, such as the unlawful employment of an unqualified individual. Citing a number of earlier decisions of the Commissioner of Education, the Commissioner opined that doctrine does not apply where the specific action being challenged is a single discrete action, inaction or decision and the resulting effects are continuing but are not intrinsically unlawful.

The Commissioner then reminded the "respondents that, although a board of education may disseminate information 'reasonably necessary' to educate and inform voters, it may not use district resources to distribute materials designed to 'exhort the electorate to cast their ballots in support of a particular position advocated by the board,'" citing Matter of Phillips [supra].

Click HERE to access the full text of the Commissioner's decision. 

N.B. The New York State Register dated April 28, 2021, reports the Education Department has filed proposed amendments of Parts 275, 276 and §277.1 of Title 8 NYCRR making certain technical changes and other clarifying amendments to Education Law §310 appeal procedures and requirements.

The text of proposed rule amendment and any required statements and analyses may be obtained from: Kirti Goswami, NYS Education Department, Office of Counsel, 89 Washington Avenue, Room 112 EB, Albany, NY, 12234, (518) 474-6400.

Data, views or arguments may be submitted to Julia Patane, Esq., NYS Education Department, Office of Counsel, 89 Washington Avenue, Room 112 EB, Albany, NY, 12234,  (518) 474- 6400.

Public comment will be received until  60 days after publication of this notice.

 

 

April 27, 2021

Defendants seeking summary judgment have the initial burden of demonstrating that the motion should be granted

A New York City police detective [Plaintiff] serving in the Police Department's Emergency Services Unit severely injured his eye while attempting to change the carbon dioxide cartridge of an animal tranquilizer gun. Plaintiff sought to recover damages for personal injuries against, among others, the City of New York and its Police Department, [City Defendants] under color of General Municipal Law §205-e,* and against NASCO, the distributor of the gun, alleging negligence and strict products liability predicated upon defective design and failure to provide adequate warnings.

The NASCO and the City Defendants appealed Supreme Court rejecting, in whole or in part, their various motions seeking summary judgment dismissing Plaintiff's claims. 

Addressing NASCO's and the City Defendants' respective appeals of Supreme Court's denial of their respective motions for summary judgment, the Appellate Division, after sustaining various elements of the Supreme Court's decision, noted the several failures of the defendants to meet their respective "initial burdens" that might otherwise have resulted in Supreme Court's granting all, or some, of their respective motions seeking summary judgment.

The Appellate Division decision provides a number of examples of the defendants failing to meet their respective "initial burdens" in its decision such as noting "NASCO's expert ... opined in mere conclusory fashion that the tranquilizer gun was 'appropriately designed' and 'did not ... contain any explanation of the gun's design, or any discussion of industry standards or costs.'" This, said the court, "was insufficient to affirmatively demonstrate, prima facie, that the gun was reasonably safe for its intended use."

The Appellate Division's decision is instructive as it identifies various elements that, if presented by NASCO and the City Defendants in their pleadings before the Supreme Court, might have had a different result, in whole or in part, with respect to their respective motions for summary judgment. 

* Subdivision 3 of §205-e provides "This section shall be deemed to provide a right of action regardless of whether the injury or death is caused by the violation of a provision which codifies a common-law duty and regardless of whether the injury or death is caused by the violation of a provision prohibiting activities or conditions which increase the dangers inherent in the work of any officer, member, agent or employee of any police department."

Click HERE to access full text of the Appellate Division's decision in this appeal.

 

April 26, 2021

Public official sued for allegedly unlawfully blocking an individual from accessing the Official's public Facebook page

A public official [Official] used his Facebook's "Public Page" in his official capacity to communicate information to, and receive comments from, the public on various issues of local and state politics and policy.

Official, however, blocked an individual's [Plaintiff] access to his Public Page after Plaintiff posted accusations it condoned allegedly “flagrant racism” and “ugly comments” posted by other Facebook users on Official's Public Page. Plaintiff then initiated an action in federal district court against Official seeking "declaratory and injunctive relief and for monetary damages."  

The United States Circuit Court of Appeals affirmed a federal district court's dismissal of Plaintiff's action as moot as Official had expressly represented in two sworn declarations before the district court that “he does not intend to ban or block [Plaintiff's] access" to his Public Page again at any time in the future and had, in fact, "unblocked [Plaintiff] ... 'long before' [Official] moved to dismiss [Plaintiff's] claims."

Citing Lamar Advert. of Penn, LLC v. Town of Orchard Park, 356 F.3d 365, the Circuit Court explained "[w]hen a defendant voluntarily ceases conduct that a plaintiff alleges to be unlawful, the plaintiff’s case usually becomes moot if  'the defendant can demonstrate that (1) there is no reasonable expectation that the alleged violation will recur and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.'"  

Agreeing with the district court that on this record "it cannot reasonably be expected that [Official] will attempt to block [Plaintiff] from [his] Public Page in the future" as Official had filed two sworn declarations before the district court that “he does not intend to ban or block [Plaintiff's] access to the [Official's] Facebook page again at any time in the future,” the Circuit Court affirmed the district court's judgment.  

Click HERE to access the text of the Circuit Court's decision.


April 24, 2021

Audits and reports released by the New York State Comptroller during the week ending April 23, 2021

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending April 23, 2021.

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

State and New York City Departments and Agencies

Department of Health (DOH): Patient Safety Center Activities and Handling of Revenues (2019-S-15) 

DOH has generally met the primary objectives of the Patient Safety Center (PSC) regarding data reporting, collection, and analysis and the dissemination of health care information, including public access to such information. However, auditors found a lack of formal guidance governing certain enforcement and recordkeeping practices. DOH also needs to improve its oversight of PSC revenues and related activities to ensure that the PSC account is receiving all revenue due.

 

Department of Labor (DOL) : Selected Wage Investigation Procedures (2019-S-6) 

Auditors reviewed wage investigation activities for a sample of 150 cases opened between April 1, 2016 and November 29, 2019). For 69 of the 150 cases, investigators did not make contact with the employer within 60 days of creating a wage investigation case, as recommended in its procedures. In 55 of the 69 cases, the first contact did not occur for more than 120 days, including 13 cases for which contact didn’t occur until after more than 360 days had passed. Auditors identified 24 cases with no documented investigation activities for significant periods of time, including two cases with gaps of more than two years. For nine of 56 cases reviewed that DOL’s system indicated were closed and paid, auditors could not determine whether the 976 claimants in these cases received recovered wages totaling $413,582.

 

New York City Department of Education (DOE): Health, Safety, and Accessibility in District 75 Schools (2019-N-7) 

DOE could improve its oversight to ensure that children attending some District 75 schools are not exposed to unsafe and unhealthy conditions. Conditions identified included: peeling paint in certain areas, including classrooms; lack of the required supply of epinephrine pens to be used in case of allergic reaction emergencies: disabled door alarms; unsafe conditions on playgrounds; and potentially toxic cleaning materials in unlocked cabinets in classrooms and hallways.

 

New York City Department of Finance (DOF): Selected Aspects of Collecting Outstanding Amounts Due for Parking Violations (2019-N-2)

Auditors determined that DOF did not maximize collection of fines and fees owed for parking violations, especially for vehicle owners residing outside NYC. The city has large outstanding balances due from summonses for parking violations, and DOF has not always taken timely action to collect the fines and fees.

 

Metropolitan Transportation Authority Capital Construction: All-Agency Contract Evaluation System (2019-S-14) 

MTA Capital Construction did not always follow proper procedures when monitoring and evaluating contractor and consultant performance to uniformly obtain and record reliable information on performance. As a result, it did not fully benefit from the established processes. Documentation was not consistently maintained to support projects rated as satisfactory, and, in some cases, either the work performed or the information in the file did not appear to support or contradicted the ratings.

 

Office for People With Developmental Disabilities (OPWDD): Compliance With Jonathan’s Law (Follow-Up) (2020-F-26) 

An audit issued in November 2019 found OPWDD did not implement processes to effectively monitor whether facilities are complying with Jonathan’s Law, enacted to expand parents’, guardians’, and other qualified persons’ access to records relating to incidents involving family members residing in facilities operated, licensed, or certified by OPWDD and other state agencies. While facilities established practices for notifying qualified persons within the required time frame, 11 percent of the incidents reviewed lacked support that the requisite notification was made within the required time frames and 7 percent lacked support that a report had been issued within the required time frames. Facilities did not always provide records to qualified persons when requested or did not provide them within 21 days of the request or the conclusion of an investigation. In a follow-up, auditors found OPWDD officials made limited progress in addressing the problems identified in the initial audit report.

 

MUNICIPAL AUDITS

Town of Orange – Former Highway Superintendent’s Records (Schuyler County)  

Auditors found the former superintendent intentionally destroyed highway records. Auditors determined the former superintendent submitted five inaccurate claims to the New York State Consolidated Local Street and Highway Improvement Program that resulted in the town receiving $86,000 more than it was entitled to. Based on the audit and investigation, the former superintendent was arrested and charged with second degree obstructing governmental administration for destroying town records. In December 2020, the superintendent pled guilty to attempted obstruction of governmental administration and was sentenced to a conditional discharge and given a $500 fine.

 

Plattekill Public Library – Procurement and Investment of Funds (Ulster County)  

The board did not always comply with its procurement and investment policies, or with statutory requirements relating to investments. The board did not ensure required quotes were obtained for the purchase of security cameras. The board also did not adopt a procurement policy that included professional services. As a result, officials did not seek competition for six professional service providers receiving payments totaling $24,009. In addition, the board did not adhere to its investment policy by limiting the investment decisions to the library’s committee and by ensuring funds were properly invested.

 

Village of Suffern – Budget Review (Rockland County)  

Auditors found that the significant revenue and expenditure projections in the proposed budget are reasonable. However, auditors estimated the total 2021-22 collections for sewer rent revenue will be approximately $2.25 million, which is $572,000 less than budgeted. The village’s tentative budget includes a tax levy of $12,238,192, which is $40,928 above the limit established by law.

Town of Tully – Justice Court Operations (Onondaga County) The justices generally provided adequate oversight of court financial activities and ensured collections were deposited timely and intact and were properly reported and remitted. However, the clerks did not ensure that some missing or deleted cashbook entries had a proper audit trail and documentation. In addition, the town board did not perform an annual audit of the justices’ records, as required.

 

SCHOOL DISTRICT AUDITS

Phelps-Clifton Springs Central School District – Fuel Purchasing (Seneca County and Wayne County)  

During the 30-month audit period, auditors found the district could have reduced its fuel expenditures by at least $124,428. The savings would have covered the district’s average gasoline and diesel fuel purchases for almost 11 months. Auditors determined the district could have saved at least $49,448 by using the Office of General Services contract price. In addition, officials should not have paid $74,980 to a local gas station. The erroneous payments comprised $57,415 in taxes and $17,565 in finance charges and other fees.

OTHER REPORTS

LOCAL SALES TAX COLLECTIONS

Despite decline compared to 2020, collections show improvement over the past three quarters.

Sales tax revenue for local governments in New York State declined by 3.9 percent in the first quarter compared to the same period last year, according to State Comptroller Thomas P. DiNapoli. Sales tax collections from January through March totaled $4.3 billion, which was $173 million less than the first quarter of 2020.

“Although collections remain down compared to last year, there are signs of improvement as the state continues to recover from the economic devastation caused by the COVID-19 pandemic,” DiNapoli said. “Local officials are cautioned to monitor their budgets closely because the pandemic’s trajectory and its effect on our state’s fiscal recovery remain uncertain.”

This is the fourth quarter in a row that overall collections have dropped statewide year-over-year. From April 2020 through March 2021, statewide local collections are down by 11.8 percent or $2.2 billion.

Despite the first-quarter decline, collections have shown a gradual improvement over the past three quarters, especially compared with the 27.1 percent decline seen from April to June 2020, when many businesses were shut down during the first wave of the COVID-19 pandemic and many people stayed home to avoid infection.

Collections for the first quarter of 2021 increased compared to the first quarter of 2020 in every region outside of New York City, with increases ranging from 2.4 percent in the Southern Tier to 9.8 percent in the North Country. Four regions – the Capital District, Central New York, Long Island and the North Country – experienced stronger growth than they did in the first quarter of last year, which predated the pandemic.

Sales tax collections in New York City during the first three months of 2021 were down 13.2 percent from the same period in 2020, which was still better than the previous three quarters.

Outside of New York City, all but two counties – Albany and Schuyler – experienced an increase in collections in the first quarter of 2021 compared the same three-month period in 2020. 

Table

Monthly and Quarterly Local Sales Tax Collections by Region

Report

First Quarter 2021 Local Sales Taxes Down 3.9 Percent; New York City’s Declines Soften While the Rest of the State Sees Growth

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