ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

September 29, 2023

Municipal and School Audits released by New York State Comptroller Thomas P. DiNapoli

On September 29, 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 summary and the complete audit reports

 

Brighter Choice Charter School for Girls – Non-Payroll Disbursements (Albany County)

The board and officials did not provide adequate oversight to ensure disbursements were adequately supported, properly approved,  and for a school-related purpose. Without adequate oversight, the board and officials cannot ensure that all disbursements were made as authorized or for an appropriate purpose.

 

City of White Plains – Sexual Harassment Prevention (SHP) Training (Westchester County)

SHP training was provided to employees and elected officials. However, of the 150 total individuals tested (142 selected employees and all eight elected officials), 14 employees and one elected official did not complete the annual training.

 

Germantown Central School District – Payroll (Columbia County)

The district did not have adequate payroll processes to ensure compensation paid to employees was accurate, adequately supported and authorized by the board. For example, district officials did not properly segregate payroll processing duties and did not provide adequate oversight. Auditors identified $41,000 in payroll payments to 12 employees that were either inaccurate or not authorized by the board.

 

Rapids Fire Company – Credit Cards (Niagara County)

Credit card purchases were not always made by authorized users, and 762 purchases totaling $110,938 (97% of the credit card charges made during the audit period) lacked documentation to support the purchases, confirm whether the purchases were received, and determine whether the purchases were for appropriate company purposes.

 

Town of Amherst – Sexual Harassment Prevention Training (Erie County)

SHP training was provided to employees and elected officials. However, of the 100 total individuals tested (91 selected employees and all nine elected officials), 67 employees and eight elected officials did not complete the annual training.

 

Town of Rodman – Town Clerk/Tax Collector (Jefferson County)

The clerk accurately recorded, deposited and remitted the collections auditors reviewed. However, the collections were not always deposited or remitted in a timely manner. In addition, the clerk did not prepare bank reconciliations or compare known liabilities to reconciled bank balances and money on hand. As a result, there was an increased risk that collections could have been lost or stolen.

 

Village of Lindenhurst – Sexual Harassment Prevention Training (Suffolk County)

None of the village’s 240 total employees and six elected officials were provided SHP training during the 2021 annual training period.

 

Yates County – Sexual Harassment Prevention Training

SHP training was provided to employees and elected officials. However, of the 45 total individuals tested (23 selected employees and all 22 elected officials), three elected officials, including the sheriff and two coroners, did not complete the annual training.

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Former medical office manager arrested for scheme to defraud the New York State Health Insurance Plan

New York State Comptroller Thomas P. DiNapoli reported the Officer Manager [OM] for numerous doctors’ offices in Manhattan defraud the New York State Insurance Plan [NYSHIP] out of over $12,000 by submitting fraudulent claims for reimbursement. OM was arrested following a joint investigation conducted by Comptroller DiNapoli, Ulster County District Attorney Clegg, and the FBI Hudson Valley White Collar Crime Task Force.

The Comptroller said that OM "allegedly took advantage of her position to fund her lifestyle at the expense of the taxpayers". Di Napoli noted his partnerships with Ulster County District Attorney Clegg and the Federal Bureau of Investigation in the investigation of this fraud and said "the defendant will be held accountable.”*

The Comptroller indicated that the joint investigation "revealed that from 2018 through September of 2019, the OM submitted false claims to NYSHIP under her husband’s NYSHIP identification number claiming that medical services were provided by two out-of-network providers for whom she worked, but the services actually never occurred." Through this scheme, OM received $12,957.50 from NYSHIP to which she was not entitled and "used the funds that she received from NYSHIP to pay her personal expenses including credit card debt."

The investigation was initiated as the result of a complaint submitted by United Healthcare's Special Investigations Unit and which assisted in the investigation.

OM was arraigned in Town of Ulster Court before Judge Kesick and was charged with Grand Larceny in the third degree, Healthcare Fraud in the third degree, Offering a False Instrument for Filing in the first degree, and Falsifying Business Records in the first degree. 

* N.B. The charges filed in this case against OM are merely accusations and the OM is presumed innocent unless and until proven guilty in a court of law.

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Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. Allegations of fraud involving taxpayer money may be submitted to the State Comptroller via the Internet by clicking on investigations@osc.ny.gov, by calling the toll-free Fraud Hotline at 1-888-672-4555, or by mailing a complaint to the Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

 


September 28, 2023

Amendments to Education Law Section 310 appeals to the Commissioner of Education proposed

On the New York State Register published proposed changes concerning appeals to the Commissioner of Education pursuant Education Law Section 310.* The proposed amendments were filed by the New York State Department of Education "to ensure that the appeals process serves as an expeditious and simple method to address questions [involving] school administration."

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

Comments, views or arguments concerning the proposed changes may be submitted to Daniel Morton-Bentley, Esq., Counsel, Education Department, Office of Counsel, 89 Washington Avenue, Room 112EB, Albany, NY 12234, (518) 474-6400, email: REGCOMMENTS@nysed.gov.

Comments from the public will be received until 60 days after publication of this notice which publication was posted in the September 27, 2023 issue [Vol. XLV, Issue 3] of the State Register.

* The proposed changes seek to amend §§275.2, 275.7, 275.9, 275.11, 276.9, 277.1 and 277.2 of Title 8 NYCRR.

 

 

New federal rules addressing employment in institutions of higher education

Inside Higher Ed notes "a new rule, which is stronger than versions released during the Obama administration, adds new disclosure requirements for all academic programs despite opposition from across the higher education industry."

Click HERE to access Higher Ed article posted on the Internet.

New York State Workers’ Compensation Board webinar series for workers and their advocates

New York State Workers’ Compensation Board continues to offer its webinar series for workers and their advocates. Workers’ Comp 202: Best Practices to Access Benefits for Workers, A presentation by the Office of the Advocate for Injured Workers, webinars are currently scheduled as listed below.

The sessions are free and time for questions will be provided.

Tuesday, October 2, 2023
10:00 A.M. - 11:30 A.M.
Register here

Wednesday, December 13, 2023
10:00 A.M. - 11:30 A.M.
Register here

Topics include:

  • Understanding labor market attachment
  • Details on benefit periods and how benefit rates are calculated
  • The importance of items such as the degree of disability and the Carrier Continue Payments (CCP) order
  • How advocates can help workers and comply with privacy provisions
  • The Workers’ Compensation Board’s New York Medical Treatment Guidelines, and more!

 

 

September 27, 2023

New York State local governments’ financial indicators evaluated by the New York State Comptroller

On September 26, 2023, New York State's Comptroller Thomas P. DiNapoli announced latest fiscal stress scores reflecting findings contained in 10 years of his fiscal monitoring system data.

Comptroller DiNapoli reported "A total of 14 local governments in New York State ended their fiscal year 2022 with a fiscal stress designation, down from 20 a year ago". Of the 14, nine were announced on September 25, 2023. These determinations were based on the State Comptroller’s Fiscal Stress Monitoring System (FSMS) scores released on September 25, 2023 and highlighted in a report. In particular, the Comptroller noted "many municipalities benefited from federal aid and rising sales tax revenues in 2022".

DiNapoli launched FSMS in 2013 to evaluate local governments’ financial indicators, including year-end fund balance, operating deficits, cash-on-hand, short-term borrowing, fixed costs and other factors. The system’s fiscal stress scores provide an early warning to local officials about potential fiscal issues and give the public insight into their communities’ financial health.

“Our fiscal stress early warning system identifies potential financial problems for local governments so they can take corrective action to avoid problems down the road,” DiNapoli said. “The fact that fewer local governments were in fiscal stress in fiscal year 2022 was largely due to the infusion of aid from the American Rescue Plan Act and sales tax revenue growth. Sales tax collections have leveled off in recent months and federal dollars are being spent down, so localities should plan their budgets cautiously and accordingly.”

DiNapoli releases fiscal stress scores for municipalities (excluding New York City) twice a year. The scores announced today are for local governments operating on a calendar year basis for fiscal year 2022, covering all counties and towns, 44 cities, and 11 villages. This round of scoring identified nine local governments in fiscal stress, including five cities and four towns. In March, DiNapoli announced that five local governments with non-calendar fiscal years were designated in stress.

The Town of Centerville in Allegany County was the only one in the highest-ranking designation of “significant stress.” The City of Little Falls (Herkimer County) and the Village of Coxsackie (Greene County) were in “moderate stress,” the next highest ranking, followed by the cities of Albany, Cortland, Glen Cove, Poughkeepsie, the towns of Dayton, Mohawk and Yates, and the villages of Canajoharie, Chateaugay, Huntington Bay, and Mohawk, which were designated as “susceptible to fiscal stress.” 

“With the resources provided by the Office of New York State Comptroller Tom DiNapoli, like the fiscal stress monitoring system, Westchester County has successfully steered toward fiscal stability,” said Westchester County Executive George Latimer. “We inherited a challenging financial situation, but with the support of these critical resources we bettered out footing. Today we can proudly say we have improved our bond rating, lowered taxes and bolstered our rainy-day fund – all while cutting taxes.”

“Our New York State Comptroller continues to provide valuable fiscal guidance and assistance to municipalities throughout our state,” Colonie Town Supervisor Peter G. Crummey said. “In fact, last year, in my first year as Colonie town supervisor, I implemented the first ever fund balance policy which was a long-time recommendation of Comptroller DiNapoli. As a result of implementing such recommendation, in addition to other fiscally prudent actions, our town’s bond rating and fiscal health continues to rise.”

“When State Comptroller DiNapoli introduced the FSMS we were a little hesitant at the county level. We had just come out of the Great Recession. It was a very rocky time in state and local finances,” said New York State Association of Counties Executive Director Stephen Acquario. “But let’s give credit where credit is due. The Comptroller took a chance on this new program. He cares about local governments and our fiscal condition was compromised. The fiscal condition of our local governments means something to him as the state’s chief auditor. When we look back at why he did this, it was for the betterment of the state.”

"For the past decade State Comptroller DiNapoli's Fiscal Stress Monitoring System has played a valuable role in objectively measuring and identifying municipal fiscal stress,” New York State Conference of Mayors Executive Director Barbara Van Epps said. “With the release of this year's report, the Comptroller wisely warns of impending fiscal stress due to the recent leveling off of sales tax collections and the spending down of one-time federal aid. These negative trends highlight the need for the Governor and State Legislature to provide local governments with the assistance and tools that they need in the 2024-25 state budget."

Along with the scores released today, DiNapoli issued a report summarizing fiscal year end 2022 fiscal stress scoring results for calendar year and non-calendar year municipalities, including designations by class, changes to fiscal stress indicators and issues of concern, among other things. Included in the report is an analysis of the 10 years of data collected since the launch of the system, highlighting lessons learned over the past decade.

An online interactive visualization released with the report lets users select a county on a map and display fiscal stress information for all local governments within the county, including filing status, stress designations and scores, from fiscal years 2013 to 2022.

Among the report’s findings:

  • As was the case a year ago, none of the reporting counties were designated in any fiscal stress category in fiscal year 2022. While the number of towns designated in stress grew slightly, less than 1% were designated, second only to counties.
  • The number of cities and villages in stress designations decreased in fiscal year 2022 compared to 2021. For cities, 11% were designated in some level of stress, down from 16% in 2021. Just 1.1% of villages were designated in stress, down from 2.2% in 2021.
  • The number of local governments that triggered a fiscal stress indicator score was down for all five categories from fiscal year 2021 to 2022 after already declining the prior year. The percentage of local governments showing low fund balance in 2022 was 6.9%, down from 7.5% in 2021.
  • Nearly 90% of all local governments that have received a fiscal stress score from fiscal years 2013 to 2022 have never been designated in stress.
  • A total of 20 local governments have spent five or more years in a fiscal stress designation from fiscal years 2013 to 2022.

DiNapoli’s report also noted that the number of local governments failing to file their annual financial reports in time to receive a fiscal stress score has risen over the past several years, up from 121 in fiscal year 2013 to 209 in 2022. When a municipality doesn’t file, it leaves local officials and taxpayers in the dark about possible financial problems. DiNapoli’s office will undertake targeted outreach and training to help local governments comply with the law and bring their financial reporting up to date.     

 

Lists

Municipalities in Stress for Fiscal Year Ending 2022

Municipalities Who Did Not File or Designated Inconclusive


Excel Spreadsheet

Detailed List of All Municipalities in State and Fiscal Stress Scores

 

Report

Fiscal Stress Monitoring System Municipalities: Fiscal Year 2022 Results

 

Online Interactive Visualization

Fiscal Stress Monitoring System 10 Year Statistics

 

Online Search

Fiscal Stress Monitoring System

 

 

September 26, 2023

Termination of an employee placed on leave as the result of a disability resulting from occupational injury or disease as defined in the worker's compensation law

A Board of Cooperative Educational Services [BOCES] paraprofessional [Petitioner] employed in an elementary classroom setting for children with severe developmental disabilities was attacked and injured a student. Initially able to return to work after her injuries, Petitioner subsequently stopped coming to work and one year later BOCES, contending that "it did not consider the [Petitioner's] injuries to have been the result of an assault sustained in the course of her employment" which would otherwise entitle her to two years of leave pursuant to Civil Service Law §71*, advised Petitioner she would be terminated from her position.

Petitioner challenged the BOCES' action and Supreme Court  granted her petition, annulling BOCES' determination. The court directed BOCES to reinstate Petitioner to her employment status as it existed prior to the effective date of the BOCES' determination and to continue such status in accordance with §71 of the Civil Service Law. BOCES appealed the Supreme Court's ruling.

The Appellate Division affirmed the lower court's judgment, with costs, explaining:

1. "The standard of judicial review in the instant proceeding pursuant to CPLR Article 78 is whether the action was arbitrary and capricious, an abuse of discretion, in violation of a lawful procedure, or affected by an error of law", citing Matter of Still v City of Middletown, 133 AD3d 864;

2. An "Administrative action is arbitrary when it is without a sound basis in reason and is taken without regard to the facts," noting C.F. v New York City Dept. of Health & Mental Hygiene, 191 AD3d 52 and other decisions cited in the opinion; and

3. BOCES's determination to terminate the Petitioner's employment "was conclusory and lacked a factual basis."

Accordingly, said the Appellate Division, Supreme Court "properly granted the petition" and provided the appropriate relief required under circumstances.

* N.B. Civil Service Law §71, in pertinent part, provides an employee absent by "reason of a disability resulting from an assault sustained in the course of his or her employment ... shall be entitled to a leave of absence for at least [a cumulative period of] two years, unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position." Typically such absence is "leave without pay" although the disabled individual may be able to elect to remain on the payroll if able to charge such absence to accrued leave credits. In contrast, see General Municipal Law §207-a, which provides for the payment of salary, medical and hospital expenses with respect to firefighters for injuries or illness incurred in performance of duties and §207-c of the General Municipal Law with respect to similar benefits to specified employees of a police force or a sheriff's department and certain other personnel.

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

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Disability Leave for fire, police and other public sector personnel.

An electronic book available for purchase from BookLocker.

Click HERE for information and access to a free excerpt of the material presented in this e-book.

 


Governor Hochul deployes additional New York National Guard personnel to support asylum seekers

Governor Hochul deployed an additional 150 National Guard personnel to support the ongoing response to the asylum seeker and migrant crisis, bringing the total to 2,050.

Click on "press release" to access the Governor's Press Release.

 

Por favor haga clic en el texto a continuaciĆ³n en rojo para acceder al comunicado de prensa en espaƱol: 
La Gobernadora Hochul Despliega 150 Efectivos Adicionales de la Guardia 
Nacional para Apoyar la Respuesta a la Crisis de Solicitantes de Asilo

September 25, 2023

Reminder: Covid-19 program to provide free Covid-19 home tests to Americans reestablished

CNN reported the US government will relaunch a program to provide free Covid-19 home tests to Americans as new variants continue to alarm health officials. 

Beginning Monday, September 25, 2023, US households can order four free tests from Covidtests.gov. The relaunching of the program comes as Covid-19 hospitalizations rise in the US with weekly admissions in September 2023 more than triple what they were in July 2023.

Click the text highlighted in color below for the most recent COVID-19 data posted on the Internet by NYPPL's COVID-19 consultant, Isaac Michaels.

N.B.: Michaels revised this information on his Internet site routinely as the respective underlying data sources are updated. His website serves as a valuable resource for those interested in epidemiology and data science.

 

Click HERE to access Michaels' site on the Internet.

 

Municipal and School Audits released by New York State Comptroller Thomas P. DiNapoli

On September 22, 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 both the summary and the complete audit report

Saratoga Springs City School District – Procurement (Saratoga County)

District officials did not always procure goods and services according to policy requirements or maintain adequate supporting documentation for the purchases. Auditors reviewed 30 contracts totaling $1.2 million and determined that officials did not comply with policy requirements when procuring four purchase or public works contracts totaling $36,783. Officials also did not maintain contract pricing documentation for 13 contracts totaling $471,156 or safeguard the purchasing agent’s electronic signature.

 

City of Glens Falls – Sexual Harassment Prevention (SHP) Training (Warren County)

SHP training was not provided to all employees and any elected officials. Of the 30 total individuals tested (23 selected employees and all seven elected officials), two employees and all seven elected officials did not complete the annual SHP training. Additionally, the city excluded seasonal employees and new hires starting in June or after from the training.

 

Albany County – Sexual Harassment Prevention (SHP) Training (Albany County)

Although County officials provided employees and most elected officials annual SHP training, they did not maintain reliable records of who completed the training or ensure everyone who should have completed the training did so. Of the 315 total individuals tested, including 267 selected employees and all 48 elected officials, auditors could not reliably verify that 308 of the individuals tested completed the raining.

 

Town of Hyde Park – Sexual Harassment Prevention (SHP) Training (Dutchess County)

SHP training was not provided to all employees and elected officials. Of the 20 total individuals tested (10 selected employees and all 10 elected officials), one employee and six elected officials did not complete the annual SHP training. Additionally, the town excluded 47 seasonal employees from the training.

 

Village of Lake Placid – Sexual Harassment Prevention (SHP) Training (Essex County)

SHP training was provided to employees and elected officials. Of the 20 total individuals tested (15 selected employees and all five elected officials), one employee of the police department and two elected trustees did not complete the annual training.

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September 22, 2023

Essentials concerning an agency's denial of a Freedom of Information Law request

The County and its Assessment Review Commission [County] rejected a Freedom of Information Law [FOIL] request for certain records submitted by an individual [Petitioner]. County contended the records demanded were "intra-agency materials" within the meaning of FOIL and thus could be denied as "exempt" pursuant to Public Officers Law §87(2)(g). 

Petitioner initiated a CPLR Article 78 proceeding to compel the production of the records Petitioner sought, contending the records were factual data and not in the nature of an opinion, advice, or recommendation. Supreme Court granted Plaintiff's petition to produce the records demanded and County appealed . 

The Appellate Division affirmed the Supreme Court's ruling, with costs. In sustaining the Supreme Court's ruling the Appellate Division observed:

1. "FOIL imposes a broad duty on government agencies to make their records available to the public" citing Matter of Madeiros v New York State Educ. Dept., 30 NY3d 67, and Matter of Tuckahoe Common Sch. Dist. v Town of Southampton, 179 AD3d 929;

2. Such records court, are "presumptively open for public inspection and copying," unless they fall within an enumerated statutory exemption set out in Public Officers Law §87;

 N.B. There are other statutory exemptions to disclosing government records.*

3. "FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose" in support of a FOIL request as the underlying premise is that "the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government";

4. "FOIL's statutory exemptions to disclosure "are to be narrowly interpreted so that the public is granted maximum access to the records of government"; and 

5. It is the agency's burden "to demonstrate that the requested material 'falls squarely within a FOIL exemption".**

Rejecting County's reliance on exemptions authorized by FOIL with respect to the material sought in response to Plaintiff's FOIL application, the Appellate Division held that Supreme Court correctly determined that the information Plaintiff requested constituted "objective information," distinguishable from "opinions, ideas, or advice" and thus Supreme Court properly granted Plaintiff's Article 78 petition to compel County's production of the records Plaintiff requested.

* See, for example, Education Law, §1127 [Confidentiality of records] and §33.13, Mental Hygiene Law [Clinical records; confidentiality].

** See, also; Matter of Madeiros v New York State Educ. Dept., 30 NY3d at 74; and Matter of Baez v Brown, 124 AD3d 881, at 883.

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

 

September 21, 2023

Covid-19 - Tests and latest statistics reported

CNN reports the US government will relaunch a program to provide free Covid-19 home tests to Americans as new variants continue to alarm health officials. US households can order four free tests from Covidtests.gov starting Monday. The relaunch of the program comes as Covid-19 hospitalizations have been on the rise in the US since July, with weekly admissions now more than triple what they were two months ago.


Click the text highlighted in color for the most recent COVID-19 data posted on the Internet by NYPPL's COVID-19 consultant Isaac Michaels.

 


N.B.: Michaels updates the analyses routinely as the respective underlying data are updated. His website serves as a valuable resource for those interested in epidemiology and data science.

 

Click HERE to access Michaels' site on the Internet.

 

 


 

Two recent decisions published by the New York City Office of Administrative Trials and Hearings

Decision 1.

New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge [ALJ] Kara J. Miller considered the Agency's request that a community coordinator [CC] charged with violating a previously issued warning memo* and making threats of harm or violence to agency staff members be terminated from the position.

Judge Miller found that CC made threatening comments to his supervisors and colleagues, including referencing his access to guns and repeated attempts to find out when an office gathering would take place via emails sent to his supervisors and text messages to his personal therapist, which were subsequently forwarded to the Agency’s Equal Employment Opportunities Office. The text message referenced an upcoming office holiday party, instructed CC's therapist to look for him on the news, and stated, “The System has failed me so it will be punished.”

Finding CC guilty of the charge of making threats of harm or violence toward his co-workers, the ALJ recommend the Agency terminate CC’s employment. 

* ALJ Miller dismissed the disciplinary charge alleging CC violated "a warning memo", finding that the Agency failed to properly introduce the warning memo into evidence and failed to allege specifics as to how CC violated the warning memo.

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

 

Decision 2. 

OATH Administrative Law Judge Tiffany Hamilton recommended termination of employment for a correction officer [CO] who engaged in "undue familiarity" with individuals in custody and other related misconduct. 

Judge Hamilton found:

[1] CO passed notes between a male person in custody (BL), and a female person in custody (TG), who occupied holding pens across the hallway from one another;

[2] failed to look inside BL’s holding pen when removing TG from that pen approximately 50 minutes later; and

[3] Failed to submit a report regarding sexual contact between the said two persons in custody; and

[4] CO did not deny the alleged misconduct charged but argued that her actions did not warrant termination.

The ALJ, noting that CO's remorse for her conduct and the absence of CO being the subject of any prior disciplinary action in the record, nevertheless concluded that termination was warranted because CO's conduct demonstrated "several fundamental lapses in judgment, an inefficient performance of duties, and untrustworthiness" and recommended CO impose the penalty of dismissal from service as requested by the Appointing Authority.

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

 _________________

 A Reasonable Disciplinary Penalty - For information and access to a free excerpt of the material presented in this New York Public Personnel Law e-book, click HERE

 

 

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