Appellate Division opines that the penalty of dismissal from employment as a police officer for use of cocaine does not shock the conscience and is not disproportionate to the misconduct

The New York City Police Department's Disciplinary System Penalty Guidelines provide for termination from employment as the presumptive penalty for a positive drug test for cocaine and ingestion of a banned substance*

Matter of Santos v Sewell

2024 NY Slip Op 03556

Decided on June 27, 2024

Appellate Division, First 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 and Entered: June 27, 2024
Before: Moulton, J.P., Friedman, Kapnick, Shulman, Michael, JJ.

Index No. 151966/23 Appeal No. 2573 Case No. 2023-04620

[*1]In the Matter of Helder Santos, Petitioner-Appellant,

v

Keechant L. Sewell etc., et al., Respondents-Respondents.

Worth, London & Martinez, LLP, New York (Stuart Gold of counsel), for appellant.

Sylvia O. Hinds-Radix, Corporation Counsel, New York (MacKenzie Fillow of counsel), for respondents.

Judgment (denominated an order) Supreme Court, New York County (Frank P. Nervo, J.), entered August 18, 2023, which, to the extent appealed as limited by the briefs, denied the petition to annul respondents' November 3, 2022 determination terminating petitioner's employment as a police officer and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

The penalty of dismissal from employment as a police officer for use of cocaine does not shock the conscience and is not disproportionate to the misconduct (Matter of Gordon v Brown, 84 NY2d 574, 580 [1994]). This Court has upheld this penalty numerous times over the years in similar situations (see Matter of Quire v City of New York, 189 AD3d 467, 468 [1st Dept 2020]; Matter of Lumezi v Bratton, 147 AD3d 566 [1st Dept 2017]; Matter of Jones v Kelly, 111 AD3d 415 [1st Dept 2013]).

Petitioner contends that respondents and the court did not consider the harmful effect on his family of termination of his employment and loss of pension benefits under circumstances where he asserts the drug test results were in doubt. However, the Police Commissioner found that there was no reasonable dispute concerning the test results and in matters of police discipline, great leeway is accorded the Police Commissioner's determination concerning appropriate punishment because, the Commissioner, not the courts, are accountable to the public for the integrity of the police force (Trotta v Ward, 77 NY2d 827, 828 [1991]). Moreover, the NYPD Disciplinary System Penalty Guidelines provide for termination from employment as the presumptive penalty for a positive drug test for cocaine and ingestion of a banned substance. The Police Commissioner expressly stated that she had considered the totality of the circumstances and issues in making her determination, contrary to petitioner's claim.

We have considered petitioner's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: June 27, 2024

* A Reasonable Disciplinary Penalty Under the Circumstances - an e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service of the State of New York and its political subdivisions in instances where the employee has been found guilty of misconduct or incompetence. For more information and access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/7401.html

Recent decisions involving disciplinary charges served on employees of the City of New York posted on the Internet by the New York City Office of Administrative Trials and Hearings

Employee alleged with having falsifying certain of his time and attendance records:

New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge [ALJ] Charlotte Davidson recommended termination of employment of  an investigator [Respondent] who, from December 30, 2019 to January 15, 2024, was found to have violated the Employer’s policies by charging sick leave credits  while on annual leave to extend his vacations.  

Respondent was entitled to unlimited sick leave but could be credited with a finite amount of accumulated annual leave credits and any unused annual leave credits would be paid to him upon his leaving his employment with the City. 

Although some of the dates of Respondents alleged misconduct were beyond the 18-month statute of limitations for bringing disciplinary charges, Judge Davidson determined that such otherwise untimely charges filed against the Respondent fell under the criminal exception for bringing such charges.

Such alleged misconduct, if proven true, would constitute the crime of official misconduct because Respondent received a benefit by failing to accurately report certain of Respondent's absences as "sick time" and obtain approval to use sick leave credits in place of annual leave credits for such absences from work by falsely reporting such absences to the Department .

Noting Respondent’s position as a uniformed investigator entrusted with highly confidential information and investigations of potentially criminal matters, the ALJ held that Respondent must be held to a "high standard of integrity". Accordingly,  Judge Davidson found that Respondent's lack of disciplinary record and satisfactory job performance were insufficient to mitigate such dishonesty and abuse of the use of sick leave credits by Respondent. 

Click HERE to access Judge Davidson's findings and recommended disposition of this disciplinary action posted on the Internet.

Employee served with disciplinary charges alleging he sexually harassed coworkers:

OATH's ALJ Michael D. Turilli recommended termination of the employment of an employee [Respondent] found guilty of disciplinary charges alleging acts of sexual harassment of coworkers. 

The ALJ denied the pro se Respondent’s motion to dismiss the charges for lack of jurisdiction and found that Respondent had sexually harassed the three coworkers in multiple incidents over the course of a year by making offensive remarks and obscene gestures, displaying a sexually explicit photograph, and making unwanted advances. 

The ALJ found that the coworkers had provided credible and compelling testimony, which was corroborated by contemporaneous reports and were consistent with previous statements alleging such misbehavior. Indeed, the Administrative Law Judge found that Respondent’s own witness provided further corroboration of the alleged misconduct, testifying that two complainants had reported Respondent’s behavior to her. 

Notwithstanding the Respondent’s 20-plus years of service and lack of any history of disciplinary action having been taken against Respondent in the past, Judge Turilli concluded that the penalty of termination from employment would be the appropriate penalty under the circumstances and recommended the imposition of the penalty of dismissal of the Respondent to the Appointing Authority. 

Click HERE to access Judge Turilli's findings and recommended disposition of this disciplinary action posted on the Internet.

Notices posted by the New York Department of Civil Service on June 25, 2024

Advisory Memorandum 24-05, Examination and List Numbers.

The text of Advisory Memorandum 24-05 is posted on the InternetI at:
https://www.cs.ny.gov/ssd/Manuals/SPMM/2800AutoPositPersnl/Advisory%20Memo%2024-05.htm.

To print Advisory Memorandum 24-05, a version in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-05.pdf.

To view previous Advisory Memoranda issued by the Department of Civil Service, visit: https://www.cs.ny.gov/ssd/Manuals/SPMM/

 

General Information Bulletin 24-02, Legal Assistant Traineeship Coursework Requirements.

The text of General Information Bulletin 24-02 is posted on the Internet at:
https://www.cs.ny.gov/ssd/Manuals/SPMM/GIBS/GIB24-02.cfm.

To print General Information Bulletin 24-02, a version in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/GIB24-02.pdf.

To view previous General Information Bulletins issued by the Department of Civil Service, visit: https://www.cs.ny.gov/ssd/gibs.cfm

 

Only overtime payments paid pursuant to a comprehensive written overtime plan may be included in determining an eligible employee's pension benefit at the time of his or her retirement

Although General Municipal Law §90 provides for the payment of overtime to eligible employees of a political subdivision of the State, such payments must be made pursuant to an overtime plan setting out in detail the terms, conditions and remuneration for such overtime employment in order for such payments to be considered by the retirement system in its  determining the employee's final average salary to be used to set the pension benefit of his or her retirement allowance.

"Matter of Gallante v DiNapoli

2024 NY Slip Op 03370

Decided on June 20, 2024

Appellate Division, Third 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 and Entered:June 20, 2024

CV-23-1408

[*1]In the Matter of Tory Gallante, Petitioner,

v

Thomas P. DiNapoli, as State Comptroller, et al., Respondents.

Calendar Date:April 25, 2024
Before:Egan Jr., J.P., Aarons, Fisher, McShan and Mackey, JJ.

Gleason, Dunn, Walsh & O'Shea, Albany (Ronald G. Dunn of counsel), for petitioner.

Letitia James, Attorney General, Albany (Kevin C. Hu of counsel), for respondents.

Aarons, J.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Comptroller denying petitioner's application for recalculation of his final average salary.

After a 30-year career as a firefighter, petitioner retired as Chief of the Arlington Fire District in March 2019 and began collecting retirement benefits. In 2020, the New York State and Local Retirement System notified petitioner that, after receiving salary information from the District, certain earned compensation would be excluded from the calculation of his final average salary. Accordingly, petitioner's monthly retirement benefit amount was reduced, and petitioner was advised that he would be charged with an overpayment. Petitioner applied for a hearing and redetermination of his retirement benefits (see Retirement and Social Security Law §§ 74 [d]; 374 [d]). Following a hearing, the Hearing Officer determined that the Retirement System properly excluded petitioner's overtime pay, a staff development stipend and a portion of holiday pay from his final average salary. Respondent Comptroller adopted the Hearing Officer's findings of fact and conclusions of law and denied petitioner's application, prompting this CPLR article 78 proceeding.

The Comptroller is vested with the exclusive authority to resolve applications for retirement benefits and the "determination must be upheld if [the] interpretation of the controlling retirement statute is reasonable and the underlying factual findings are supported by substantial evidence" (Matter of Schwartz v McCall, 300 AD2d 887, 888 [3d Dept 2002] [internal citations omitted]; accord Matter of O'Brien v DiNapoli, 116 AD3d 1124, 1125 [3d Dept 2014]). "Consistent with the provisions of the Retirement and Social Security Law, a member's retirement benefit is based upon his or her final average salary, i.e., the average salary earned by such member during any three consecutive years which provide the highest average salary" (Matter of Glozek v DiNapoli, 221 AD3d 1231, 1233 [3d Dept 2023] [internal quotation marks, ellipsis and citations omitted]; see Retirement and Social Security Law § 2 [9]).

Regarding the payment of overtime, General Municipal Law § 90 authorizes governing boards to provide for the payment of overtime compensation to public officers and public employees who "are required to work in excess of their regularly established hours of employment" and mandates that the payments be considered as salary "for any of the purposes of any pension or retirement system." This language must be strictly construed in view "of the constitutional provision against the expenditure of public funds absent express statutory authority" (Conrad v Regan, 175 AD2d 629, 629-630 [4th Dept 1991], lv denied 78 NY2d 860 [1991]; see NY Const, art VIII, §1; Matter of Murray v Levitt, 47 AD2d 267, 269 [3d Dept 1975], lv denied 37 NY2d 707 [1975]). Consequently, "overtime [*2]payments are not duly authorized or considered as salary within the meaning of General Municipal Law § 90 unless paid pursuant to 'an overtime plan setting forth in detail the terms, conditions and remuneration for such employment' " (Matter of Shames v Regan, 132 AD2d 743, 744 [3d Dept 1987] [emphasis omitted], quoting Matter of Murray v Levitt, 47 AD2d at 269; see Matter of Mowry v New York State Employees' Retirement Sys., 54 AD2d 1062, 1063 [3d Dept 1976]).

Petitioner first contends that the Comptroller's interpretation of General Municipal Law § 90 is unreasonable. We disagree. At the hearing, the assistant director of the Retirement System's Benefit Calculation and Disbursements Bureau explained that, under General Municipal Law § 90, salary may only include overtime payments that are part of a comprehensive written overtime plan. To determine whether petitioner's employment agreements with the Arlington Fire District Board of Fire Commissioners met the requirements of such a plan, the Retirement System considered five factors: (1) the amount of compensation to be paid; (2) whether there is a cap on the compensation; (3) whether the plan provides when and how the payments are made; (4) whether approval is required prior to the overtime being performed; and (5) whether the plan provides that the pay is for work performed beyond the regular workday. In our view, these factors rationally correspond to statutory language authorizing overtime for employees who "are required to work in excess of their regularly established hours of employment" at either their regular rate of pay or some other rate set by the governing board (General Municipal Law § 90 [emphasis added]; see Matter of Bascom v McCall, 221 AD2d 879, 880 [3d Dept 1995]; Conrad v Regan, 175 AD2d at 629-630; Matter of Shames v Regan, 132 AD2d at 745).

Next, and contrary to petitioner's view, the Comptroller rationally excluded petitioner's overtime payments because the employment agreements (i) did not prescribe when and how overtime would be worked, (ii) did not identify petitioner's regularly scheduled hours of employment, and (iii) did not indicate whether prior approval was required for the performance of overtime work. The agreements established that petitioner's "[w]orking hours will be 40 hours per week on a five day a week basis." Although "[t]he typical work week is Monday through Friday," petitioner had discretion to vary his weekly schedule "for the best use to fit the District's needs." Further, neither the agreements nor the Board's eight-hour workday resolution specified which hours of the day petitioner was required to work. Taken together, the Comptroller rationally concluded that petitioner did not have "regularly established hours" within the meaning of General Municipal Law § 90.

As to overtime requirements, the agreements specified that any work in excess of 40 hours per week would be paid with compensatory time. According to the record and representations at oral [*3]argument, compensatory time was generally calculated at petitioner's hourly rate of pay. Petitioner testified that he earned compensatory time for off-hours meetings and non-emergency work. Emergency call-back hours — time spent fighting fires outside of the regular workday — were compensated at time and a half pay. Although these provisions authorized petitioner to work overtime, they did not specify any terms or conditions that would require him to do so (see General Municipal Law § 90; Conrad v Regan, 175 AD2d at 629-630). Given the absence of a provision for prior approval — a finding that petitioner does not dispute — the Comptroller appropriately found that the agreements do not cover when or how petitioner worked overtime.^[FN1] In sum, because the employment agreements appear to have given petitioner a "free hand in determining when and for how long [he] would work" (Matter of Murray v Levitt, 47 AD2d at 269), the Comptroller's determination excluding petitioner's overtime payments from his final average salary is reasonable, supported by substantial evidence and will not be disturbed (see Matter of Shames v Regan, 132 AD2d at 745; Matter of Mowry v New York State Employees' Retirement Sys., 54 AD2d at 1063).

Petitioner also challenges the exclusion of the increased compensation paid to him in 2019 for staff development from his final average salary. "Pursuant to the Retirement and Social Security Law, the salary base used to compute retirement benefits shall not include . . . compensation paid in anticipation of retirement" (Matter of Franks v DiNapoli, 53 AD3d 897, 898 [3d Dept 2008] [internal quotation marks and citation omitted]; see Retirement and Social Security Law § 431 [3]; Matter of Smith v DiNapoli, 167 AD3d 1208, 1209-1210 [3d Dept 2018]). "In determining what constitutes . . . compensation paid in anticipation of retirement, we must look to the substance of the transaction and not to what the parties may label it" (Matter of Green v Regan, 103 AD2d 878, 878-879 [3d Dept 1984]; see Matter of Smith v DiNapoli, 167 AD3d at 1210; Matter of Chichester v DiNapoli, 108 AD3d 924, 925 [3d Dept 2013]). The record reflects that petitioner informed the Board in 2018 that he was planning on retiring. By stipulation entered into in January 2019, the Board increased petitioner's hourly rate of pay by $15 effective January 7, 2019 to March 31, 2019. According to the stipulation and testimony, the extra compensation was to train his successor — a newly appointed Deputy Chief — and staff before he retired and took with him all of his institutional knowledge. Yet, the record shows petitioner's job already included planning and directing the training of staff and that petitioner had not received staff development stipends in the past. Further, the stipend was not limited to the time spent on work it was intended to compensate — it was essentially a $15 per hour raise. Accordingly, substantial evidence supports the Comptroller's determination that the [*4]January 2019 pay increase constituted compensation in anticipation of retirement and was properly excluded from the calculation of petitioner's final average salary (see Matter of Chichester v DiNapoli, 108 AD3d at 926; Matter of Franks v DiNapoli, 53 AD3d at 898).

Finally, the Retirement System concedes, and we agree, that the calculation of petitioner's final average salary improperly failed to take into account all 144 hours of his earned holiday pay. Accordingly, the matter must be remitted for a recalculation of petitioner's final average salary that includes 144 hours of holiday pay. Petitioner's remaining contentions, to the extent not specifically addressed, have been examined and found to be without merit.

Egan Jr., J.P., Fisher, McShan and Mackey, JJ., concur.

ADJUDGED that the determination is modified, without costs, by annulling so much thereof as excluded certain holiday pay from the calculation of petitioner's final average salary; petition granted to that extent and matter remitted to respondent Comptroller for further proceedings not inconsistent with this Court's decision; and, as so modified, confirmed.

Footnotes

Footnote 1: Petitioner testified that, under the District's time tracking system, he would fill out a form indicating the overtime he had worked on a given day either immediately after completing the work or the day after. According to petitioner, the Board had the option of reviewing payroll records at their twice-monthly meetings after the payroll process was complete. In other words, this system "does not set out any procedure for the regulation of overtime" worked by petitioner (Matter of Shames v Regan, 132 AD2d at 745), and therefore does not affect our conclusion.

 

New York State Comptroller DiNapoli releases municipal and school district audits

On June 24, 2024, New York State Comptroller Thomas P. DiNapoli announced the following local government and school district audits were issued.

Town of Keene – Records and Reports (Essex County)  The supervisor did not maintain complete, accurate and timely accounting records. As a result, the board lacked reliable records and reports to manage the town’s financial operations, account balances were inaccurate and certain revenues and expenditures were not reported in the annual financial report. Of the 20 journal entries reviewed, six were not properly recorded, six were not supported and eight were not recorded in a timely manner. In addition,  no one independently reviewed and approved entries. Bank reconciliations also were generally not prepared or provided to the board in a timely manner and adjusted bank balances did not agree with general ledger cash balances for 55 of 133 bank reconciliations. The supervisor also did not provide adequate monthly financial reports to the board and the board did not annually audit the supervisor’s records, as required.

Town of Bergen – Town Supervisor (Genesee County)  The supervisor generally maintained complete and accurate accounting records but needs to provide more oversight over the individuals carrying out recordkeeping duties. Furthermore, the supervisor did not annually submit sufficient accounting records to the board for audit and while he filed the annual financial report (AFR) in a timely manner, it was not accurate. The supervisor also approved bank reconciliations without determining whether they were performed correctly and without verifying that cash balances in the accounting records were accurate and overstated cash by $747,000 in the 2022 AFR. In addition, the supervisor did not perform a periodic review of all journal entries and financial transactions as required and the accountant recorded financial transactions without oversight.

North Babylon Union Free School District – Online Banking (Suffolk County)  Auditors determined that online banking transactions were appropriate, but the board and district officials did not meet all the requirements of state law and must improve controls over online banking to ensure these transactions are secure. In addition, auditors found that district officials did not enter into an adequate written bank agreement with their banking institution, and the board did not adopt an online banking policy. Employees who performed online banking activities did not receive cybersecurity awareness training. The district’s acceptable use policy was insufficient and not communicated to employees who performed online banking transactions.

Whitney Point Central School District – Information Technology (IT) (Broome County)  District officials did not adequately manage nonstudent network user accounts, adopt an IT contingency plan and were unaware of all the network users that had access to the district’s network, leading to an increased risk it could suffer a serious interruption to operations and face a potential inability to communicate during a disruption. In addition to sensitive IT control weaknesses that auditors confidentially communicated to officials, district officials did not disable 19 nonstudent network user accounts that were not needed or used in more than five years.

South Jefferson Central School District – Payroll (Jefferson County)  Auditors reviewed salaries and wages paid to 40 employees totaling $471,526 to determine whether they were accurately paid. Auditors also reviewed payroll change reports for two months during the audit period to determine whether salary and wage increases from one paycheck date to the next paycheck date for 76 employees totaling $126,395 were authorized and supported by time records. Except for minor discrepancies, the employee salaries and wages reviewed were accurately paid and the payroll increases were calculated correctly and supported by adequate time records.

KIPP Troy Prep Charter School – Resident Tuition Billing and Collections (Rensselaer County)   School officials and staff accurately billed and collected resident district tuition for the sample of 50 students reviewed. They also accurately recorded and deposited intact the 30 collections reviewed. However, they did not deposit collections in a timely manner. Officials and staff did not deposit and record district tuition collections totaling $5.5 million within three days, as required by the school’s policy. Because school officials did not deposit collections as required, the school did not have access to the undeposited funds, and the risk of loss, diversion or theft of school funds was increased.  

The United Federation of Teachers withdraws its support of New York City's effort to move New York City's retired employees to privately-managed Medicare Advantage health plans

On June 23, 2024, the United Federation Teachers President, Michael Mulgrew, advised the New York City Municipal Labor Committee on Sunday that the Federation was withdrawing its support of the City's Medicare Advantage proposal and from healthcare negotiations with the Municipal Labor Committee on behalf of its members it represents in the collective bargaining pursuant to Article 14 of the Civil Service Law.

Marianne Pizzitola, President of NYC Organization of Public Service Retirees, commented that “For three years, an ad-hoc coalition of retirees ... have been continuously successful – winning 9 victories over three separate lawsuits", blocking the Committee's efforts to unilaterally impose its proposed Medicare Advantage plan on already retired former employees of the City of New York City.

A school's district's providing a per diem substitute paraprofessional educator a reasonable assurance of performing services for the school district in the upcoming academic year is not a guarantee of such employment

§590 (11) of New York State's Labor Law bars nonprofessionals who are employed by educational institutions from receiving unemployment insurance benefits during the time between two academic periods if they have received a reasonable assurance of continued employment. A "reasonable assurance" of continued employment has been interpreted as a representation by the employer that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period.

  

Matter of Alongi (City Sch. Dist. of the City of N.Y.--Commissioner of Labor)

2024 NY Slip Op 02957

Decided on May 30, 2024

Appellate Division, Third 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 and Entered:May 30, 2024

CV-23-0618

[*1]In the Matter of the Claim of Diane Alongi, Appellant. The City School District of the City of New York, Respondent. Commissioner of Labor, Respondent.

Calendar Date:April 23, 2024
Before:Pritzker, J.P., Reynolds Fitzgerald, Ceresia, McShan and Mackey, JJ.

 

Diane Alongi, New York City, appellant pro se.

Letitia James, Attorney General, New York City (Camille J. Hart of counsel), for Commissioner of Labor, respondent.

Mackey, J.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 25, 2022, which, upon reopening and reconsideration, adhered to its prior decision ruling that claimant was ineligible to receive unemployment insurance benefits because she was unable to file a valid original claim.

Claimant worked as a per diem substitute paraprofessional for the employer beginning in 2012 and was notified of work available at the employer's public schools through a registry known as SubCentral. SubCentral maintained a record of, among other things, each substitute paraprofessional's availability and notified such individuals of available work via an automated telephone system, its website and/or administrator-initiated assignments, the latter of which occurred through direct contact with a school administrator who, in turn, would enter the assignment into SubCentral.

The 2020-2021 academic year consisted of 182 days; claimant was offered 182 days of work through SubCentral and worked 144 days as a per diem substitute paraprofessional — accepting all of her assignments through the direct-contact method. At the start of the academic year, the pay rate was $151.82 per day and, beginning May 14, 2021, the pay rate increased to $166.67 per day pursuant to a contract applicable to all per diem substitute paraprofessionals in the school district.

By letter dated June 17, 2021, claimant was advised that SubCentral would continue to be used to grant her assignments during the upcoming 2021-2022 academic year and that the "economic terms and conditions" for the impending school year were expected "to be substantially the same" as had existed in the preceding year. Although the letter did not specify claimant's rate of pay, such rate was governed by the existing contract ($166.67/day), and claimant was expressly advised that the employer anticipated that "there [would] be as much day-to-day work for [s]ubstitute [p]araprofessionals during the 2021-2022 [s]chool [y]ear, as was available in the 2020-2021 [s]chool [y]ear." Claimant acknowledged receiving was what denominated as a reasonable assurance letter, electronically signed such letter on June 28, 2021 and returned to work during the 2021-2022 academic year.

By notice of determination dated November 10, 2021, the Department of Labor found claimant to be ineligible to receive unemployment insurance benefits because she had a reasonable assurance of performing services as a per diem substitute paraprofessional during the 2021-2022 academic year.^[FN1] When the employer failed to appear for the scheduled hearing, an Administrative Law Judge overruled the initial determination. The employer's subsequent application to reopen was granted and, following a hearing, the initial determination was sustained and claimant was found to be ineligible for benefits because she had received a reasonable assurance of performing services for the employer in the upcoming academic year. Upon claimant's administrative appeal, the [*2]Unemployment Insurance Appeal Board affirmed. By decision filed October 25, 2022, the Board granted claimant's application for a reopening and reconsideration and adhered to its prior decision, and this appeal by claimant ensued.^[FN2]

"Labor Law § 590 (11) . . . precludes nonprofessionals who are employed by educational institutions from receiving unemployment insurance benefits during the time between two academic periods if they have received a reasonable assurance of continued employment" (Matter of Enman [New York City Dept of Educ.-Commissioner of Labor], 161 AD3d 1368, 1369 [3d Dept 2018] [citations omitted], lv denied 32 NY3d 902 [2018]; accord Matter of Johnson [Commissioner of Labor], 222 AD3d 1115, 1118 [3d Dept 2023]). "A reasonable assurance has been interpreted as a representation by the employer that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period" (Matter of Overacker [Churchville-Chili Cent. Sch. Dist.-Commissioner of Labor], 213 AD3d 1127, 1128 [3d Dept 2023] [internal quotation marks and citations omitted]; accord Matter of Johnson [Commissioner of Labor], 222 AD3d at 1119; Matter of Barnett [Broome County Community Coll.-Commissioner of Labor], 182 AD3d 763, 763-764 [3d Dept 2020], lv denied 35 NY3d 1077 [2020]). "Notably, the question of whether a claimant received a reasonable assurance of reemployment for the following academic year is a question of fact and, if the Board's findings in that regard are supported by substantial evidence, they will not be disturbed" (Matter of Gracy [Commissioner of Labor], 182 AD3d 871, 872 [3d Dept 2020] [internal quotation marks and citations omitted]; see Matter of Overacker [Churchville-Chili Cent. Sch. Dist.-Commissioner of Labor], 213 AD3d at 1128).

Contrary to claimant's assertion, a reasonable assurance of reemployment is not a guarantee (see Matter of Enman [New York City Dept. of Educ.-Commissioner of Labor], 161 AD3d at 1370), and the June 2021 letter sent to claimant upon the employer's behalf clearly indicated that work would be available for claimant in her capacity as a per diem substitute paraprofessional during the upcoming 2021-2022 academic year and that the "economic terms and conditions" for the impending school year were expected "to be substantially the same" as had existed in the preceding year (see Matter of Gracy [Commissioner of Labor], 182 AD3d at 872-873). This letter, which claimant received and electronically signed, further advised that claimant's name would remain on SubCentral for purposes of receiving her assignments. Such proof, "together with the testimony concerning the per diem rate of pay for the [2021-2022] academic year and number of potential work days available, provides substantial evidence supporting the Board's finding that the employer provided claimant with a reasonable assurance of continued employment" (id[*3]. at 873; see Matter of Johnson [Commissioner of Labor], 222 AD3d at 1119; Matter of Overacker [Churchville-Chili Cent. Sch. Dist.-Commissioner of Labor], 213 AD3d at 1128-1129; Matter of Enman [New York City Dept. of Educ.-Commissioner of Labor], 161 AD3d at 1370-1371; Matter of Cieszkowska [Commissioner of Labor], 155 AD3d 1502, 1502-1503 [3d Dept 2017]). Accordingly, we discern no basis upon which to disturb the Board's decision. Claimant's remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit.

Pritzker, J.P., Reynolds Fitzgerald, Ceresia and McShan, JJ., concur.

ORDERED that the decision is affirmed, without costs.

Footnotes

Footnote 1: It is not clear from the record when claimant applied for unemployment insurance benefits. The notice of determination found claimant to be ineligible effective June 28, 2021, but claimant purports to have applied for benefits in 2020.

Footnote 2: Claimant did not appeal from the denial of her subsequent applications for a reopening and reconsideration, and claimant was not charged with a recoverable overpayment of the benefits she received.

NYPPL personnel law e-books available from BookLocker

The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State and its political subdivisions set out in an e-book. For more information and access to a free excerpt from this e-book, click here: http://booklocker.com/books/5215.html

A Reasonable Disciplinary Penalty Under the Circumstances - an e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service of the State of New York and its political subdivisions in instances where the employee has been found guilty of misconduct or incompetence. For more information and access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/7401.html

The Layoff, Preferred List and Reinstatement Manual - an e-book reviewing the relevant New York State laws, rules and regulations, and selected court and administrative decisions. For more information and access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/5216.html

Disability Benefits for New York State and municipal public sector personnel - an e-book focusing on administering the Retirement and Social Security Law, the General Municipal Law Sections 207-a/207-c and similar laws providing disability benefits to employees of the State of New York and its political subdivisions. For more information and access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/3916.html

Selected links to items concerning government operations posted on the Internet during the week ending June 21, 2024

311’s Culture Shift in City Communications Now Aided by AI Artificial intelligence isn’t everywhere yet, but several local governments around the country have either discovered how it can further enable modern 311 or are considering how it could. READ MORE

9 Munis Named What Works Cities for Data-Driven Governance Results for America has recognized nine municipalities for using data to inform policy and improve government service delivery to residents. To date, 83 cities have received the What Works Cities Certification. READ MORE

A Role Model for the Public Pension Community Chris Ailman, the chief investment officer for the giant California teachers’ pension fund, is retiring. He showed the way in navigating a landscape of complexity, hazards and challenges to achieve steady investment success. READ MORE

Alternative 911 Responses Can Build Trust and Improve Outcomes The vast majority of calls are about distress, not violent crime. Dispatching social workers and other professionals rather than law enforcement can improve outcomes in many cases. READ MORE

America's Cable Industry Is on a Mission to Connect Every Community High-speed internet access has the power to open up a world of opportunity, and we're committed to connecting every community. [CONTENT PROVIDED BY NCTA] LEARN MORE

Backlash Against DEI Spreads to More States Nearly two dozen states controlled by Republicans have prohibited or modified diversity, equity and inclusion programs, primarily in public university systems. One new law led the University of Texas system to eliminate 300 positions. READ MORE 

Backroom Deals Led to N.J. Gutting Its Transparency Law Critics say recent changes will make corruption more likely. Transparency requirements were traded away in a deal that included a gas tax increase and updates to affordable housing rules. READ MORE

Build a Secure AI Future for Your Agency Discover how utilizing AI and security can deliver new value to your organization. Chart a clear path toward improving constituent outcomes with this step-by-step guide. [CONTENT PROVIDED BY GOOGLE PUBLIC SECTOR] DOWNLOAD THE WHITEPAPER

Build Responsible AI into App Development Learn how to apply Responsible AI best practices to build intelligent applications that improve constituent services with security and compliance at the foundation. [CONTENT PROVIDED BY MICROSOFT] READ THE GUIDELINES

Built to support mission response. The advanced network and technology for first responders. [CONTENT PROVIDED BY VERIZON] LEARN MORE

CA to Bar Community Colleges from Replacing Profs With AI A bill approved by the state Senate this week would specify that community college courses must be taught by qualified human instructors, although it says nothing about using AI for grading or tutoring. READ MORE

California Sees Nation’s First Charges for Telehealth Prescription Scams Two executives at Done, a California-based telehealth company, were indicted for allegedly scheming to provide easy access to Adderall and other stimulants to patients who didn’t need them. READ MORE

City of Pittsburgh Transitions Online Permitting Platform to Eproval The change was made to better support citizens and city officials in the permit application process. [CONTENT PROVIDED BY EPROVAL] READ MORE

Closed Monday, Cleveland City Hall Confirms Ransomware Attack A spokeswoman for Mayor Justin Bibb said the breach has been “contained” but couldn’t say whether the city has agreed to, or will consider, paying the ransom. The city is working with the Ohio National Guard and the FBI to investigate. READ MORE

Congress Probes Microsoft on Exchange Breach, Cyber ‘Failures’ The company CEO acknowledged mistakes and said it was now making cybersecurity part of all employees’ responsibilities. Some legislators were skeptical and questioned how to create a more secure landscape. READ MORE

Cybersecurity, Deepfakes and the Human Risk of AI Fraud AI-generated cyber attacks and deepfakes mean new risks and new ways to fight them. "Human risk management" is a term to describe how organizations train their staff to detect these evolving threats. READ MORE

Data Helps Shine a Light on Broadband Equity in Cities Some 75 percent of low-income residents in Philadelphia, for example, say that they cannot afford to pay more than $21 a month for a broadband subscription. READ MORE  

Developing Safe, Secure, and Trustworthy AI At Microsoft, we are committed to empowering Responsible AI. Read the inaugural Reponsible AI Transparency Report to learn how we build generative AI applications, support our customers in their AI journeys, and evolve our practices. [CONTENT PROVIDED BY MICROSOFT ] READ THE REPORT

Federal Money at Hand, Colorado Poised to Hear from ISPs Federal approval of the state’s Broadband Equity, Access and Deployment program smooths the way for the grant application process to open to Internet service providers, expected in late summer. READ MORE

General Services Administration Launches AI-Focused Cohort The federal oversight agency has launched its first cohort focused on artificial intelligence for its Presidential Innovation Fellows program, aiming to create a talent pipeline for AI in government. READ MORE

Immigration Detainments Jump More Than 50 Percent in Georgia The state is jailing 54 percent more individuals for immigration violations than last year, moving it to fifth most active among states. Last month, Gov. Brian Kemp signed a bill that mandates greater cooperation between local law enforcement and federal immigration agencies. READ MORE

Last Resort Property Insurance Is a Disaster for Homeowners Insurance companies have a safety valve that can spare them some of the costs of disaster relief — but it comes at the expense of their customers. READ MORE 

Los Angeles Schools Consider Cellphone Ban The school board is expected to vote Tuesday to ban student use of phones throughout the school day, citing distraction. The policy would take effect next year. READ MORE

Maryland Gov. Pardons 175K for Marijuana Possession Monday’s action was one of the largest mass pardons in U.S. history. Maryland voters legalized marijuana two years ago. READ MORE

Maryland Launches Push to Widen Accessibility to State Tech The state has brought together agency leaders to figure out ways to make its website and digital services more accessible to people with disabilities. The work reflects wider trends in gov tech, including public safety. READ MORE

Midyear Check-In: Top Cybersecurity Predictions for 2024 The Top 24 Security Predictions for 2024: which are  are on track and which seem off base — so far? And what’s new as we hit the halfway point in the year? READ MORE 

Midyear Gov Tech Market Update — ICYMI Govtech Ventures’ Rachel Stern and Shea and Company’s Jeff Cook discuss the state of the gov tech market during the first half of 2024. READ MORE

Minnesota’s Inadequate Oversight Led to $250M Meal Program Fraud The state’s Department of Education failed to act on warning signs of fraud at the nonprofit Feeding Our Future and failed, on numerous occasions, to monitor federal dollars. READ MORE

Modernizing Spaces for a Hybrid Workforce Wake County, the largest county in North Carolina at over 1 million residents, is home to North Carolina State University as well as Raleigh, the state capital. The county is known for its innovative spirit and has been modernizing to meet the increasing demand for remote work. The county recognized the need for a more seamless approach to collaboration between its in-office and remote teams. DOWNLOAD

Montana Creates Emergency ‘Drive-Through’ Blood Pickups for Rural Ambulances Given driving distances in the vast state, trauma cases are sometimes transported for more than an hour. One physician compares the first-in-the-nation service to fast-food drive-throughs. READ MORE

N.Y. Congestion Pricing Reversal Hits Transit in the Wallet As ridership continues to lag amid a stubbornly slow recovery from the COVID-19 pandemic, cities experiment with free rides and micromobility to prove public transit’s worth in worsening financial conditions. READ MORE

New Vehicle-Tracking AI Aims to Address Privacy Concerns The company Veritone is set to release a new tool to help law enforcement track vehicles, part of a broader offering designed to safeguard against facial recognition bans. A company executive explains the thinking. READ MORE

Nonprofit Offers Free Cybersecurity Consulting to Public Sector The Center for Internet Security’s Cybersecurity Advisory Services Program is aimed at helping strengthen organizations that are involved in elections, health care, education and water utilities. READ MORE

Northern Arizona University Offers Guidance on AI for K-12 The university's Arizona Institute for Education and the Economy reviewed federal guidance, met with leaders across the U.S., surveyed Arizona educators, and drafted a guide to AI for teachers, parents and administrators. READ MORE

Oregon Wants to Invest in Transit. But With What Money? The current transportation budget falls short of the state’s litany of needs. As lawmakers prepare to craft a major transit package next session, they will need to figure out how to increase revenue streams despite logistical and political challenges. READ MORE

Orlando Names Deputy Chief Information Officer as New CIO Roberto Lopez has been with the city more than 20 years, much of that as a computer operations manager. He replaces Rosa Akhtarkhavari, who stepped down earlier this month after more than a decade as CIO. READ MORE

Phishing Attack May Impact L.A. County Public Health Data The February cyber attack may have compromised personal information belonging to roughly 200,000 clients, employees and others, the Los Angeles County Department of Public Health said last week. READ MORE

Revolutionizing Digital Identity Verification Discover the latest trends in digital identity and fraud prevention. Get the comprehensive study now. ACCESS THE FULL REPORT

San Jose Approves Encampments to Move 500 Homeless People The City Council has approved a plan to move individuals now living along waterways to sites throughout the city over the coming year. The idea is encountering pushback from community members. READ MORE 

Secure AI Leadership for the Public Sector Securely harness the power of AI to enhance public services and streamline operations. Chart a clear path toward improving constituent outcomes with this step-by-step guide. DOWNLOAD THE WHITEPAPER

See How City of Pittsburgh Officials Are Using Eproval to Streamline Their Permitting Process “Eproval transforms our entire permitting process into one that is more intuitive and straightforward,” says Brian Katze, Manager of the Office of Film and Event Management. [CONTENT PROVIDED BY EPROVAL] 

SEE HOW THEY'RE DOING IT

Somebody Dies of an Overdose Every Five Minutes. States Could Do Much More to Lower That Toll. Instead of indulging in the sugar high of tough-on-crime legislation, lawmakers should provide the treatment solutions that dramatically reduce deaths, especially in correctional settings. READ MORE

State Exec Named California’s Next Chief Data Officer Gov. Gavin Newsom has named Jason Lally, deputy director of Data Services and Engineering at the state Office of Data and Innovation, to the role. Joy Bonaguro, the previous state CDO, stepped down in June 2023. READ MORE

States Should Think Beyond Mobile Drivers' Licenses for Digital Identity Other forms of digital ID will also be important for serving constituents online and preventing fraud. READ MORE

Strengthening Digital Identity and Preventing Fraud New research from the Center for Digital Government shows most people prefer to interact with state agencies online. But constituents also are concerned about identity fraud resulting from these transactions, and verifying their digital identity is harder than it should be. This paper offers practical strategies for government leaders and policymakers to simplify digital identity verification and crack down on identity fraud. DOWNLOAD

Supreme Court Revives Case Claiming Councilmember's Arrest Was Politically Motivated On Thursday, the court sided with Sylvia Gonzalez, a former councilmember in a San Antonio suburb, who was arrested after criticizing the city manager. READ MORE

Ten Features to Look for in Cost Allocation Plan (CAP) Software This paper covers the top ten features to look for in modern cost allocation software. DOWNLOAD

The Bus Lines That Can Solve a Bunch of Urban Problems Many cities view rail transit as an enticing boost to civic fortunes. But there’s a better, cheaper way to accomplish the same thing. READ MORE

The Multibillion-Dollar Implications of EVs for State Budgets It’s not just the decline in fuel tax revenues and its impact on highway construction and maintenance. Real estate will also be affected, and sales taxes are likely to take a hit. States need to begin developing strategies. READ MORE

The State of GovTech in Justice and Public Safety From tools that give law enforcement better situational awareness to software that prepares formerly incarcerated individuals for the workforce, justice and public safety agencies can take advantage of many new innovations this year. This paper presents profiles of 12 startup companies that are using technologies like artificial intelligence and the cloud to help create safer communities. DOWNLOAD

Two Major Cities Are Notching Big Victories Over Crime Boston and Dallas have achieved success in bringing down murders and other violent crimes by deploying an array of promising programs and approaches. READ MORE

Vermont Legislators Approve 14 Percent Property Tax Increase, Overriding Governor Gov. Phil Scott argued that residents need tax cuts, not an increase. Legislators felt they had to act to address increased school spending. READ MORE

What Agencies Should Know About the New Accessibility Rule The federal Department of Justice’s final rule in April updated the Americans with Disabilities Act, requiring accessibility for all government content. Here’s what that means for state and local entities. READ MORE

What Does the Future of Cybersecurity in Space Look Like? Defending technology in space requires a range of strategies, and an open-minded approach is key to preparing for inventive attackers and an evolving tech environment. A new report aims to help. READ MORE

What Will It Take to Reach Our Goal of Internet for All? America's cable industry knows connecting the entire nation to high-speed internet requires technology, people, experience, and commitment — and we're on it. [CONTENT PROVIDED BY NCTA] GET CONNECTED

What’s New in Digital Equity: Colorado and New Hampshire BEAD Proposals Accepted Plus, Indiana is getting more than $81 million in broadband funding, new research suggests AI is directly related to digital equity, and more. READ MORE

When $20 Billion Isn't Enough: Water Infrastructure  States are spending about $20 billion of the flexible funding from the American Rescue Plan Act on water infrastructure. Demand is expected to grow in coming years. READ MORE

Why More Marylanders Are Passing Digitized Driver’s Tests Maryland’s Motor Vehicle Administration overhauled its computer-based learner’s permit tests, and passing scores increased within months. Data obtained by Government Technology details the secret to their success. READ MORE

Why Offshore Wind Power Is Struggling The industry’s troubles are complicated but it’s far from dead. Some policy changes may help it find firmer footing. READ MORE

Zencity Raises $40M to Fund Community Engagement Growth The funding round is relatively unique, according to one expert, and underscores how community engagement tools are changing as consumer habits shift. Zencity also released an AI assistant tool for local governments. READ MORE