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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+.

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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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 23, 2021

Alert from GOVTECH TODAY dated April 23, 2021

GOVTECH TODAY advises governments to take note that "Bad Internet Bots Are On The Rise." 

A web robot, robot or simply bot, is a software application that runs automated tasks [scripts] over the Internet. GOVTECH TODAY reports that new data from Imperva, an IT security company, suggests government websites may be at higher risk of being targeted by “bad bots” as the COVID-19 pandemic continues. Experts, however, say "there’s plenty agencies can do to be prepared." READ MORE here.

Registration Coordinator Lauren Fahndrich stated: 

"As shown by recent breaches, hackers are increasingly launching more sophisticated and targeted attacks that are becoming more difficult to detect.

"To combat these threats, it’s critical for state and local governments to add some new tools to their cybersecurity toolkits. Watch now to learn more about the evolving cybersecurity landscape and how cyber threat intelligence, an incident response retainer and other tactics can help you defend against and respond to the next big attack.

"This complimentary, one hour webinar is available on-demand, and you are welcome to share this invitation with any colleagues that may benefit from the information!"

For additional information, contact:

Lauren Fahndrich
Registration Coordinator
Government Technology | A division of e.Republic
https://webinars.govtech.com/
800-940-6039 ext. 1378
lfahndrich@govtech.com


Failure to fully comply with the relevant rules and regulations may prove fatal to filing a viable administrative appeal of an adverse administrative decision

The Workers' Compensation Board declined to review of a decision by a Workers' Compensation Law Judge on the grounds that the self-insured employer [Employer] failed to comply with the controlling provisions of its rules and regulations.

A correction officer [Claimant] assaulted by an inmate filed a claim for workers' compensation benefits for an injury to his jaw and for "post-concussive syndrome and photophobia." A Workers' Compensation Law Judge [WCLJ) amended the claim to include an injury to the Claimant's head and found, among other things, that Claimant "is totally industrially disabled based upon his work-related injuries and legal blindness."

The Employer filed an application for review of the WCLJ's determination by the Workers' Compensation Board, challenging, among other things, the WCLJ's finding that [Claimant was] totally industrially disabled. The Board denied the application for Board review of the WCLJ's ruling because of Employer did not answer a question on the application form it had submitted seeking such review. Employer next appealed the Board's rejection of its application for review.

The Appellate Division affirm the Board's decision, noting that it had "consistently recognized that 'the Board may adopt reasonable rules consistent with and supplemental to the provisions of the Workers' Compensation Law, and the Chair of the Board may make reasonable regulations consistent with the provisions thereof.'"

The court explained that the regulations require, in relevant part, that "an application to the Board for administrative review of a decision by a [WCLJ] shall be in the format as prescribed by the Chair [and] . . . must be filled out completely",* noting that "[w]here, as here, a party who is represented by counsel fails to comply with the formatting, completion and service submission requirements set forth by the Board, the Board may, in its discretion, deny an application for review."

Further, opined the court, Employer's reliance on "its responses to other questions on the application for Board review does not cure the defective response to question number 15," the specific question which the Board found was not answered.

* See 12 NYCRR 300.13[b]

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

 

April 22, 2021

Elements to be considered in evaluating justifications advanced for rejecting a Freedom of Information Law request filed with a governmental entity subject it provisions

In reviewing an appeal from a Supreme Court decision which denied the petition filed by Plaintiff seeking to compel the New York City Dept. of Investigation [Investigations] to disclose its entire case file and all documents related to a certain investigation under color of the Freedom of Information Law [FOIL],* the Appellate Division vacated the Supreme Court's ruling, in part, and remanded the matter for further proceedings as to the remaining records responsive to the FOIL request before a different Justice, and otherwise affirmed the Supreme Court's ruling, without costs.

In particular, the Appellate Division found:

1. Investigations failed to meet its burden of establishing that "disclosure of any records responsive to Petitioner's FOIL request would 'interfere with law enforcement investigations or judicial proceedings', which exemption 'ceases to apply after enforcement investigations and any ensuing judicial proceedings have run their course.';

2. " Investigations failed to establish that disclosure would 'identify a confidential source or disclose confidential information relating to a criminal investigation ... [and] in the absence of any evidence that [any] person received an express or implied promise of confidentiality'; and

3. Investigations' assertion that "disclosure would reveal nonroutine criminal investigative techniques or procedures is conclusory."

As to certain email messages offered by Plaintiff in support of its Article 78 petition, the Appellate Division, citing Matter of Gould, 89 NY2d at 277, opined that they "are covered by the inter-agency or intra-agency materials exemption " of Public Officers Law §87[2][g] as they amount to "opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making".

However, said the Appellate Division, "the applicability of this exemption to any other responsive records cannot be determined on this record in the absence of in camera review.  

The court than remanded the matter to Supreme Court for a de novo determination, after an in camera inspection, of the applicability of the inter-agency or intra-agency materials exemption and any other exemptions properly raised by Investigations.

* Public Officers Law §§84-90

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

 

April 21, 2021

Employee absent on workers' compensation leave served with disciplinary charges alleging he was able to perform the essential functions of his job while on such leave

A school district [Employer] adopted the finding a §75 disciplinary action hearing officer holding that the employee [Plaintiff] was guilty of certain charges of misconduct and the hearing officer's recommendation that the Petitioner be terminated from his position. Petitioner appealed the Employer's decision but the Appellate Division sustained the Employer's action and dismissed Plaintiff's Article 78 petition on the merits, with costs.

Petitioner, a motor equipment operator, sustained injuries on August 11 when the ride-on lawn mower he was using while at work overturned. Petitioner obtained a doctor's recommendation that he not return to work until September 8.  After Plaintiff returned to work on September 8, the Employer filed fourteen Civil Service Law §75 disciplinary charges against the Petitioner alleging misconduct that occurred between August 12, and September 8, which charges the Appellate Division characterized as alleging the Plaintiff was "out of work on workers' compensation even though he was able to perform the essential functions of his job as a motor equipment operator."  

The Appellate Division, explaining that a court's review of an administrative determination in an employee disciplinary proceeding made after a hearing pursuant to Civil Service Law §75 is limited to considering whether the determination was supported by substantial evidence, said where there is conflicting evidence or different inferences may be drawn from the evidence, "the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]" and the courts may not weigh the evidence or reject the choice made by the appointing authority where the evidence is conflicting and room for choice exists, noting the Court of Appeals decision in Berenhaus v Ward, 70 NY2d 436.

As any credibility issues were resolved by the hearing officer, the Appellate Division said it found "no basis upon which to disturb the determination that the [Plaintiff] was guilty of the misconduct alleged, which was supported by substantial evidence."

Noting that "A court may set aside an administrative penalty only if it is so disproportionate to the offense as to be shocking to one's sense of fairness", the Appellate Division opined that "[u]nder the circumstances here, the penalty of termination of the [Plaintiff's] employment was not so disproportionate to the offense committed as to be shocking to one's sense of fairness," citing Matter of 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 full text of the Appellate Division's decision.

___________________

A Reasonable Disciplinary Penalty Under the Circumstances - A 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. For more information click on http://booklocker.com/books/7401.html  


April 20, 2021

The changing number of justices on the Supreme Court of the United States

As discussions concerning increasing the number of justices serving on the United States Supreme Court are currently a topic of continuing interest, it might be well to note although the Judiciary Act of 1789 set the number of justices of the Supreme Court at six, a chief justice and five associate justices, in 1807 Congress amended the law and increased the number of justices to seven.

The next change occurred in 1837 when the number of justices was increased to nine while in 1863 the number became 10 justices. In 1866 Congress enacted the Judicial Circuits Act, reducing the number of justices to seven in number, only to raise the number of justices to nine in 1869, which number has survived to date.

Although then President Franklin Delano Roosevelt sought to persuade Congress to enact legislation authorizing the appointment of additional justices to the high court in the event a justice, upon attaining the age 70, declined to resign or retire, and limited the total number of justices serving on the Supreme Court to 15 members, Congress elected not to do so.

See, also, https://publicpersonnellaw.blogspot.com/2018/10/setting-number-of-justices-on-united.html

An educator's previously unblemished employment record deemed insufficient to mitigate imposing a lesser penalty than dismissal from the position after being found guilty of charges of incompetence and misconduct

An educator [Plaintiff] was found guilty of disciplinary charges served upon her by her employer, the New York City Department of Education [Employer] after a hearing. The arbitrator found the Plaintiff guilty of disciplinary charges filed against her alleging incompetence and misconduct and imposed the penalty of dismissal.  

Plaintiff initiated a CPLR Article 75 proceeding challenging her dismissal from her position and sought a court order vacating the arbitration award which sustained disciplinary charges filed against her alleging Plaintiff was guilty of incompetence and misconduct. 

Supreme Court granted the Employer's motion to dismiss Plaintiff's Article 75 petition seeking to vacate an arbitration award, which ruling Plaintiff appealed to the Appellate Division.

The Appellate Division unanimously affirmed the Supreme Court's decision. The court observed that the arbitrator's "determination sustaining charges of incompetency is amply supported by the evidence." Further, said the court, the evidence also showed that Plaintiff was "unwilling ... to implement suggestions and constructive criticism of her ineffective teaching methods. Likewise, said the court, the portions of the arbitrator's decision addressing various charges of misconduct were "in accord with due process, rationally based and supported by adequate evidence."

As to the penalty imposed, dismissal from her position, the Appellate Division opined that notwithstanding Plaintiff's "previously unblemished record ... her identified pedagogical shortcomings, lack of improvement, and student safety issues inherent in two of the sustained misconduct charges, the penalty of termination does not shock one's sense of fairness", citing Matter of Ferraro v Farina, 156 AD3d 549, leave to appeal denied, 32 NY3d 902.

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

 

April 19, 2021

The Medical Board's recommendation that an application for performance of duty disability retirement benefits be denied is conclusive if it is supported by some credible evidence and is not arbitrary or capricious

Supreme Court annulled a determination by the Board of Trustees of the New York City Employees' Retirement System [Trustees] denying the application of a retired New York City correction officer, [Petitioner] for performance of duty disability retirement benefits based on its Medical Board's recommendation and directed that the Petitioner be granted performance of duty disability retirement benefits retroactive to March 11, 2016.

The Appellate Division reversed the Supreme Court's ruling, on the law, with costs, and confirmed the Trustees' determination and dismissed Petitioner's CPLR Article 78 proceeding on the merits.

The Appellate Division explained that the Trustees' Medical Board's determination is conclusive if it is supported by some credible evidence and is not arbitrary or capricious, citing Matter of Solomonoff v New York City Employees' Retirement Sys., 188 AD3d 700. Further, opined the court, in the event there is conflicting medical evidence involved in the proceeding, the "resolution of a conflict in the medical evidence is solely within the province of the Medical Board.

Noting the decision in Topkin v Board of Educ. of City School Dist. of N.Y., 121 AD2d at 531, the Appellate Division said:

1] "The board is privileged to accept the medical reports of its own expert over those of a claimant"

2. "A mere conflict in opinion among physicians is not a ground for disturbing a determination; and

[3] "Courts may not 'substitute [their] own judgment for that of the Medical Board,' citing Matter of Borenstein v New York City Employees' Retirement Sys., 88 NY2d at 761.

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

 

April 17, 2021

Law practice management software

Nicole Black, a Rochester, New York attorney, has posted an item on her law blog, Sui Generis, providing a "round up" of law practice management software, litigation fact management software, ABA Techshow and more.

Click HERE to access her post.

 

Audits and reports issued by the New York State Comptroller during the week ending April 16, 2021

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending April 16, 2021.

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

MUNICIPAL AUDITS

Village of Shoreham – Board Oversight and Justice Court (Suffolk County)  Auditors found the board did not properly oversee the village’s financial operations and the Justice Court did not properly account for court funds. Auditors found 22 claims totaling $132,819 were paid without support, duplicate receipts were rarely issued and not all cash was deposited in a timely manner. The board also did not annually audit the clerk-treasurer's or court's records and reports. For the court, 70 tickets could not be accounted for, duplicate receipts were not always issued and bank reconciliations and accountability analyses were not complete or reconciled. In addition, receipts totaling $3,435 were collected and deposited but payments to the clerk-treasurer and reported to the Justice Court Fund only amounted to $3,360.

SCHOOL DISTRICT AUDITS

Hudson City School District – Information Technology (Columbia County) District officials did not adequately secure and protect its information technology (IT) systems against unauthorized use, access and loss. The board and district officials also did not adopt adequate IT policies or a disaster recovery plan. Auditors found questionable internet use on four of six computers tested. School officials also did not disable 123 of the 462 enabled network accounts auditors examined. These 123 user accounts were not needed and included generic and former employee accounts. In addition, sensitive IT control weaknesses were communicated confidentially to officials.

 

Royalton-Hartland Central School District – Information Technology Contingency Planning (Genesee County, Niagara County and Orleans County) The board and district officials have not developed and adopted a comprehensive written information technology (IT) contingency plan. The district pays $10,500 for central site infrastructure support, which includes a disaster recovery plan template, a key component of an IT contingency plan. Although the district paid for a template, officials did not obtain it. Without a comprehensive written IT contingency plan in place that is properly distributed to all responsible parties and periodically tested for efficacy, district officials have less assurance that employees will react quickly and effectively to maintain business continuity. As a result, important financial and other data could be lost, or suffer a disruption to operations.


Westhampton Beach Union Free School District – Extra-Classroom Activity Funds (Suffolk County) The extra-classroom activity clubs did not maintain adequate records. Therefore, auditors could not determine whether all funds received and disbursed were properly accounted for. Deposits were not always supported by school deposit forms or accurately completed bank deposit slips and activity logs.

 

Wyandanch Union Free School District – Budget Review (Suffolk County) Auditors found that the significant revenue and expenditure projections in the proposed budget are reasonable. District officials did implement the recommendations in Comptroller DiNapoli’s July 2020 budget review letter. The district's proposed budget complies with the tax levy limit because it includes a tax levy of $22,922,337, which is within the limits established by law.

 

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