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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+.

February 27, 2021

Municipal audits issued during the week ending February 26, 2021

New York State Comptroller Thomas P. DiNapoli announced the following municipal audits were issued during the week ending February 26, 2021.

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

MUNICIPAL AUDITS

Danby Fire District – Claims Audit (Tomkins County) The board did not adequately audit claims. They authorized some unallowable claims to be paid prior to the audit. The district made 14 disbursements totaling more than $9,200 that should not have been paid prior to board approval. The district did not follow its credit card usage policy requiring documentation for four credit card purchases totaling almost $1,000.

 

Delhi Joint Fire District – Cash Receipts and Disbursements (Delaware County) The board ensured that $746,000 in cash receipts were properly deposited, recorded and disbursed. However, the board did not adequately audit claims and a cash receipts log was not maintained. The treasurer’s records were not reconciled to ensure that all receipts were deposited. In addition, $4,700 in fees were waived without evidence of board approval.

 

Sea Breeze Fire District – Board Oversight (Monroe County) The board did not provide adequate oversight of the district’s financial operations, nor comply with mandatory training requirements. The board also did not actively manage district assets and ensure the treasurer maintained basic accounting records including adequate bank and debt obligation records. The board failed to comply with legal mandates to perform an annual audit, file financial reports or audit and approve claims. As a result, the board could not effectively monitor the district’s operations and financial condition.

 

Town of Worth – Audit Follow-Up Letter (Jefferson County) Auditors conducted a follow up review of the town’s progress in implementing recommendations from a prior audit on the town’s financial operations. Auditors found little progress had been made. Of the nine audit recommendations, two recommendations were partially implemented and seven recommendations were not implemented.

 

February 26, 2021

Boosting economic development in a post-pandemic economy

Government Technology, Oracle, and leaders from the city of Vallejo, California, recently hosted a webinar titled How the City of Vallejo Boosted Economic Development in a Post-Pandemic Economy.*

The webinar focused on how the city recently adopted a new system that enables it to collect fees and manage planning entitlement, building permits and code enforcement processes more efficiently. Residents of the city can now conduct business with the city electronically, which has reduced call volumes and processing backlogs and improved the city’s ability to collect vital fees and accelerate critical planning and development processes.

Government Technology's Registration Coordinator Erica Lindley [elindley@govtech.com] invites readers to listen to the free webinar recording here.

* This information is posted pro bono.

Standing to submit an appeal pursuant to Education Law §310 to the Commissioner of Education

The first issue considered in this appeal to the Commission of Education concerning the termination of a probationary teacher addressed a procedural matter: persons or entities having standing to file an Education Law §310 appeal for consideration by the Commissioner of Education. 

To the extent the petitioner [Educator] in this Education Law §310 appeal sought to advance claims on behalf of her co-teacher, the Commissioner ruled that such claims must be dismissed for lack of standing. Citing Appeal of Abitbol, 57 Ed Dept Rep, and other decisions of the Commissioner of Education, the Commissioner noted that an individual may not maintain a §310 appeal "unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights."  

In other words, only persons and entities who are directly affected by the act or omission being appealed have standing to bring the appeal. Accordingly, Educator could only ask the Commissioner to consider claims of being "retaliated against and harassed" that she, herself, alleges she had suffered.

Turning to the merits of Educator's appeal, the decision notes that Education Law §2573(1)(a), provides that the New York City Department of Education [DOE] may discontinue the services of a probationary teacher “at any time and for any reason, unless the teacher establishes that the termination was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith.”* Further, in an appeal to the Commissioner the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.

The Commissioner dismissed Educator's appeal, explaining that:

1. Educator had neither alleged nor proven that her discontinuance of probationary employment was for a constitutionally impermissible reason or that it violated any statute; and

2. Although Educator attributed several inappropriate or inflammatory statements to her principal, Educator offered "no proof in support of these contentions beyond her own assertions."

Citing Matter of Hawkins v. FariƱa, 171 AD3d 624, the Commissioner opined that Educator "failed to carry her burden of proving that [DOE] discontinued her probationary employment for a constitutionally impermissible purpose, in violation of a statute, or in bad faith.

* See Matter of Frasier v. Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763.

Click HERE to access this decision of the Commissioner of Education.

 

February 25, 2021

An employee found guilty of excessive absences may be terminated where such unreliability is shown to have a disruptive and burdensome impact on the employer

The Director of Security [Petitioner] employed by the School District [District] had repeatedly been warned, in person and in writing, that the number and frequency of his absences was unacceptably high in consideration of his position and that his failure to improve his attendance could lead to the termination of his employment.

Petitioner subsequently was served with disciplinary charges pursuant to §75 of the Civil Service Law alleging that he was guilty of "excessive absenteeism". The parties had reached a tentative settlement of these disciplinary charges when Petitioner again absented himself from work without notice. Ultimately a §75 disciplinary hearing was conducted and the hearing officer found Petitioner guilty of "certain charges of incompetence and insubordination." The District adopted the hearing officer's findings and terminated Petitioner's employment.

Petitioner commenced a proceeding pursuant to CPLR Article 78 seeking judicial review the District's determination. The Appellate Division, however, sustained the District's decision, explaining that:

1. In employee disciplinary cases, judicial review of factual findings made after a hearing pursuant to Civil Service Law §75 is limited to consideration of whether that determination was supported by substantial evidence;

2. Courts may not weigh the evidence or reject the choice made by an administrative agency where the evidence is conflicting and room for choice exists;

3. A municipal employee may be terminated for incompetence and misconduct due to excessive absences caused by physical incapacity after a disciplinary hearing; and

4. The fact that the employee may have had "a 'valid' reason for each one of the individual absences is irrelevant to the ultimate issue of whether his [or her] unreliability and its disruptive and burdensome effect on the employer rendered him [or her] incompetent to continue his [or her] employment."*

Finding substantial evidence in the record supporting the hearing officer's determination that the Petitioner was guilty of incompetence and insubordination as charged and that the record showed that Petitioner "had repeatedly been warned ... his absences was unacceptably high in light of his position as head of security for the district," the Appellate Division, citing Matter of Waldren v Town of Islip, 6 NY3d 735, opined that under the circumstances the penalty of termination was not so disproportionate to the offense as to be shocking to one's sense of fairness.

The Appellate Division then confirmed the District's determination and dismissed the Petitioner's appeal on the merits.

* In Wallis v. Sandy Creek Cent. School Dist. Bd. of Educ., 79 A.D.3d 1813, the  termination of the employee was upheld where the employee had received numerous warnings about her excessive absenteeism, her absentee rate was over 60% for a period of a year and one-half and she had been found to be insubordinate.

Click HERE to access the Appellate Division's decision in the instant appeal.

 

February 24, 2021

A former member of the New York City Council found to have accepted valuable gifts and services from an organization doing business with the City fined $15,000

The New York City Conflicts of Interest Board [COIB] adopted a report by New York City Office of Administrative Trials and Hearings Administrative Law Judge Kara J. Miller in which Judge Miller recommended imposing a fine of $15,000 on a former member [Respondent] of the New York City Council [Council].

ALJ Miller determined that Respondent had accepted valuable gifts and services on 18 occasions from a not-for-profit housing organization [NFP] doing business with the City of New York while serving as a member of the Council.

The NFP received $841,000 in discretionary funding from the Council which funding was sponsored by the Respondent. The ALJ held that some of these funds were used for trips and a dinner cruise around Manhattan for senior citizens living in the Respondent's district. The Respondent, while a Council member, and members of his family, participated in these trips and accepted free accommodations at a luxury resort as well as free tickets to a dinner cruise in violation of the City Conflicts of Interest Law.* The ALJ had determined that such attendance in these events did not serve a government purpose.

The COIB agreed with Judge Miller’s findings that the free hotel accommodations and dinner cruise tickets constituted valuable gifts and that Respondent's contention that his family members were serving as volunteers at the senior events was pretextual.

* The New York City Charter §2604(b)(5) states, in relevant part: “No public servant shall accept any valuable gift, as defined by rule of the board, from any person or firm which such public servant knows is or intends to become engaged in business dealings with the city,” while COIB Rule §1-01(a) defines a valuable gift to include “any gift to a public servant which has a value of $50.00 or more, whether in the form of money, service, loan, travel, entertainment, hospitality, thing or promise, or in any other form.”

Click HERE to access Judge Miller's findings and recommendation in this matter.

 

February 23, 2021

Webinar to address the SolarWinds data breach scheduled to be held March 2, 2021

On December 13, 2020, SolarWinds, a company that provides IT monitoring and management tools to the public sector, acknowledged that hackers had inserted malware into a service that provided software updates for its Orion platform, a suite of products used by many federal agencies. As a result, malicious code may have been pushed to as many as 18,000 customers, raising concerns among IT administrators across all levels of government in their ongoing battle against an evolvingly complex network of malware, cyber-extortionists, and cybersecurity risks.

What do we know about the SolarWinds data breach, and what lessons can IT leaders learn to help them fortify their digital properties?

On Tuesday, March 2, join CIVIC-PLUS' guests from its cybersecurity partner, SilverSky, for an in-depth analysis of the SolarWinds hack and best practices to keep your data secure.

Click here to Register Now

Extensive personal involvement by the appointing authority in a §75 disciplinary proceeding requires the appointing authority to recuse himself or herself from the decision-making process

The Appointing Authority [Respondent] in this litigation filed nine charges against a staff member  [Petitioner] pursuant to Civil Service Law §75 alleging, among other things, that Petitioner had improperly used her position to her financial benefit.

The §75 Hearing Officer found Petitioner guilty if eight of the nine disciplinary charges filed against her and, with respect to the penalty to be imposed, recommended that Petitioner be terminated from her position. The Respondent accepted the Hearing Officer's findings and recommendation and dismissed Petitioner from her position with the agency. Petitioner then commenced a CPLR Article 78 proceeding challenging the Respondent's terminating her employment.

Noting that the record before it indicated that the Respondent had initiated the charges against Petitioner, appointed the §75 Hearing Officer and had testified as a witness at the §75 disciplinary hearing, the Appellate Division, citing Matter of Ashe v Town Bd. of the Town of Crown Point, N.Y., 97 AD3d 1022, opined that in view of Respondent's "extensive personal involvement" she should have disqualified herself from the decision-making aspects of the disciplinary action at large.

In the words of the court, "Although involvement in the disciplinary process does not automatically require recusal ... individuals who are personally or extensively involved in the disciplinary process should disqualify themselves from reviewing the recommendations of a Hearing Officer and from acting on the charges."

Accordingly, the Appellate Division annulled the Respondent's decision and remanded the matter "for further proceedings not inconsistent with this Court's decision."

A similar situation underlies another Appellate Division decision, summarized in NYPPL at https://publicpersonnellaw.blogspot.com/2010/07/individual-terminated-based-on.html

The County Board [Board] filed disciplinary charges against one its employees [Supervisor] alleging misconduct and incompetence based on complaints of sexual harassment filed by a number of women supervised by Supervisor.

Found guilty of the charges, the Board dismissed Supervisor from his position. The Appellate Division, however, annulled the determination. The court said that one of the Board members had “improperly participated in the final determination” and there was no evidence “that the members of the Board had an opportunity to review the [disciplinary hearing] record” before making its decision.

The Appellate Division returned the matter to the Board for a re-determination, without the participation of the errant Board Member.

Click HERE  to access the Appellate Division's instant decision.

 

February 22, 2021

Revealing a public employee's home ZIP code held to be an unwarranted invasion of personal privacy for the purposes of New York State's Freedom of Information Law

Petitioner [Plaintiff] filed a Freedom of Information Law [FOIL] request with the New York State Department of Civil Service [DCS] seeking a document containing the (1) full name, (2) home zip code, (3) hire date, (4) labor organization, (5) bargaining unit and (6) payroll deduction type of all state employees in Classified Service.* DCS supplied Plaintiff with all the requested data except employees' home zip codes and payroll deduction type, explaining that DCS:

1. does not maintain data concerning payroll deduction type; and

2. withheld the employee's home zip codes pursuant to Public Officers Law §§87(2)(b) and 89(7) and Governor Cuomo's Executive Order No. 183.** 

Following an unsuccessful appeal to DCS's FOIL appeals officer, Plaintiff initiated a CPLR Article 78 proceeding challenging the partial denial of his FOIL request and seeking a court order requiring DCS to disclose the requested zip codes. Supreme Court, among other things, concluded that neither the Public Officers Law nor Executive Order 8 No. 183 barred release of the zip codes, and granted so much of the petition as requested such data. DCS appealed the Supreme Court's ruling.

The Appellate Division, noting that "FOIL generally requires government agencies to make available for public inspection and copying all records subject to a number of exemptions" and that the "exemptions set forth in the statute are interpreted narrowly in order to effect the purpose of the statutory scheme," then addressed DCS's refusal to disclose the zip codes of the employees requested by Plaintiff.

The Court said the DCS had satisfied its statutory obligation to fully explain its determination in the administrative appeal by stating that the "disclosure of name and zip code pairings would invade employee privacy to an unwarranted degree, citing statutes that protect personal identifying information of the public generally and state workers in particular."  The Appellate Division then observed that DCS's burden was to articulate a "particularized and specific justification" for its denial but this obligation "did not arise until [Plaintiff] commenced this CPLR Article 78 proceeding."

In its effort to meet this burden DCS cited two statutory exemptions: one prohibiting release of records protected by a state or federal statute, specifically the statute providing that FOIL does not require the disclosure of, among other things, home addresses of public employees and a second permitting agencies to "deny access to records or portions thereof that ... if disclosed would constitute an unwarranted invasion of personal privacy."

The court opined that in "our current, highly technological environment, using a zip code or other partial address information directly matched with an individual's name could readily facilitate access to that person's complete home address." Thus, said the Appellate Division, the "FOIL rule that we interpret exemptions from disclosure narrowly" does not require that courts disregard the "commonsense understanding of legislative intent." Conceding "the somewhat novel nature" of its determination - that a zip code is the functional equivalent of an address for FOIL purpose," the Appellate Division said that it found that exemption applicable in the instant situation.

In considering this alternate grounds -- whether disclosing a home zip code paired with an employee's name would constitute "an unwarranted invasion of personal privacy under the provisions of  Public Officers Law §89(2)]", the court explained that this privacy exception includes eight categories that are per se unwarranted invasions of privacy and then noted that unwarranted invasions of privacy "shall not be limited to" those listed (see Public Officers Law § 89[2] [b]).

In the absence of proof establishing the applicability of one of the specifically-enumerated categories, the Appellate Division said courts "evaluate whether disclosure would constitute an unwarranted invasion of personal privacy 'by balancing the privacy interests at stake against the public interest in disclosure of the information'."

On one side of the equation is the public interest in disclosure of government records while the other side of the equation is the interests of state employees in not having their home zip codes, along with their names and job information, released to members of the public.

Citing Massaro v New York State Thruway Authority, 111 AD3d at 1003, the court said "An unwarranted invasion of personal privacy has been characterized as that which would be offensive and objectionable to a reasonable person of ordinary sensibilities" Here DCS "particularly and specifically justified its denial" when it stated that the correlation of names and home zip codes invaded employee privacy, and offered to release a summary or de-identified employee zip codes upon receipt of a new FOIL request. Plaintiff, however, declined to accept this offer tendered by DCS.

Observing the personal privacy exemption "would have little meaning if [individuals or] entities could circumvent [it] by gaining access to only the names [of public employees] and then linking them to a home address, the Appellate Division concluded that the policy concerns underlying the personal privacy exemption are no less implicated under that scenario," noting that it had earlier affirmed a denial of disclosure where the requested "records, when combined with other readily available information, ... could identify or lead to the identification of" information protected under a FOIL exemption," rejecting "(e)ven the partial disclosure of an address" because it could be used, with other information," to identify an individual.

As to special protections for state employee records, the Appellate Division concluded that Legislature's enactment of Public Officers Law §89(7) indicates its desire to protect public employees from harassment at home and here the release of home zip codes "would constitute an unwarranted invasion of personal privacy under these circumstances."

Finding that DCS had met its burden of proving that the requested zip codes are exempt from disclosure under FOIL, the Appellate Division ruled that Supreme Court erred in ordering the disclosure of such data and reversed so much the lower court's order that required DCS to disclose the zip code data requested by Plaintiff.

* §40 of the New York State Civil Service Law provides that the Classified Service "shall comprise all offices and positions not included in the unclassified service. The offices and positions in the classified service of the state and of its civil divisions shall be divided into four classes, to be designated as the exempt class, the non-competitive class, the labor class, and the competitive class."

** See 9 NYCRR 8.183, Protecting the Personal Privacy of Public Sector Workers.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2021/2021_01113.htm


 

February 20, 2021

Municipal and school district audits issued during the week ending February 19, 2021

New York State Comptroller Thomas P. DiNapoli announced the following municipal and school district audits were issued during the week ending February 19, 2021.

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

MUNICIPAL AUDITS

New York State Comptroller Thomas P. DiNapoli today announced the following local government and school district audits have been issued.

 

Village of Red Hook – Information Technology (Dutchess County) Officials did not adequately secure and protect the village’s information technology (IT) systems against unauthorized use, access and loss. The board also did not adopt required or sufficient IT policies, provide users with IT security awareness training, or develop a disaster recovery plan. Officials were unaware that employees were accessing websites for nonbusiness purposes because they did not routinely monitor employee Internet use. The IT consultant’s responsibilities were not defined and officials did not have a formal contract with the consultant. In addition, sensitive IT control weaknesses were communicated confidentially to officials.

 

Village of Pittsford – Audit Follow-Up Letter (Monroe County) In a previous report issued in July 21, 2017, auditors identified problems with the board’s oversight over the village’s financial operations. When auditors revisited the village in August 2020 to review progress, they found limited corrective actions had occurred. Of the seven audit recommendations, one recommendation was fully implemented, four recommendations were partially implemented and two recommendations were not implemented.

 SCHOOL DISTRICT AUDITS

Honeoye Falls Lima Central School District – Access Controls (Livingston County, Monroe County and Ontario County)   District officials did not ensure user access controls were appropriate and secure. Officials did not adopt key information technology (IT) security policies, resulting in increased risk that data, hardware and software may be lost or damaged by inappropriate use or access. Officials also did not regularly review network user accounts and permissions to determine whether they were appropriate or needed to be disabled.

In addition, sensitive IT control weaknesses were communicated confidentially to officials. Due to the COVID-19 pandemic, with the district‘s increased reliance on a remote learning environment and administrative operations, protecting IT assets is critical.

 

February 19, 2021

The authority of an administrative agency's to adopt regulations to implement legislation

Regulations of the Office of Victim Services [OVS], as amended in January 2016, limited attorneys' fee awards for crime victim claimants to the costs incurred on applications for administrative reconsideration or appeal and on judicial review.* The question presented to the Court of Appeals [Court] in this appeal was whether these regulations, as amended, were in conflict with the authorizing statute** or were otherwise irrational.  

Citing Consolidated Edison Co. of New York v Department of Environmental Conservation, 71 NY2d 186, the Court said that administrative agencies have "all the powers expressly delegated to [them] by the Legislature" and are "permitted to adopt regulations that go beyond the text of [their] enabling legislation, so long as those regulations are consistent with the statutory language and underlying purpose." 

Although "an administrative agency may not, in the exercise of [its] rule-making authority engage in broad-based public policy determinations ... [t]he cornerstone of administrative law is ... the principle that the Legislature may declare its will, and after fixing a primary standard, endow administrative agencies with the power to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation."

Further, the Court said it has long recognized that "where flexibility is required to enable an administrative agency to adapt to changing conditions, it is sufficient if the Legislature confers broad power upon the agency to fulfill the policy goals embodied in the statute, leaving it up to the agency itself to promulgate the necessary regulatory details."

The standard for judicial review of those regulatory details "'is whether the regulation has a rational basis and is not unreasonable, arbitrary or capricious." Where the legislature has left to an agency's discretion the determination of "what specific standards and procedures are most suitable to accomplish the legislative goals," the agency's rule making powers, "[i]f reasonably designed to further the regulatory scheme, ... cannot be disturbed by the courts unless the provision is arbitrary, illegal or runs afoul of the enabling legislation or constitutional limits ... regardless of [the court's] assessment of the 'wisdom' of the agency's approach."

The Court explained that the regulations as amended by OVS "are fully consistent with the governing statutory language and purpose," and thus are "within OVS's authority, and rational." Notwithstanding the Petitioners' argument and the dissent's reasoning to the contrary, the Court concluded that the statute, when read as a whole, grants OVS the authority to determine whether attorneys' fees are "reasonable."

Noting that "there may be other valid ways in which OVS could have defined 'reasonable' attorneys' fees," the definition in the amended regulations is rational and the application of those regulations to deny the Petitioners' fee applications "was not arbitrary and capricious."

Finding that the regulations as amended by OVS were consistent with the statutory language and OVS had "appl[ied] its special expertise in a particular field to interpret [that] statutory language," the Court held that OVS' determination was entitled to deference and, reversing the decision of the Appellate Division, reinstated the judgement of the Supreme Court.

* See 9 NYCRR §§525.3, 525.9

** Executive Law Article 22,

The text of the decision of the Court of Appeals is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2021/2021_01091.htm


February 18, 2021

Redaction of portions of a personnel record may be used to avoid an invasion of privacy in responding to a Freedom of Information Law request

In a proceeding pursuant to CPLR Article 78 to compel the production of certain records pursuant to the Freedom of Information Law [FOIL]* the Petitioner [Plaintiff] submitted a FOIL request for certain records to the New York City Fire Department [FDNY].

FDNY had responded to Plaintiff's FOIL request, providing certain records and withholding others. FDNY withheld the records identified in Plaintiff's FOIL request that it contended concerned requests for religious accommodations and the determinations made thereon, and accommodations from the FDNY dress requirements. FDNY had withheld those records on the grounds that:

 [1] Releasing such records would be an unwarranted invasion of personal privacy within the meaning of Public Officers Law §87(2)(b); and 

[2] The records withheld were inter-agency materials exempt by Public Officers Law §87(2)(g).

Supreme Court granted Plaintiff's petition in part and Plaintiff appealed, seeking the FDNY records that FDNY was permitted to withhold pursuant to the court's order.

The Appellate Division, indicating that FOIL provides the public with broad "access to the records of government" explained that "An agency must 'make available for public inspection and copying all records' unless it can claim a specific exemption to disclosure".**  

Further, said the court, the exemptions "are to be narrowly interpreted so that the public is granted maximum access to the records of government" as FOIL is based on a presumption of access to the records*** and the agency seeking to prevent disclosure "carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access," citing Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562.

An agency may deny access to records or portions thereof "to prevent unwarranted invasions of personal privacy" and to this end Public Officers Law Public Officers Law §89[2][b][v] provides a nonexhaustive list of categories of information that would constitute an unwarranted invasion of personal privacy if disclosed, including "disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency." However, "disclosure shall not be construed to constitute an unwarranted invasion of personal privacy "when identifying details are deleted."

In this action, ruled that the Appellate Division, FDNY failed to sustain its burden of proving that the personal privacy exemption applied to the records sought since it failed to establish that the identifying details could not be redacted so as to not constitute an unwarranted invasion of personal privacy. The court found the FDNY's conclusory assertions that the records fall within the exemption were insufficient to meet its burden of proving that the statutory exemption applies.  FDNY, opined the Appellate Division "should have produced the requested records, redacting whatever portions are necessary to safeguard the identities of the individuals who sought the accommodation, and leaving nonidentifying information intact.

The court also held that FDNY also failed to establish that the exemption for inter-agency materials applied, since the agency determinations sought were final on the accommodation requests and therefore not subject to the exemption.

Accordingly, the Appellate Division concluded that Supreme Court should have granted those branches of the petition which sought to compel disclosure of the documents sought in Plaintiff's FOIL requests that were the subject of this appeal.

* New York State Public Officers Law Article 6.

** See Matter of Data Tree, LLC v Romaine, 9 NY3d 454.

*** 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 otherwise fall within the ambit of the several exceptions to disclosure permitted by FOIL. Examples of limiting the  release of public records by statute: Education Law §1127 - Confidentiality of records and §33.13 of the Mental Hygiene Law - Confidentiality of clinical records.

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

 

February 17, 2021

Special Holiday Waiver Memoranda of Understanding for the Security Supervisors Negotiating Unit, the Security Services Negotiating Unit, and the State's Agency Police Services Negotiating Unit

The New York State Department of Civil Service has published an "Attendance and Leave Bulletin" addressing Special Holiday Waiver Memoranda of Understanding for the Security Supervisors Unit (SSpU), the Security Services Unit (SSU), and the Agency Police Services Unit (APSU)

Text of Advisory Memorandum, Memorandum 2021-01 are posted at: https://www.cs.ny.gov/attendance_leave/AdvMemo21-01.cfm

If you wish to print Advisory Memorandum 2021-01 there is a version in PDF  format at:
https://www.cs.ny.gov/attendance_leave/am21-01.pdf

To view earlier Attendance and Leave bulletins issued by the Department, visit: https://www.cs.ny.gov/attendance_leave/index.cfm

 

The job description of the applicant's position may have a significant role in evaluating a claim seeking accidental disability retirement benefits

The Court Officer [Petitioner] bring this CPLR Article 78 action was assigned to a criminal court. In the course of Petitioner's escorting an inmate who had become unruly during his sentencing hearing from the courtroom to a downstairs detention area, the inmate attempted to go back upstairs to the courtroom. Petitioner and two other court officers took action to restrain him. 

Petitioner was injured in the course of his efforts to restrain the inmate. He did not returned to work and applied for accidental disability retirement benefits, citing injuries to his neck, right arm, right wrist and both shoulders. Plaintiff's application was denied on the ground that the incident did not constitute an accident within the meaning of Retirement and Social Security Law [RSSL] §605-a, which decision was subsequently sustained by a Hearing Officer. Ultimately the Comptroller adopted the Hearing Officer's findings and decision and Petitioner filed a CPLR Article 78 proceeding challenging the Comptroller's determination.

The job description for the title "court officer" contains a list of "typical duties" that includes providing security in the courtroom, guarding criminal defendants while they are in the courtroom and escorting them to and from the detention area, removing disruptive individuals from the courtroom and physically restraining unruly individuals. This job description for "court officer" proved to be a key element in the Appellate Division's review of a determination of the New York State Comptroller denying a court officer's [Petitioner] application for accidental disability retirement benefits.

Point out that the applicant for disability retirement benefits bore the burden of establishing that his disability arose from an accident within the meaning of the RSSL, the Appellate Division explained that the Comptroller's determination denying such benefits will be upheld if supported by substantial evidence.* 

Although the reports of the incident submitted to the responsible human resources administrator indicated that Petitioner was injured when he and other officers were restraining an inmate attempting to return to the courtroom, Petitioner testified that he was not attempting to restrain the inmate when he was injured but that, instead, he was "a passive victim of a sudden and unexpected assault."

Here the Comptroller had credited the earlier written accounts of the incident over Petitioner's contradictory testimony at the hearing. The Appellate Division said that it would defer to the Comptroller's "credibility assessment." 

Further, said the court, as there was substantial evidence supporting the Comptroller's finding that Petitioner's injury arose out of a risk that was foreseeable and inherent in the performance of his regular employment duties rather than an accident within the meaning of RSSL, "it will not be disturbed."

* For purposes of the Retirement and Social Security Law, an accident is defined as "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact." An injury that results from the performance of ordinary employment duties and is a risk inherent in such job duties is not considered accidental"

Click HERE to access the Appellate Division's decision.

 

 

February 16, 2021

Westchester sisters sentenced for stealing deceased mother's pension after pleading guilty to felony grand larceny

State Comptroller Thomas P. DiNapoli and Westchester County District Attorney Miriam E. Rocah announced the sentencing of Annette Bigelow, 61, and Mary Nash, 59, who hid their mother’s death to pocket nearly $22,000 from the New York State and Local Employees Retirement System, which DiNapoli administers, from 2013 to 2015.

The two daughters pleaded guilty to felony grand larceny in September, 2020. They were sentenced to a three-year conditional discharge and ordered to pay full restitution of $22,000.

“Annette Bigelow and Mary Nash hid their mother’s death and tried to cheat the state retirement system,” DiNapoli said. “Now they have been brought to justice and will have to repay the $22,000 they stole. I thank Westchester County District Attorney Rocah’s office for aggressively pursuing this case.”

“Our office is committed to pursuing wrongdoing in Westchester, whether the victim is a person or an entity like the state retirement system,” Rocah said. “Theft like this from the pension system is ultimately stealing from New York taxpayers, and we are glad to work with the Office of the State Comptroller to help ensure that public funds are safeguarded.”

###

State Comptroller DiNapoli is committed to fighting public corruption and encourages the public to help fight fraud and abuse. Allegations of fraud involving taxpayer money may be submitted to the Comptroller by calling a toll-free Fraud Hotline at 1-888-672-4555, by mailing a complaint to the Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236, or by emailing a complaint to investigations@osc.ny.gov.

 

February 13, 2021

Municipal and school district audits issued during the week ending February 12, 2021

New York State Comptroller Thomas P. DiNapoli announced the following municipal and school district audits were issued during the week ending February 11, 2021.

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

MUNICIPAL AUDITS

Islip Fire District – Capital Assets (Suffolk County) District officials did not maintain accurate and consistent capital asset records to ensure district assets were monitored and safeguarded. District inventory records did not list 45 of 50 selected assets totaling $36,809. In addition, district officials were unable to locate seven of 50 assets totaling $7,360. Scuba gear worth $119,523 was not adequately monitored or safeguarded.

Islip Fire District – Disbursements (Suffolk County) The board made an inappropriate payment for medical expenditures totaling $21,000. The board also approved payment for 118 purchases totaling $38,563 made on district credit cards that did not have sufficient supporting documentation. In addition, the board approved payment for 58 fuel credit card transactions, consisting of 1,181 gallons of fuel totaling $2,551 that were not adequately supported. They did not always enforce the adopted travel policy when approving $125,028 in travel expenditures. District officials made 107 purchases totaling $163,233 without an approved purchase order prior to the purchase being made.

Kingston Housing Authority – Board Oversight (Ulster County) The board did not provide adequate oversight of authority operations. As a result, budgets were not entered into the financial system and financial transactions were not properly captured. Adequate oversight of disbursements, bank transfers and bank reconciliations were not achieved. Auditors determined $6.43 million in disbursements and bank transfers were made without review or approval and $1,035 in management fees were incorrectly billed. Financial system access was also not properly administered.

Town of Duanesburg – Financial Records and Reports (Schenectady County) The supervisor did not ensure that the town’s accounting records and reports were complete, accurate, up-to-date or timely. The town’s accounting records were also not reliable. Auditors determined $590,880 in revenue and $55,182 in expenditures were not recorded. The accounting records’ cash balances were overstated by about $3 million as of Dec. 31, 2019. In addition, bank reconciliations were not performed. The town board did not always receive financial reports, and reports it received were not accurate. 

 

SCHOOL DISTRICT AUDITS

Lyncourt Central School District – Information Technology (Onondaga County) District officials did not adequately manage network user accounts or develop and adopt a written disaster recovery plan. As a result, the district has an increased risk that it could lose important data and suffer serious interruption in operations. District officials should have disabled 17 of the 113 network user accounts auditors examined. The 17 user accounts were unneeded and included generic, shared and former employee accounts. District officials should have also revoked permissions for eight of the 12 network user accounts with administrative permissions because the permissions were unneeded. Sensitive information technology control weaknesses were communicated confidentially to officials.

 

February 12, 2021

An employer's duty to prevent an employee from committing suicide

This decision by the Appellate Division states that the Plaintiff in this action alleged  that the New York City Police Department [NYPD]  had knowledge of the state of its employee's [the Deceased] mental health and, instead of accommodating the Deceased's disability, assigned him to a position that would precipitate his death.  

Citing Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, after setting out the events leading to the litigation, the decision concludes as follows:

 "In short, the NYPD's 'failure to reasonably accommodate [the Deceased's] disability as soon as [it knew] of that condition is the very societal ill which the relevant anti-discrimination statutes were designed to combat.

Continuing, the Appellate Division opined that "[t]he statutes recognize the employer's failure in that regard to be particularly invidious because it forces the worker either to quit his or her job in order to preserve the worker's health or else to continue working without adequate protective measures and then succumb to a debilitating impairment* ... [s]adly, here, [the deceased] succumbed to a debilitating impairment before he was properly accommodated.

The court, however, ruled that it was "unable to grant [the Deceased] any relief because [his] estate failed to invoke the very statute that was enacted to protect him."

* See Jacobsen at 843-844.

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


February 11, 2021

Qualified privilege may be claimed in defending statements made for a supervisory purpose in an employment context alleged to be defamatory

Plaintiff in this action alleged that his former employer defamed him in the warning letter by issuing the letter of warning and directing Plaintiff to take anti-harassment training.

In the words of the Appellate Division, Plaintiff contends that the letter, "essentially finding" that Plaintiff had violated the employer's policy, is defamatory." However, said the court, to the extent the claim is based on the letter in general, it fails to state a cause of action for defamation.

The court opined that Plaintiff paraphrased the letter in his complaint and "misstates its contents, as the letter expressly found that [Plaintiff] had not violated employer's policies."

The Appellate Division also noted that Plaintiff failed to adequately plead publication of the alleged defamatory letter. He states only that the letter, though addressed to him, was "published to the rest of the Administration." This vague and undefined phrase does not meet the particularity requirements for person and time.

Plaintiff's reliance on that part of the letter which states that the employer found Plaintiff's conduct was "unprofessional and inappropriate" and evinced a "lack of appropriate judgment," is adequately particularized, at least as to its content, being a direct and accurate quote from the letter.

In any event, the Appellate Division, citing Foster v Churchill, 87 NY2d 744, concluded  that a qualified privilege attaches to statements made for a supervisory purpose in an employment context. As the letter was written by the employer in the context of an investigation into workplace conduct, the court opined that the employer was protected under the defense of qualified privilege.

Click HERE to access the Appellate Division's decision.

 

February 10, 2021

An employer may take an adverse employment action against an employee barred by law so long the employer has demonstrated an independent basis for the action

A probationary teacher [Plaintiff] observed a teacher providing unauthorized assistance to a student. Plaintiff contended that she immediately reported the incident, and it is undisputed that she "first put her allegations in writing in a letter dated April 19, 2013."

Plaintiff subsequently received four unsatisfactory lesson observation reports, two letters of misconduct and then received an unsatisfactory rating (U-rating) for the school year. The New York City Department of Education [DOE] did not give Plaintiff a certificate of satisfactory completion of probation and terminated her employment. Her administrative appeal was denied by a divided panel.

Plaintiff initiate a hybrid CPLR Article 78/plenary action challenging DOE's decision in Supreme Court. Ultimately the Appellate Division dismissed Plaintiff's action in its entirety "on the law."

The Appellate Division explained that DOE's decision to discontinue Plaintiff's probation and terminate her employment was based on the annual U-rating, which in turn was based on four unsatisfactory observation reports and two misconduct letters. These, said the court, provide ample evidence to support the conclusion that Plaintiff's performance was unsatisfactory, and thereby establish, for purposes of reviewing Plaintiff's Article 78 action, that Plaintiff's termination was done in good faith.

Turning to Plaintiff's seeking a court order annulling the U-rating and unsatisfactory observation reports as pretexts for a retaliatory discharge, the Appellate Division opined that this effort was unavailing as the U-rating was supported by the observation reports and misconduct letters, each of which recited first-hand observations made by the Assistant Principal and Principal and the unsatisfactory reports were "rationally based in the record."

Addressing Plaintiff's second cause of action under Civil Service Law, §75-b the Appellate Division found that Plaintiff had made a prima facie case by showing that:

1. She received numerous adverse employment actions in the form of unsatisfactory reports and ultimately loss of license and termination;

2. She disclosed what appeared to be an illegal action by a fellow teacher; and

3. The temporal connection between Plaintiff's reporting "the January 23, 2013 incident  and the negative employment actions she suffered beginning in early March, suffices to establish her prima facie case on causation."

That said, the Appellate Division pointed out that an appointing authority may nonetheless initiate an adverse employment action against an employee so long the employer has an "independent basis for the action."

In the words of the Appellate Division, "Here, as discussed, [DOE] had ample independent bases for their actions against [Plaintiff], in the form of the well-documented unsatisfactory reports and a corresponding U-rating for the year. Nor is there any evidence that [DOE's] actions were pretexts for retaliation, or that [DOE] would not have taken the same actions against [Plaintiff] had she not reported the alleged teacher misconduct" and dismissed Plaintiff's second cause of action alleging the DOE had violated Civil Service Law §75-b.

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

 

 


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