A public university’s decisions concerning the skills, expertise, and academic perspectives of applicants control when making academic appointments

A State University of New York [SUNY] adjunct professor [Plaintiff]  attributing his failure to advance within his department to his colleagues’ unfavorable view of the methodology he employed in his scholarship, brought an action in federal district court. 

Plaintiff asserted three causes of action: 

(1) A claim for damages pursuant to 42 U.S.C. §1983 for violat[ing] Plaintiff’s right of freedom of speech while acting under color of state law;

(2) A claim pursuant to §1983 for injunctive relief in the form of a court order to “prevent ongoing discrimination against Keynesian economists” in violation of the First Amendment; and 

(3) An age discrimination claim under New York State’s Human Rights Law.

A federal district court granted SUNY's motion for summary judgment and Plaintiff appealed. The U.S. Court of Appeals, Second Circuit, noting that it "disagreed with much of the district court’s reasoning," nonetheless sustained the lower court's ultimate disposition of the case.

Citing Garcetti v. Ceballos, 547 U.S. 410, the Circuit Court opined that Plaintiff's First Amendment claims fail because "under Pickering v. Bd. of Educ., 391 U.S. 563 (1968), a public university’s interest in deciding for itself what skills, expertise, and academic perspectives it wishes to prioritize in its hiring and staffing decisions outweighs [Plaintiff's] asserted interest in competing for academic positions unencumbered by university decision-makers’ assessment of his academic speech."

Affirming the federal district court's judgment, the Circuit Court said "If the Supreme Court’s (and this Court’s) enthusiastic endorsement of the First Amendment principles supporting a university’s academic freedom is to be given any practical bite, decision-makers within a university must be permitted to consider the content of an aspiring faculty member’s academic speech, and to make judgments informed by their own scholarly views, when making academic appointments."

Click HERE to access the Second Circuits decision posted on the Internet.

 

A final determination and the exhaustion of administrative remedies are typically essential to obtaining judicial review of the administrative determination

In Rosado-Ciriello, et al, [Plaintiffs] v Yonkers City School District, et al, [District], the Appellate Division considered a proceeding pursuant to CPLR Article 78 to review a determination of the District, and to compel the District to consider "telework" as a viable work accommodation for the Plaintiffs' members in the collective bargaining unit.

Supreme Court had granted the District's cross-motion, in effect denying the Plaintiffs petition and dismissed the proceeding. Plaintiffs appealed the Supreme Court's ruling.

The Appellate Division noted "a proceeding under [Article 78] shall not be used to challenge [an administrative] determination ... which is not final," explaining that an administrative determination must be final, and thus justiciable, i.e., ripe "for judicial review."

Quoting Matter of Village of Kiryas Joel v County of Orange, 181 AD3d at 685 [internal quotation marks omitted], the Appellate Division explained "[ripeness] is a justiciability doctrine designed to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties". Further, said the court, an administrative determination becomes "final and binding" when two requirements are met: "completeness (finality) of the determination and exhaustion of administrative remedies."

Finding that the alleged determination was not final and binding "because it did not inflict concrete harm" and further steps, including the submission of applications with supporting documents, were available to the Plaintiffs who were seeking the "telework accommodations," the Appellate Division held that Supreme Court "properly granted the [District's] cross-motion," in effect, denying the Plaintiffs' petition, and dismissing the Article 78 proceeding.

The exhaustion of administrative remedies rule, however, "is not inflexible and need not be followed where an agency's action is challenged as either unconstitutional or wholly beyond its grant of power" [see Watergate II Apartments v Buffalo Sewer, 46 NY2d 52] or where it is alleged that the administrative agency or process followed by the administrative agency violates the individual's constitutional rights to due process [see Levine v Board of Education, 173 A.D.2d 619]."

Further, as the decision in Walton v New York State Department of Correctional Servs., 25 AD3d 999, modified, 8 NY3d at 191, notes, "an individual is not required to exhaust the available administrative remedy where such action would constitute an exercise in futility." 

In deciding the point at which petitioner's administrative remedies are exhausted, "courts must take a pragmatic approach and, when it is plain that 'resort to an administrative remedy would be futile' ... an Article 78 proceeding should be held ripe, and the statute of limitations will begin to run."

Click HERE to access the Appellate Division's decision posted on the Internet.

 

New York State Public Personnel Law e-books

The Discipline Book - For information and access to a free excerpt of the material presented in this e-book, Click HERE.

A Reasonable Disciplinary Penalty - For information and access to a free excerpt of the material presented in this e-book, Click HERE .

The Layoff, Preferred List and Reinstatement Manual - for information and access to a free excerpt of the material presented in this e-book, Click HERE .

Disability Leave for fire, police and other public sector personnel - for information and access to a free excerpt of the material presented in this e-book, Click HERE .

 

Seeking a court order in the nature of mandamus to compel a public officer or agency to perform a specified act

Among the several ancient writs which haves survived through the eons is the Writ of Mandamus.* Mandamus is sought in an effort to compel a governmental entity or officer to perform a ministerial duty.

In contrast, the Writ cannot be used to compel an act that involve[s] an exercise of judgment or discretion on the part of the public officer or entity. Citing Matter of Mensch v Planning Bd. of the Vil. of Warwick, 189 AD3d 1245, the Appellate Division explained that a discretionary act involves the exercise of reasoned judgment which could typically produce different acceptable results whereas "a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result".

In this action the Appellate Division held that the Petitioners seeking a court order in the nature of mandamus "failed to establish that there existed a clear legal right to the relief sought." Rather, opined the court, Petitioners "sought to compel conduct involving the application of the discretion and judgment of the [Employer]."

Accordingly, the Appellate Division concluded that the remedy of mandamus was not available to the Petitioners.

* Other surviving ancient common law writs include the Writ of Prohibition, issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction"; the Writ of Injunction - a judicial order preventing a public official from performing an act; the Writ of Certiorari, compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the Writ of “Quo Warranto” [by what authority].

GOVTECH TODAY Newsletter item

On August 28, 2023 GOVTECH TODAY posted the item listed below on the Internet. Click on the text in color to access the report.

"Bringing live translation to public meetings".

 

From the Blogs: The Art of Filing an Appeal

Addresses the critical components of a compelling appeal, from gathering evidence to structuring your arguments. "Tips and best practices to make your appeal stand out." 

Posted on the Internet by the Law Firm of Kevin P. Sheerin, Esq.

 Continue Reading…

School bus transportation contractor sues for payment for contract services the school district claimed were not required for a four month period

We Transport, Inc. [Plaintiff] commenced this action against the Westbury Union Free School District [Westbury] seeking to recover damages for an alleged breach of contract.

Plaintiff, a school bus transportation contractor for Westbury, alleged Westbury breached a contract between the parties by refusing to pay for transportation services that the Plaintiff alleged it stood ready to provide during the months of March, April, May, and June of the 2020 but which services were neither required by the school district nor provided to it by Plaintiff.

Westbury moved to dismiss the complaint. Supreme Court denied Westbury's motion and Westbury appealed the court's ruling.

Citing Shah v Exxis, Inc., 138 AD3d 970, the Appellate Division explained that "[on] a motion pursuant to CPLR §3211(a)(7) to dismiss [an action] for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory".

The Appellate Division then ruled that Supreme Court should have granted that branch of the Westbury's motion to dismiss the cause of action alleging breach of contract, noting that the essential elements of a breach of contract cause of action are: [1] the existence of a contract; [2] the plaintiff's performance under the contract; [3] the defendant's breach of that contract; and [4] resulting damages.

The Appellate Division opined that to state a cause of action to recover damages for a breach of contract, the plaintiff's allegations must identify the provision of the contract that it contends was breached.

Finding Plaintiff's complaint "failed to specify the provision of the parties' contract that was allegedly breached" and no provision was identified that would permit the Plaintiff to recover payment from Westbury in exchange for "being available to provide transportation services", the Appellate Division reversed the Supreme Court's order "insofar as appealed from" and granted Westbury's motion pursuant to CPLR §3211(a)(7) to dismiss Plaintiff's complaint.

Click HERE to access the Appellate Division's decision posted on the Internet.

 

New York City's failure to pay for certain pre-shift and post-shift work it required certain of its employees to perform held a willful violation of the federal Fair Labor Standards Act

In Perry, et al, v The City of New York, et al, Docket No. 21-2095, decided August 25, 2023, the United States Court of Appeals for the Second Circuit, said:

"In this collective action, a group of 2,519 EMTs and paramedics allege that their employer, the City of New York, willfully violated the Fair Labor Standards Act by requiring them to perform work before and after their shifts without paying them for that work unless the plaintiffs specifically requested overtime compensation from the City.

"A jury agreed following a twelve-day trial, and the U.S. District Court for the Southern District of New York (Broderick, J.) entered a $17.78 million judgment against the City.

"The City now appeals, raising four arguments:

"(1) the jury’s liability verdict cannot stand because plaintiffs failed to request overtime pay for the work at issue;

"(2) the jury’s willfulness finding was not supported by the evidence;

"(3) due to an erroneous instruction, the jury failed to make a necessary factual finding regarding the calculation of damages; and

"(4) the district court incorrectly forbade the jury from considering whether one component of the plaintiffs’ post-shift work was de minimis and therefore non-compensable.

'The City accordingly asks that we reverse the jury’s verdict or remand for a new trial on damages."

The Second Circuit declined to do so and instead affirmed the district court's decision "in toto."

Click HERE to access the text of the Second Circuit's decision posted on the Internet.

 

 

Attorneys invited to consider a career in public service with the State of New York

The New York State Department of Civil Service invites attorneys to consider a career in public service with the State of New York.

For information about current employment opportunities click HERE.

Municipal and school audits released by the New York State Comptroller

On August 24, 2023, New York State Comptroller Thomas P. DiNapoli announced the following local government and school audits were issued.

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

 

Town of Homer: Non-Payroll Disbursements (Cortland County)

The board and supervisor did not provide adequate oversight of non-payroll disbursements. As a result, the town made duplicate payments totaling $79,806, and has an increased risk that errors or irregularities could occur and remain undetected and uncorrected. Auditors found the board and supervisor did not, as required,  segregate duties or implement compensating controls relating to non-payroll disbursements; did not, as required, establish procedures to detect and prevent duplicate payments from occurring; or did not, as required, conduct or ensure an annual audit of the supervisor’s records and reports was performed.

 

Chatham Central School District – Financial Management (Columbia County)

The board and district officials did not properly manage fund balance and reserves. The board and district officials’ consistent practice of appropriating fund balance that is not needed and maintaining unreasonable reserve balances circumvents the statutory limit on surplus fund balance and lacks transparency. The district annually appropriated over $1.3 million of fund balance they did not need or use to finance operations; therefore, taxpayers were taxed more than necessary. The district, on average, annually over-estimated appropriations by $3.2 million (9.9%) and maintained four reserves totaling $6.6 million without demonstrating they were reasonably funded.

 

Blind Brook-Rye Union Free School District – Capital Project Change Orders (Westchester County)

The board and district officials did not ensure that all project change orders were submitted as required to the State Education Department (SED) for approval. As a result, officials created a risk that SED could reduce the district’s building aid reimbursement for all unapproved work. For the 151 change orders reviewed totaling about $3.8 million: 122 (81%) totaling approximately $2.7 million were not submitted to SED, as required. In addition, six change orders totaling $155,173 were approved by the commissioner for only $74,002 and the assistant superintendent was not aware that they were approved and had no explanation for the difference in the amount received.

 

Village of Port Dickinson – Capital Asset Accountability (Broome County)

Village officials did not properly record and account for all capital assets. As a result, the village has an increased risk its assets could be lost, stolen or misused without detection. The board did not adopt a written capital asset policy or conduct periodic inventories and officials did not maintain a complete and current capital asset list. Auditors were unable to definitively locate 32 of 35 assets reviewed to the village’s asset list because the asset, purchase invoice and asset list did not contain specific identifying information.

 

Village of East Syracuse – Board Oversight of Cash Receipts and Disbursements (Onondaga County)

The board did not adequately monitor cash receipts and disbursements. Due to the lack of oversight and compensating controls, there is an increased risk that errors and irregularities could occur and remain undetected and uncorrected. The treasurer performed nearly all aspects of the cash receipts and disbursements processes, and the board did not establish controls to help ensure cash was safeguarded. The board did not review, or designate anyone to review, bank statements and canceled check images, bank reconciliations and bank transfers, or compare receipts with deposits to help ensure cash was accounted for and records were accurate. The board also did not ensure village officials reviewed and certified all payroll payments to provide assurance employees received accurate pay. In addition, the treasurer paid 49 claims totaling $258,182 without the board’s audit and approval.

 

Ulster Board of Cooperative Educational Services: Network User Accounts (Ulster County)

Officials did not adequately manage and monitor network user accounts to help prevent unauthorized use, access, or loss. In addition to sensitive information technology control weaknesses that were communicated confidentially to officials, auditors found that officials did not disable 17 unneeded network user accounts or review and did not disable 76 potentially unneeded user accounts.

 

Town of Sempronius – Real Property Tax Exemptions Administration (Cayuga County)

The assessor did not properly administer all of the real property tax exemptions reviewed and did not ensure applicants provided documentation required to grant an exemption or maintain the documentation. Auditors reviewed 58 exemptions totaling $2.7 million and found that 32 exemptions (55%) totaling $1.4 million lacked one or more pieces of documentation needed to verify eligibility and the assessor’s exemption calculation. Because each exemption impacts the tax roll, a miscalculated or inappropriately granted exemption can cause inequity among taxpayers.

 

Hamlin Morton Walker Fire District – Financial Management (Monroe County)

The board and officials did not effectively manage fund balance. From 2020 through 2022, restricted fund balance declined by $676,641 (66%). As of Dec. 31, 2022, unrestricted fund balance was $34,092, which was less than 4% of the 2023 appropriations. The board underestimated expenditures by nearly $1.5 million (45%) and underestimated revenues by $215,772 (8%) for 2020 through 2022. The district also did not have a written multiyear financial plan or adequate capital plan, which inhibits the board and officials from effectively managing finances and addressing future operating and capital needs.

 

Social Media Changes Are Impacting Government Messaging

Government agencies are working to conform to a changing social media landscape these days, with Twitter’s rebranding to X — among other things — presenting challenges.

Click HERE to access the text of Government Technology's report posted on the Internet.

Essentials in judicial review of an employee administrative disciplinary action

In a proceeding pursuant to CPLR Article 78 to review a determination of the Town terminating the plaintiff [Employee] based on the findings and recommendation of a disciplinary hearing officer, Supreme Court [a] denied the Town's motion to dismiss the Employee petition; [b] granted Employee's petition to the extent of annulling the penalty imposed; and [c] remitting the matter to the Town for the imposition of a less severe penalty.

The Town appealed the Supreme Court's decision.

The Appellate Division:

[1.] Confirmed the Town's disciplinary determination; 

[2.] Denied the Employee's petition; 

[3.] Granted the Town's motion to dismiss the Employee's petition; and 

[4.] Dismissed the proceeding "on the merits".

The Appellate Division explained:

1. "In an [administrative] employee disciplinary case, 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. "Substantial evidence is related to the charge or controversy and involves a weighing of the quality and quantity of the proof; the term means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact";

3. "When there is conflicting evidence or different inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the administrative agency"; and

4. Employee's petition raised the issue of whether the Town's determination was supported by substantial evidence, and the parties did not raise, nor did the Supreme Court address, any objection that could have terminated the proceeding within the meaning of CPLR 7804(g), the Supreme Court should have transferred the proceeding to this Court without disposing of the substantial evidence issue.

The Appellate Division opined that contrary to the Employee's contention, the record before the hearing officer contained substantial evidence to sustain the findings of misconduct and, citing Matter of Haug v State Univ. of N.Y. at Potsdam, 32 NY3d at 1046, and, contrary to the Employee's assertion, noted that "hearsay statements ... were admissible" in a Civil Service Law §75 administrative disciplinary action.

Further, said the court, "Judicial review of an administrative penalty is limited to whether the measure or mode of penalty or discipline imposed constitutes an abuse of discretion as a matter of law" and "An administrative penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law" (see Matter of Bolt v New York City Dept. of Educ., 30 NY3d 1065).

In the words of the Appellate Division: "The penalty of termination of employment imposed upon [Employee under the circumstances] did not shock one's sense of fairness," particularly considering that the incident triggering the disciplinary action was not the first time that Employee was disciplined "for engaging in such behavior."

Click HERE to access the decision of the Appellate Division posted on the Internet.

========

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. Click http://booklocker.com/books/7401.html for more information. 

 

Seeking the production of certain governmental agency records pursuant to a New York States "Freedom of Information Law" request

New York State's Freedom of Information Law [FOIL] is applicable to a governmental  "agency" but FOIL's definition of "agency" expressly excludes the records of the "judiciary" and thus such records are not within the ambit of FOIL.

In Lockwood v County of Suffolk the Appellate Division addressed whether certain Suffolk County agency records that were sought pursuant to a FOIL request were exempt from disclosure under color of being "judicial records".

Finding that Supreme Court had not determine whether those "certain records" were "judicial records", Suffolk County was directed to produce those records for an in camera inspection by Supreme Court and the matter was remitted to Supreme Court for a new determination of that branch of Lockwood's petition based upon the results Supreme Court's in camera inspection.

The full text of the Appellate Division's decision in Lockwood is set out below.

 

Matter of Lockwood v County of Suffolk

2023 NY Slip Op 04316

Decided on August 16, 2023

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

 

Decided on August 16, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
ANGELA G. IANNACCI, J.P.
CHERYL E. CHAMBERS
DEBORAH A. DOWLING
HELEN VOUTSINAS, JJ.

2021-02862
(Index No. 607383/20)  

[*1]In the Matter of Scott Lockwood, appellant,

v

County of Suffolk, et al., respondents.

Scott Lockwood, Deer Park, NY, appellant pro se.

Dennis Brown, Acting County Attorney, Hauppauge, NY (Lisa Azzato of counsel), for respondents.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to compel the production of certain records pursuant to the Freedom of Information Law (Public Officers Law art 6), the petitioner appeals from a judgment of the Supreme Court, Suffolk County (David T. Reilly, J.), dated March 22, 2021. The judgment denied the petition and dismissed the proceeding.

ORDERED that the judgment is modified, on the law, by deleting the provision thereof denying that branch of the petition which was to compel the production of records pertaining to the training of clerks of the Suffolk County Traffic and Parking Violations Agency, and substituting therefor a provision granting that branch of the petition to the extent that the respondents are directed to produce those records for an in camera inspection by the Supreme Court, Suffolk County; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for a new determination of that branch of the petition based upon the in camera inspection.

The petitioner submitted a request to the Suffolk County Traffic and Parking Violations Agency (hereinafter the TPVA) pursuant to the Freedom of Information Law (Public Officers Law art 6; hereinafter FOIL) for the production of two categories of records held by the TPVA: materials pertaining to determinations by the Clerk of the TPVA to reject or accept motions submitted to the agency; and training materials for TPVA clerks. The TPVA denied the request, stating that it did not possess any materials pertaining to the first category of records sought, and that with respect to the second category, its training materials for clerks fell within Public Officers Law § 87(2)(g), exempting certain intra-agency materials from disclosure. After his request was denied, the petitioner pursued an administrative appeal. The appeals officer declined to order the production of records held by the TPVA on the ground that the TPVA is part of the judiciary and, thus, its records are not the records of an "agency" as defined in Public Officers Law § 86(3). Alternatively, the appeals officer concluded that the TPVA did not possess responsive records. The petitioner then commenced this proceeding pursuant to CPLR article 78 to compel the production of the requested records. The Supreme Court denied the petition and dismissed the proceeding. The petitioner appeals.

"In order to promote open government and public accountability, FOIL imposes a broad duty on government to make its records available to the public" (Matter of Tuckahoe Common Sch. Dist. v Town of Southampton, 179 AD3d 929, 930). "To this end, FOIL provides that all records of a public agency are presumptively open to public inspection and copying unless otherwise specifically exempted" (Matter of Law Offs. of Cory H. Morris v County of Nassau, 158 AD3d 630, 631; see Public Officers Law § 87[2]). Exemptions are construed "narrowly, and an agency has the burden of demonstrating that an exemption applies 'by articulating a particularized and specific justification for denying access'" (Matter of Kosmider v Whitney, 34 NY3d 48, 54, quoting Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 566; see Matter of Abdur-Rashid v New York City Police Dept., 31 NY3d 217, 225).

FOIL is applicable to "agency" records, but its definition of "agency" expressly excludes the "judiciary" (Public Officers Law § 86[3]). "The TPVA is a 'hybrid agency that exercises both prosecutorial and adjudicatory responsibilities,' and [ ] the prosecutorial function is 'distinct from the adjudicatory function'" (Matter of Law Offs. of Cory H. Morris v County of Nassau, 158 AD3d at 632, quoting Matter of Dolce v Nassau County Traffic & Parking Violations Agency, 7 NY3d 492, 498). "Accordingly, to the extent that a TPVA record concerns the nonadjudicatory responsibilities of the TPVA, it is not exempt from disclosure under the definition of 'agency' in Public Officers Law § 86(3)" (Matter of Law Offs. of Cory H. Morris v County of Nassau, 158 AD3d at 632).

Here, the Supreme Court properly determined that the first category of records sought related to the TPVA's adjudicatory responsibilities. In any event, the TPVA established that it possessed no such materials (see Matter of Jewish Press, Inc. v New York City Dept. of Corr., 200 AD3d 1038, 1039-1040).

However, with respect to the second category, without examination of the records that the petitioner seeks, the Supreme Court could not determine that the training materials requested were exempt from disclosure as records of the "judiciary" (see Matter of Law Offs. of Frank DeSousa v Nassau County, 171 AD3d 925, 926; Matter of Law Offs. of Cory H. Morris v County of Nassau, 158 AD3d at 632). Similarly, examination of those records was required to determine whether they were exempt intra-agency materials. To the extent that intra-agency materials contain "instructions to staff that affect the public," they remain subject to disclosure pursuant to FOIL (Public Officers Law § 87[2][g]; see Matter of Gedan v Town of Mamaroneck [N.Y.], 170 AD3d 833, 834-835; see generally Matter of Xerox Corp. v Town of Webster, 65 NY2d 131, 133).

Accordingly, we modify the judgment so as to grant that branch of the petition which was to compel the production of records pertaining to the training of TPVA clerks to the extent of directing the TPVA to produce those records for an in camera inspection by the Supreme Court, Suffolk County, and remit the matter to the Supreme Court, Suffolk County, for a new determination of that branch of the petition based upon the in camera inspection.

IANNACCI, J.P., CHAMBERS, DOWLING and VOUTSINAS, JJ., concur.

ENTER:

Darrell M. Joseph

Acting Clerk of the Court

A judicial finding that a rational jury could find employer failed to provide a reasonable workplace accommodation of employee's disability bars granting employer's motion for summary judgment

Plaintiff was employed by Defendant from 2008 until her employment was terminated in 2015. Alleging Defendant discriminated against her based on her disability and retaliated against her for seeking an accommodation for that disability, Plaintiff initiated litigation alleging Defendant had violated provisions of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., the New York State Human Rights Law, N.Y. Exec. Law §296, and 42 U.S.C. §1983.   

Plaintiff claimed the Defendant failed to reasonably accommodate her request not to be assigned archiving tasks provided the Defendant with medical documentation describing her physical limitations.*

Federal District Court granted Defendant's motion for summary judgment on her reasonable accommodation and retaliation claims. Plaintiff appealed the federal district court's ruling. 

The Second Circuit Court of Appeals, finding that "archiving was not an essential function" of Plaintiff's position, opined:

[1] Viewing the evidence most favorably to Plaintiff, a rational jury could find Defendants failed to provide a reasonable workplace accommodation for her disability; and

[2] Disputed "issues of material fact" precluded the federal district court's granting summary judgment to Defendant with respect to Plaintiff's retaliation claim."

Addressing Plaintiff's §1983 claim, the Second Circuit said that because Plaintiff had not presented any arguments on appeal challenging the federal district court’s decision with respect to her §1983 claim, it deemed that Plaintiff had abandoned that claim.

Vacating the federal district court’s decision with respect to the Plaintiff's reasonable accommodation and retaliation allegations, the Circuit Court, Judge Sullivan concurring in part and dissenting in part in a second opinion, remanded the matter to the district court for "further proceedings consistent with this opinion."

* Plaintiff also contended that Defendants retaliated against her for making the accommodation request by forcing her to go on medical leave, which ultimately led to her termination. 

Click HERE to access the Appellate Division's decision posted on the Internet.

 

 

New York State Public Personnel Law e-books

The Discipline Book - Click HERE for information

A Reasonable Disciplinary Penalty - Click HERE for information

The Layoff, Preferred List and Reinstatement Manual - Click HERE for information

Disability Leave for fire, police and other public sector personnel - Click HERE for information

Appeal to the Commissioner of Education challenging a Board of Education suspending school district employee held untimely

Claiming that she witnessed a district staff member abuse a minor child, Petitioner reported the alleged incident to her supervisor and several other district employees.  Noting that the parties’ versions of events vary, the Commissioner of Education said "it appears that an altercation ensued between [Petitioner] and the principal ... resulted in [Petitioner] being placed on paid leave."* 

Ultimately, the Board of Education [Board] suspended Petitioner's employment by the school district.

Petitioner challenged the Board's action and in her appeal asked the Commissioner to direct the Board "impose a fine, request a written apology, and/or impose discipline upon all district employees to whom the alleged abuse was reported." Additionally Plaintiff asks that the Board be directed to notify the family of the minor child of the alleged abuse.

The Board contended that Petitioner's appeal should be dismissed as [1] untimely and [2] for lack of jurisdiction over the district respondents named by Petitioner. 

On the merits, the Board contends, among other things, that Petitioner has failed to state a claim for which relief may be granted.

The Commissioner first addressed a preliminary matter: Petitioner’s reply to the Board's answer to contains new information and claims that were not raised in the petition.  The Commissioner said the purpose of a reply is to respond to new material or affirmative defenses set forth in an answer and is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition.

Turning to procedural issues, the Commissioner said the Petitioner's appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown. Further, the Commissioner noted that "[except] in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal."

In addition, Petitioner raised general assertions of alleged neglect on the part of her attorney in processing her appeal to the Commissioner. The Commissioner opined that this claim concerns an issue of professional responsibility that is outside the scope of an appeal to the Commissioner of Education.

* The district contended that Petitioner had put her hands on the principal and submitted photographic evidence in support of this allegation.

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

The New York State Department of Civil Service invites attorneys to consider a career in public service with the State of New York

For information describing current employment opportunities click HERE.

A presumption of public access to judicial documents may be outweighed by the importance of maintaining confidentiality under the Federal Arbitration Act

A former employee [Plaintiff] of International Business Machines Corporation ([IBM] had signed a separation agreement requiring confidential arbitration of any claims arising from her termination.* Plaintiff arbitrated an age-discrimination claim against IBM and won. Plaintiff then filed a petition in federal district court under the Federal Arbitration Act [FAA] to confirm the award, attaching it to the petition under seal but simultaneously moving to unseal it.

Shortly after Plaintiff filed the petition, IBM paid the arbitration award in full. The federal district court granted Plaintiff’s petition to confirm the award and her motion to unseal the arbitration award.

IBM appealed the district court's unsealing of the award, contending that (1) the petition to confirm became moot once IBM paid the award, and (2) the district court erred in unsealing the confidential award.

The United States Court of Appeals, Second Circuit, agreeing  with IBM, explaining that Plaintiff's petition to confirm her purely monetary award became moot when IBM paid the award in full because there remained no “concrete” interest in enforcement of the award to maintain a case or controversy.

The Circuit Court also ruled that any presumption of public access to judicial documents was outweighed by the importance of confidentiality under the FAA and the impropriety of Plaintiff’s effort to evade the confidentiality provision in her arbitration agreement. In the words of the court, "In short, the presumption of access to judicial documents is outweighed here by the interest in confidentiality and because [Plaintiff's] apparent purpose in filing the materials publicly is to launder their confidentiality through litigation."

Concluding that the district court should not have granted Plaintiff’s motion to unseal the award," the Circuit Court of Appeals remanded the matter to the federal district court "with instructions to dismiss the petition as moot" and reversed the district court's ruling unsealing the award.

* Plaintiff had signed the separation agreement in exchange for "severance payments and other benefits. The Agreement included a class- and collective-action waiver requiring claims arising from her termination—including claims under the ADEA—to be resolved “by private, confidential, final and binding arbitration.”

Click HERE to access the Circuit Court of Appeals' decision posted on the Internet.

 

Former town court clerk pleads guilty to Jobbery

As noted in previous NYPPL reports of misconduct involving a public employee stealing public funds, such breaches of the public trust are frequently referred to as "jobbery." Mirriam-Webster defines jobbery as "the improper use of public office or conduct of public business for private gain".

On August 17, 2023, State Comptroller Thomas P. DiNapoli, Wayne County District Attorney Michael Calarco and the New York State Police announced that the former court clerk for the Town of Marion, Eileen Steurrys, pleaded guilty to stealing over $50,000 from the town court.

“Ms. Steurrys went to great lengths to try and cover up her theft of public funds. She now faces the consequences of her actions because of my office’s investigation and our partnership with District Attorney Calarco and the State Police,” New York State Comptroller DiNapoli said. “My thanks to the District Attorney and the State Police for their continuing partnership in combating public corruption.”

Following the plea, Prosecutor John J. Ferlicca of the Wayne County DA’s Office said, “The auditors from the State Comptroller did an exceptional and thorough investigation, which made my job of obtaining a conviction that much easier.”

New York State Police Acting Superintendent Steven A. Nigrelli said, “This guilty plea today once again demonstrates the hard work of law enforcement partners focused on the same goal: holding those who break our laws, accountable. Ms. Steurrys manipulated a position she was entrusted in and used it to her own advantage. We will not tolerate such corruption from those who use their position to profit at the expense of the local community. I commend and thank the State Comptroller’s office and the Wayne County District Attorney’s office for their commitment to investigating and prosecuting those who prey on their community.”

Steurrys’ crimes were uncovered during DiNapoli’s audit of the Town of Marion Court Fund, which found that court fees collected were not always being deposited into the court’s account. A resulting investigation, in collaboration with Wayne County District Attorney Calarco and the State Police, determined that, from 2016 to 2021, Steurrys stole over $50,000 and altered court records and created phony receipts to conceal her crimes. She was arrested in March following the joint investigation.

Steurrys’ pleaded guilty to Grand Larceny in the Second Degree, Corrupting the Government in the Second Degree, Tampering with Records in the First Degree and Official Misconduct before Wayne County Court Judge Richard M. Healy. Her sentencing is scheduled for October 18, 2023

 

Georgia woman pleads guilty to stealing her deceased father's NY state pension checks

On August 16, 2023, New York State Comptroller Thomas P. DiNapoli, Albany County District Attorney David Soares and the New York State Police announced that Alayne Bertolino pleaded guilty to stealing more than $240,000 in New York state pension payments made to her deceased father.

“This case should serve as a warning to those who would try to defraud our state’s pension fund — you will be caught,” State Comptroller DiNapoli said. “My thanks to Albany County District Attorney David Soares and the New York State Police for their partnership with my office’s Division of Investigations. Working together we ensured the pension fund was protected, restitution was paid and justice was served.”

“The loss of a loved one is always a difficult emotional period, but it should never be used to profit from the hard work of taxpayers,” said Assistant District Attorney Erin Bates, who is handling the prosecution of this case. “We hope this resolution helps to restore trust in the justice system by sending a clear message: the law will hold anyone accountable for trying to exploit the system for financial gain. When applied properly, justice holds everyone accountable, regardless of their position.”

New York State Police Acting Superintendent Steven A. Nigrelli said, “I commend the diligent work of our State Police members, along with our partners at the State Comptroller’s Office and Albany District Attorney’s Office, for their hard work in putting an end to this fraudulent and dishonest act. Ms. Bertolino deplorably took advantage of her deceased father’s hard-earned pension to support her own selfish needs. Today’s guilty plea is proof that we will not tolerate the actions of those willing to defraud the New York state pension fund.”

The defendant’s father, Joseph Bertolino, was a detective with the Nassau County Police Department who retired in 1991. His pension checks were directly deposited into a joint account he held with his daughter, who lives in Georgia. When he passed away at age 69, on Jan. 24, 2014, his daughter sought to conceal his death from the state retirement system. Alayne Bertolino did not notify the retirement system of her father’s death and sent a change of address form in his name.

A total of 56 monthly deposits, totaling $246,272.32, were made into the jointly held bank account after Joseph Bertolino’s death. Alayne Bertolino used the money to assist in purchasing a $556,000 home and car.

Ms. Bertolino pleaded guilty to Grand Larceny in the Second Degree and was ordered to make restitution in the amount of $242,558.56 by Albany County Court Judge William T. Little.

 

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The Artificial Intelligence Power Paradox: An article posted on the Internet by Foreign Affairs Magazine

An article, Can States Learn to Govern Artificial Intelligence—Before It’s Too late? by Ian Bremmer and Mustafa Suleyman was posted on the Internet by Foreign Affairs Magazine on August 16, 2023, opining:

"As artificial intelligence technology continues to advance at a breakneck pace, it will only become better, cheaper, more ubiquitous, and more dangerous, write Ian Bremmer and Mustafa Suleyman in a new essay for Foreign Affairs. 'Its arrival marks a Big Bang moment, the beginning of a world-changing technological revolution that will remake politics, economies, and societies.'”

"This pace of change also makes AI more difficult to regulate.'Artificial intelligence does not just pose policy challenges; its hyper-evolutionary nature also makes solving those challenges progressively harder,' Bremmer and Suleyman argue. 'That is the AI power paradox.' And with policymakers already behind the curve, they warn, there is no time to waste in developing new regulatory frameworks: 'If governments do not catch up soon, it is possible they never will.'"

 Click HERE to access the article.

New York Governor Kathy Hochul releases first statewide cyber strategy

On August 15, 2023, GOVTECH CYBERSECURITY reported that New York Gov. Kathy Hochul Released First Statewide Cyber Strategy

The state’s plan addresses how current and anticipated initiatives support its larger goals of building resilience, preparedness and unification across cybersecurity efforts. The strategy takes a holistic approach across sectors. READ MORE .

In a defamation action seeking damages, courts distinguish facts from opinions

Plaintiff commenced this defamation action seeking damages for statements made by Defendant in a letter to the New York State Inspector General [IG] about Defendant's concerns that Plaintiff, as a member of the New York State Joint Commission on Public Ethics, and others, were disclosing confidential information to the media.

Defendant answered the complaint and asserted a counterclaim seeking to recover damages under the anti-strategic lawsuits against public participation statutes*. Plaintiff moved to dismiss Defendant's counterclaim, and Defendant moved, inter alia, to dismiss Plaintiff's complaint. Defendant appeals and Plaintiff cross-appeals from an order that denied both motions.

The Appellate Division agreed with Defendant that Supreme Court should have granted her motion insofar as it sought dismissal of the complaint pursuant to CPLR §3211(a), subdivisions (7) and (g) and modified Supreme Court's order accordingly. The court, noting that there "is no dispute that [Defendant] established on her motion that the action involves "public petition and participation", also concluded that Plaintiff, in opposition to the motion, "failed to demonstrate that the action has a substantial basis in law" inasmuch as Defendant's statements in question constitute nonactionable expressions of opinion.

The Appellate Division explained that  "In order for the challenged statements to be susceptible of a defamatory connotation, they must come within the well established categories of actionable communications" and falsity is a necessary element of a defamation cause of action as only "facts" are capable of being proven false. Accordingly, said the court, "it follows that only statements alleging facts can properly be the subject of a defamation action." Citing  Mann v Abel, 10 NY3d 271, [cert denied 555 US 1170], the Appellate Division said "whether a particular statement constitutes an opinion or an objective fact is a question of law".

Defendant's letter, said the court, constitutes "a statement of opinion ... accompanied by a recitation of the facts upon which it is based" and Defendant's allegations used phrases such as "appear to be" and "[t]o the extent that there is evidence," while setting forth the facts upon which such allegations were based.

Further, the Appellate Division noted the letter was addressed to the IG urging the commencement of an investigation and said that in reviewing the full context of the communication, "including its tone and purpose," it concluded that Defendant "set out the basis for [her] personal opinion, leaving it to the [IG] to evaluate it for [herself]", citing Brian v Richardson, 87 NY2d 46.

* See Civil Rights Law §§70-a and 76-a.

Click HERE to access the opinion of the Appellate Division posted on the Internet.

 

Entering a plea of Nolo Contendere in an administrative disciplinary action

Nolo Contendere is Latin for "I will not contest it."

A decision of the Commissioner of Education involving "student discipline" in which the Commissioner considered a plea of “no contest” is Decisions of the Commissioner 16,385, posted on the Internet at http://www.counsel.nysed.gov/Decisions/volume52/d16385.html. Here the Commissioner noted "no contest” pleas in student disciplinary proceedings ... have been upheld as valid when entered into knowingly and voluntarily."

Other decisions in which the Commissioner considered a plea of “no contest” include: Decision No. 16,101; Decision No. 15,841; Decision No. 15,122; Decision No. 14,529; Decision No. 14,305; and Decision No. 14,217 

With respect to "settling an employee disciplinary action," the decision in Taylor v Cass, 505 NY2d 929, indicates that the terms and conditions of such a settlement authorizing the termination of the employee without notice and hearing are strictly construed.

The stipulation of settlement at issue provided that Taylor would be terminated "without another hearing" if, during his disciplinary probationary period, Taylor's job performance, in the opinion of his supervisor, was "adversely affected" by his "consumption of alcohol".

Served with a "notice of infraction" of the terms of his disciplinary probation, Taylor was summarily terminated from his position for "failing to give a fair day's work" and "sleeping during [the] scheduled working hours" without a disciplinary hearing. 

Significantly, the letter of termination sent to Taylor failed to state that intoxication was the reason for his dismissal. The decision by the Court of Appeals indicated that Taylor was terminated "solely for the reasons set forth in the notice of infraction", i.e., "failing to give a fair day's work" and "sleeping during [his] scheduled working hours".

In the words of the Court of Appeals, "Under the circumstances, [Taylor] should not have been dismissed without a hearing...."

It has been suggested that in the event an employee served with charges in an administrative disciplinary action merely enters a plea of nolo contendere in contrast to entering into a formal agreement of  "settlement" of the disciplinary action, the appointing authority should proceed with the disciplinary action and conduct it as a disciplinary hearing being held in absentia.

Indeed, Section 75.2 of the Civil Service Law, in pertinent part, provides “the burden of proving incompetency, and, or misconduct shall be upon the person alleging the same.”

In other words, it appears the failure of an employee to offer an explanation or a defense does not absolve the employer of its obligation to prove the charges of incompetency, and, or, misconduct served on an employee in an administrative disciplinary proceeding before imposing disciplinary sanctions absent the parties mutually agreeing to "settling the matter".

As  to conducting disciplinary hearings in absentia, in Mujtaba v NYS Dept. of Education, 148 A.D.2d 819, the Appellate Division held “due process does not require that [the charged individual] be present at an administrative hearing, but rather requires notice of the charges and an opportunity to be heard.” What also is required, however, is that the appointing authority made a diligent effort to contact the employee to inform him or her that the disciplinary hearing had been scheduled and would take place even if the individual fails to appear and participate.

In contrast, an accused who had pleaded guilty to a criminal charge, or who had pleaded nolo contentere to the criminal charge, is deemed to "having been found guilty" of that criminal charge. However, although a plea of nolo contendere has the same immediate effect as a guilty plea, it cannot be used against the individual in another cause of action.

Click HERE to access a LawBlog focusing on Nolo Contendere posted on the Internet.