Using key words such as those in the "squibs" of case summaries posted by New York Public Personnel Law set out below may be helpful in locating a relevant judicial or quasi-judicial decision

Abolishing a position for economic reasons 

Absent a statutory or negotiated administrative hearing procedure, an appointing authority may delegate decision-making authority to the hearing officer 

Acquiring tenure in the position by tenure by "operation of law," sometimes referred to as tenure by estoppel or tenure by acquiesce 

Administrative due process in disciplinary actions 

Administrative due process must be provided the accused employee in a disciplinary arbitration proceeding and the tribunal may not rely on evidence not in the record in arriving at its decision 

Admitting evidence of prior disciplinary action taken against the charged party 

Alcoholism as a defense in a disciplinary action

Amending disciplinary charges "to conform with the testimony" given by a witness in the course of the disciplinary hearing 

Appeals to the Commissioner of Education seeking to remove members of a Board of Education for alleged misconduct or alleged neglect of duty 

Applicant for performance of duty disability retirement benefits must show that his or her disability was the result of an act of an inmate

Application for retirement benefits must be timely delivered to and received by the retirement system to be operative 

Application seeking the removal of an employee of a school district 

Applying the Pell Doctrine in a disciplinary action 

Appointing authority imposed a more severe penalty than the one recommended by the hearing officer 

Appointing authority’s neglecting to make a timely written designation of an individual to serve in lieu of the appointing authority in a §75 disciplinary action is a fatal omission 

Arbitrator's award may only be vacated by a court if it violates public policy, is irrational or it exceeds specified limitations on the arbitrator's power 

Article 78 petition seeking the review of the disciplinary penalty imposed on an employee must raise an issue of substantial evidence to warrant Supreme Court’s transfer of the proceeding to the Appellate Division 

Assessing the appropriate penalty to be imposed for using unprofessional and disrespectful language in the workplace 

Assigning law enforcement personnel to perform light duty while receiving benefits pursuant to §207-c of the General Municipal Law 

Attempting to avoid disciplinary action 

Authority of the arbitrator 

Burden of proof shifts to the first responder if he or she fails to demonstrate a causative link between his or her illness and exposure to toxins at the World Trade Center activates 

Challenging a decision to terminate a probationary teacher's employment 

Challenging an employee's termination during his or her disciplinary probation period 

Civil Service Law §75 requires that a hearing officer appointed to conduct a disciplinary hearing be so designated in writing by the appointing authority

Claiming exempt volunteer firefighter status for the purposes of Civil Service Law §75.1(b) 

Claiming the affirmative defense of "privilege" 

Conducting disciplinary hearings in absentia 

Conducting student disciplinary proceedings consistent with fundamental notions of due process is an "unwavering obligation" 

Considering breaks in service in determining seniority for the purposes of layoff and reinstatement 

Considering the employee's personnel history is setting a disciplinary penalty 

Constructive discharge from the position as the result of unlawful acts of discrimination 

Counseling memorandum issued to an employee

Court's review of an administrative decision made after an adversarial hearing is limited to considering if the decision is supported by substantial evidence

Crediting the opinion of one medical expert over that of another medical expert when reviewing an application for disability retirement 

Deficiencies in the performance review process of a probationary teacher that were not merely technical undermined the integrity and fairness of the process 

Delegating the authority to make a final disciplinary decision and the determination of the penalty to be imposed to another

Demanding an employee submit his or her resignation from his or her position 

Determining “continuous residency” for the purpose of qualifying for public office or employment 

Determining an appropriate disciplinary penalty under the circumstances 

Determining an educator's seniority for the purposes of layoff 

Determining if an administrative agency's decision is arbitrary and capricious 

Determining if an employee is eligible for accidental disability retirement benefits 

Determining if an incident qualifies as an accident for the purposes determining eligibility for accidental disability retirement benefits 

Determining seniority and tenure area of teachers in the event of the abolishment of positions 

Determining seniority for the purpose of layoff and establishing an educator's position on a "preferred list" for the purpose of reinstatement 

Determining the amount of the General Municipal Law §207-a (2) salary supplement payable to a firefighter upon his or her retirement for disability because of a work-related injury or disease 

Determining the appropriate procedure to be followed when filing disciplinary charges against a police officer of a town 

Determining the disability benefits due a firefighter as the result of a work-related injury 

Determining the impact of performing light, limited or restricted duty on applications for disability retirement benefits 

Determining the status and rights of an employee in the public service terminated from his or her employment 

Difficulties result following the appointment of a teacher to an “unauthorized tenure area” 

Disability is not a defense to charges of excessive absence from work 

Disciplinary action follows employee's disrespectful and intimidating behavior towards superiors 

Disciplinary actions pursuant to Education Law §3020-a processed consistent with compulsory arbitration standards 

Disciplinary charges must be served on the target of the disciplinary action on or before the expiration of the period set by the controlling statute of limitations 

Disciplinary hearing officer may not consider disciplinary charges and specifications not preferred against an employee 

Disciplinary hearing officer permitted to "draw the strongest inferences" from the record in the event the charged individual declines to testify at his or her disciplinary hearing 

Disciplinary hearing postponed “without prejudice” pending successful completion of a probationary period with another agency

Disciplinary hearings held in absentia 

Disciplinary penalty imposed, termination, held reasonable under the circumstances 

Discrepancy between the contemporaneous incident reports and the applicant’s testimony at the subsequent hearing presents a credibility issue to be resolved by the hearing officer 

Dismissing an employee before he or she has completed his or her probationary period 

Distinguishing between an individual's "domicile" and his or her "residence" 

Doctrine of Abatement: applied in a criminal action 

Doctrine of primary jurisdiction 

Does the public have a right of access to a hearing concerning the removal of a member of a school board for official misconduct? 

Educator challenges the abolition of positions and the assignment of her former teaching duties to other teachers 

Educator seeking to overturn an unsatisfactory annual performance rating must meet is very high standard of proof 

Educator terminated for a continuing pattern of inappropriate behavior involving students 

Educator terminated for doing exactly what he was permitted and encouraged to do by his employer 

Educator's unsatisfactory performance rating for the academic year supported by the "detailed descriptions" of educator's difficulties in the classroom in the record 

Eligibility for workers’ compensation benefits based on work-related stress 

Employee dismissed pursuant to §75 of the Civil Service Law for incompetency based on excessive absenteeism 

Employee has the burden of proving alleged misconduct by the arbitrator prejudiced his or her rights or the integrity of the process

Employee may be subjected to disciplinary action for misusing his or her sick leave accruals 

Employee on Workers’ Compensation Leave continues to be subject to his or her employer’s rules and regulations concerning policies applicable to all its employees 

Employee penalized 60-day suspension without pay after striking a patient and failing to report the incident 

Employee served with disciplinary charges alleging he was "singing on the job" 

Employee suspended for one year without pay after failing to comply with school directives 

Employee terminated following the loss of the license required to perform the duties of the position 

Employee’s adjournment request may be properly counted against the employee for purposes of determining his or her entitlement to back pay 

Employee’s continuing to accept public assistance benefits after being employed to manage public assistance benefits held incompatible with such employment 

Employee’s disciplinary history for rudeness and insubordination considered in determining disciplinary penalty to be imposed 

Employee’s misuse of employer’s email results in dismissal 

Employee’s use of the employer's electronic equipment - disciplinary action being taken against an employee 

Employee's resignation after being found guilty of disciplinary charges forfeits his or her right to demand arbitration 

Employer advanced good faith reasons supporting its decision to terminate a probationary employee 

Employer's payment of employer contributions towards an employee's health insurance premiums discontinued during the employee's disciplinary suspension without pay 

Employer's personnel policies may be operative with respect to its employees' conduct while its employees are "off-duty" 

Employer's termination of a biologically male employee transitioning from male to female held unlawful discrimination on the basis of sex

Evaluating claims of mitigating circumstances in considering challenges to the disciplinary penalty imposed by the appointing authority 

Evidence that the firefighter suffered disease or malfunction of the heart as the result of his or her duties and activities required to trigger the statutory presumption set out in the Volunteer Firefighters' Benefit Law 

Exceptions to the general rule that only the union or the employer may demand that an issue be submitted to arbitration 

Factual findings made in a disciplinary hearing have a collateral estoppel effect where the individual had a full and fair opportunity to litigate the alleged misconduct at that hearing

Failing to designate the individual to conduct a disciplinary hearing pursuant to §75 of the Civil Service Law in writing is a fatal jurisdictional error

Failing to provide a fair hearing requires the voiding a Civil Service Commission’s decision sustaining the termination of an employee by the appointing authority

Failure of the individual to timely execute his or her oath of office upon election to a public office results in the position becoming vacant by operation of law

Failure to comply with emergency leave regulations

Failure to honor a known policy of the employer can constitute disqualifying misconduct for the purpose eligibility for unemployment insurance benefits

Federal and State laws, rules and regulations control affecting public sector officers and employees engage in partisan political activities

Filing disciplinary charges against an employee where the absence is due to an injury or disease

Findings of fact in support of the appointing authority’s decision to terminate an employee required to survive the employee’s judicial challenge seeking reinstatement to his or her former position.

Fire district or municipal corporation may file an application for disability retirement on behalf of a firefighter receiving General Municipal Law §207-a.1 benefits

Forfeiture of employee retirement contributions made to a New York State public retirement system

General Municipal Law §207-a(2) salary supplement becomes payable by the employer upon a firefighter's retirement with accidental or line of duty disability benefits 

Giving an employee a negative performance rating because the rater “didn’t have time” to rate the employee’s performance is irrational, arbitrary and capricious

Guidelines followed by courts in reviewing a challenge to a disciplinary decision made after a hearing held pursuant to compulsory arbitration

Hearing officer considers failed efforts at “progressive discipline” in setting disciplinary penalty

Hearing officer is entitled to weigh the parties' conflicting evidence and to assess the credibility of witnesses where room for choice exists 

Hearsay may constitute "substantial evidence" supporting the tribunal's findings in an administrative hearing

Hearsay testimony may be admitted in evidence in an administrative hearing

History of misconduct and other factors considered by the hearing officer in recommending termination of employment 

If an employee engaged in repeated acts constituting disloyalty to the employer, forfeiture of compensation and benefits is warranted under the Faithless Servant Doctrine

If the collective bargaining agreement does not set out procedures for conducting GML §207-c hearings, the employer is free to establish such a procedure unilaterally

Implementing an arbitrator's decision after the appointing authority failed to timely comply with the provisions set out in a collective bargaining agreement 

Imposing a "disciplinary probation period" as part of the penalty or settlement of a disciplinary action

Imposing a lesser disciplinary penalty than the one recommended by the disciplinary hearing officer

Imposing multiple disciplinary penalties on an employee found guilty of misconduct

Inability to satisfactorily perform the duties of the position due to an alleged disability

Individual cannot be found guilty of misconduct not charged in the notice of discipline

Individual has no property interest in his or her former employment once he or she is discharged

Individual is disqualified from receiving unemployment insurance benefits if he or she lost his or her employment as a result of acts constituting a felony 

Individual is not deemed permanently disabled if undergoing a reasonably safe surgical procedure would permit the individual to perform the duties of his or her position 

Individual or organization must have “standing” in order to maintain an Article 78 action challenging an administrative decision 

Individual whose position has been abolished must prove that the appointing authority abolished the position in bad faith or in an effort to circumvent the Civil Service Law

Individual wishing to withdraw or rescind his or her resignation after delivery to the appointing authority must fully comply with all relevant rules and regulations 

Individual's General Municipal Law §207-c benefits may be discontinued where the decision to do so is supported by substantial evidence 

Individual's right to due process is truncated if he or she is persuaded not to attend his or her administrative hearing 

Injuries sustained by a trainee during a training exercise ruled the result of an accident for the purposes of claiming eligibility for accidental disability retirement benefits

Installing Global Positioning System equipment in devices use by employees during work

Insubordinate and discourteous conduct

Judicial review of a determination arrived at following a quasi-judicial hearing is typically limited to determining if the decision is supported by substantial evidence

Judicial review of determinations made after a hearing denying a police officer's application for General Municipal Law §207-c disability benefits

Lack of prior misconduct not sufficient to mitigate imposing the penalty of dismissal given the fraudulent nature of the individual’s misconduct

Lack of standing and failure to name a necessary party dooms an appeal to the Commissioner of Education

Layoff of seasonal employees constituted a termination of employment for the purposes of Public Authorities Law §2629(2)(a)

Leaving employment without good cause will disqualify an applicant for unemployment insurance benefits

Maintaining a proper chain of custody of evidence to be used in a disciplinary action

Making false statements concerning the employee's performance of his or her duties

Making false statements to investigators concerning alleged misconduct

Member service credit in the New York State Teachers' Retirement System upon the reemployment of an individual receiving a disability retirement allowance by a New York State public employer

Membership in the NYS Employees’ Retirement System for 10 years is not necessarily the same as the member having 10 years of member service credit

Minor gaps and errors in the hearing transcript made at an administrative hearing did not preclude meaningful review of the hearing

Motions to have an administrative law judge recuse himself or herself from presiding at a disciplinary hearing

Name clearing hearings

New York City employee found guilty of used his employer's telephone and computer equipment for his political campaign while at work

New York City police officer who filed fabricated complaints with the New York City Civilian Complaint Review Board dismissed from the department

New York State and Local Retirement System member has only 30 days following the “date of payability” of his or her retirement allowance to change his or her retirement option 

OATH Administrative Law Judge recommended dismissal of disciplinary charges after finding supervisors’ testimony was unsupported by reliable documentary evidence

OATH disciplinary hearing held in absentia

Opening a disciplinary hearing to the public and other procedural matters addressed in an appeal to the Commissioner of Education Overtime paid to a police officer on “special-duty” for service performed for a private entity not included in determining the officer’s “final average salary” for retirement purposes

Party seeking to modify an arbitration award must comply with the relevant provisions of Article 75 of the Civil Practice Law and Rules 

Penalty of dismissal imposed on educator ruled shocking to its sense of fairness 

Penalty of dismissal recommended for an employee found guilty of violating the public trust and other disciplinary charges

Penalty of termination to “jolt” the employee to understand of the seriousness of his misconduct remanded for the imposition of a lesser penalty

Petitioner's appeal from a Board of Education's seniority determination for the purposes of layoff dismissed for failure to make "proper service" on all the parties

Placing an employee on involuntary leave pursuant to Civil Service Law §72.5

Police confrontations with mentally impaired citizens and inmates

Police detective who did not properly discharge his duties not entitled to a defense or indemnification by the employer in a lawsuit in which he or she is a defendant

Police officer eligible to receive General Municipal Law §207-c benefits may file a claim against his or her employer pursuant to General Municipal Law §205-e 

Police officer holds a position of great sensitivity and trust and is subject to a higher standard of fitness and character are "ordinary civil servants"

Police officer terminated following being found guilty of downloading and possessing child pornography

Police officer's accident disability retirement benefits are to be offset against the injured retiree's jury award for future lost earnings and pension

Police officers and firefighters applying for accidental disability retirement benefits must demonstrate that his or her incapacity was the "natural and proximate result of an accident" within the meaning of §363[a][1] of the Retirement and Social Security Law

Probationary employee has the burden of showing his or her termination was unlawful

Probationary employee may not be terminated in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law

Probationer challenging dismissal from the position claims to have suffered extreme emotional distress 

Procedural errors to avoid in an appeal submitted to the Commissioner of Education

Procedural misstep in processing an appeal to the Commissioner of Education could result in a fatal jurisdictional defect 

Procedural requirements with which a resident of a school district must comply when seeking to remove a school officer from his or her position

Processing an application for accidental disability retirement

Processing appeals to the Commissioner of Education seeking the removal of a member of a Board of Education

Proper service of the petition and notice of the petition of an appeal to the Commissioner of Education critical to the Commissioner assuming jurisdiction

Public employee's misconduct while "off-duty" may result in disciplinary action being initiated against the employee by the appointing authority

Public officer threatening to do something that he or she may lawfully due does not constitute coercion 

Public policy prohibits an employer from bargaining away its right to remove those employees satisfying the plain and clear statutory requisites for termination

Redacting the name of a party in an administrative disciplinary action from the decision

Refusing to accept the resignation submitted by an employee

Rejection of a hearing officer's finding of fact and determination by the appointing authority

Removing a judge from his or her office

Removing a school official for an alleged unauthorized disclosure of confidential information 

Removing a town, village, improvement district or fire district officer, other than a justice of the peace, from his or her office

Removing a volunteer firefighter from his or her position

Requiring a firefighter injured in the line of duty to accept a "light duty" assignment and where appropriate to undergo surgery

Requiring an educator submit to a medical examination to determine his or her ability to perform the duties of his or her position

Requiring employees to submit to a “dog-sniffing test” for illegal drugs

Restoration of leave credits used by employees electing to remain on the payroll while on Workers’ Compensation Leave pursuant to Civil Service Law §71

Right to administrative due process not compromised by a three-year delay in conducting a disciplinary hearing and, or, other alleged procedural errors

Salary reduction upon reassignment to another position in the course of an agency reorganization is not a disciplinary action requiring notice and hearing 

School Board asks the Commissioner of Education to remove the president of the school board from the position

School board member who acts on the advice of counsel will not be found to have engaged in a willful violation or neglect of duty 

School board seeks to remove a sitting member from the board for alleged "official misconduct"

School district’s decision to abolish a position and have a BOCES assume performing the duties of the abolished position constitutes a “transfer of a function” within the meaning of Civil Service Law §70(2) 

School employee who elected to submit an issue for resolution through a contractual grievance procedure may not appeal the same issue to the Commissioner of Education pursuant to Education Law §310 

Seniority for the purposes of layoff and reinstatement from a preferred list set out in "settlement agreement"

Sleeping on duty

Social Security Administration’s disability determination not binding on a public retirement system of this State.

Some common procedural errors or omissions that will bar the Commissioner of Education's considering the merits of an appeal

Some due process consideration in the event an employee is terminated from his or her probationary period

Some exceptions to the Doctrine of Exhaustion of Administrative Remedies

Spoliation of evidence

Stipulation of settlement cannot be withdrawn from the stipulation on the basis that it had "improvidently" agreed to it 

Stipulation waiving rights to a disciplinary hearing and agreement to resign from the position may not disqualify the individual for Unemployment Insurance benefits 

Summarily removing public officers and employees from their positions

Summarily terminating a federal officer holding a term appointment from his or her position

Supreme Court correctly applied the Doctrine of Collateral Estoppel based on the hearing officer's determinations as to the reasons for the employee's termination

Suspension of a tenured teacher requires the timely filing of written charges and specifications with the clerk or secretary of the board of education

Teacher fined $10,000 after subjecting student to corporal punishment

Tenure area determinations upon the abolishment of a position or positions 

Tenured employee who resigns from his or her position and is subsequently reemployed by his or her former employer in the same title is not automatically entitled to tenure in the position 

Tenured teacher unwilling to improve her pedagogical skills despite being provided with substantial assistance terminated from her position

Terminated after a disciplinary hearing, employee’s Article 78 petition dismissed because he failed to file timely Education Law §3813(1) notice of claim

Terminated educator alleges that her employer breached the employment agreement and negligently terminated her

Terminated probationary employee has the burden of demonstrating an improper basis for his or her termination

Terminating a "long-time" provisional employee

Terminating a teacher during his or her probationary period

Termination of a police officer on General Municipal Law §207-c leave under color of Civil Service Law §71

Termination of a public officer from his or her position by operation of law

Termination of employee found guilty violating patient escort procedures, being late for work, falsifying timesheets, and failing to arrive on time for assignments

Termination of employment following extended absence without approval

Termination of the employee following unsuccessful progressive disciplinary efforts did not shock the court’s "sense of fairness”

The actions of an employee prior to his or her promotion may properly form the basis for terminating the individual prior to the completion of his or her probationary period

The anatomy of an administrative disciplinary decision

The burden of serving a proper "notice to appear" at an administrative hearing is the responsibility of the charging party

The Commissioner of Education will dismiss an appeal submitted pursuant to Education Law §306, in whole or part, if there are procedural defects or omissions

The Commissioner of Education will dismiss an application or appeal involving an officer and, or, a member of the staff of a school district for improper service of the complaint and, or, lack of subject matter jurisdiction

The Comptroller has exclusive authority to determine the validity of a beneficiary designation on an application for death benefits, which determination must be supported by substantial evidence

The Doctrine of Collateral Estoppel bars relitigating an issue raised and decided by a judicial tribunal in a prior action or proceeding involving the same parties

The Doctrine of Collateral Estoppel does not bar litigating claims involving the same parties that were not previously considered in prior administrative or judicial actions

The Doctrine of Legislative Equivalency defeats a mayor’s unilateral decision to abolish a position in the civil service

The Doctrine of Sovereign Immunity held to have been waived with respect to litigation challenging an arbitration award

The employee’s testimony at the hearing differed from statements he gave during an investigative raised a question of credibility for the hearing officer to resolve

The employment history of an employee found guilty of one or more disciplinary charges may be considered in setting the disciplinary penalty to be imposed

The essentials of challenging an employee disciplinary action where compulsory arbitration is involved

The Fifth Amendment's bar against “self-incrimination” does not protect an individual who lies in the course of an official inquiry

The findings of fact made by a §75 hearing officer are given collateral estoppel effect in considering a terminated individual's application for unemployment insurance benefits

The individual's retiring from his or her position to avoid disciplinary action may have unexpected consequences

The obligation to arbitrate the matter arising through a statutory mandate set out in Education Law §3020-a requires that the arbitrator’s determination be subject to "closer judicial scrutiny"

The Plausibility Standard

The right to a disciplinary hearing survives the individual’s resignation or retirement from the position

The so-called "Firefighter Rule" bars police officer from suing his or her employer or a coworker for injuries suffered while on duty

The statutory rights of employees of the State and political subdivisions of the State absent from work as the result of a work-related injury or disease

The statutory rights of employees of the State and political subdivisions of the State absent from work as the result of a work-related injury or disease

The suspension of a tenured teacher requires the board of education to serve written disciplinary charges against the teacher within a reasonable amount of time

The test applied to determine if an individual is eligible for accidental disability retirement is whether he or she is permanently unable to perform the full duties of the position

There is a presumption that an accident that occurred in the course of employment arose out of that employment

Unemployment Insurance Appeal Board may reject an application for unemployment insurance benefits based on it finding the Claimant's employment was terminated due to disqualifying misconduct

Unemployment insurance benefit denied where off-duty misconduct found to breach the standards of behavior expected of an employee in consideration of his or her duties

Union cannot object to imposing demotion as a disciplinary penalty when demotion was a penalty authorized in the collective bargaining agreement

Unless it is shown that a performance evaluation was arbitrary and capricious, or made in bad faith, the court will not substitute its judgment for that of the appointing authority

Unsatisfactory rating voided because employee's "performance review" failed to comply with the employer's own procedures and thus undermined the integrity of the process

Use of excessive and inappropriate force on juvenile residents at a facility

Use of video surveillance recording in disciplinary actions

Withdrawing a resignation delivered to an appointing authority

Providing disabled benefits to paid firefighters employed by fire departments

In this decision the Court of Appeals addresses what it describes as a "complicated statutory scheme" to provide paid firefighters employed by fire departments outside the City of New York who become disabled in the course of performing their duties disability benefits. Such firefighters may receive benefits from one or mor different sources: their local governmental employer, the State of New York, and, or, the New York State's Workers' Compensation System. In the instant matter the Court of Appeal's decision indicated that the disabled firefighter [Plaintiff] received benefits from all three sources.

Here the question to be resolved concerned whether an employer of firefighters of a jurisdiction outside the City of New York can compel the Workers' Compensation Board to pay the disabled firefighter's workers' compensation benefits to the employer as a means of permitting it to recoup an overpayment the employer claims to have made to a disabled firefighter.

Affirming the Appellate Division's decision, the Court of Appeals said "Neither Workers' Compensation Law §25(4)(a) nor Workers' Compensation Law §30(2) allow reimbursement from workers' compensation awards for payments made pursuant to  General Municipal Law §207-a(2)". The Court explained the provision that prevents [the Plaintiff in the instant case] and other firefighters like him from receiving duplicative benefits is General Municipal Law §207-a(4-a). The employing fire department, therefore, is not entitled to "reimbursement directly from [the fighter's] workers' compensation award for its prior payments to him under General Municipal Law §207-a(2)". 

The Court of Appeals' decision is set out below and may be download from the Internet by clicking HERE.

Matter of Schulze v City of Newburgh Fire Dept.

2025 NY Slip Op 02101

Decided on April 10, 2025

Court of Appeals

Wilson, Ch. J.

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 April 10, 2025

No. 32

[*1]Adam Schulze, Respondent,

v

City of Newburgh Fire Department, Appellant. Workers' Compensation Board, Respondent.

Lars P. Mead, for appellant.

Dustin Brockner, for respondent Workers' Compensation Board.

Richard T. Cahill, Jr., for respondent Adam Schulze.

WILSON, Chief Judge

Pursuant to a complicated statutory scheme, paid firefighters outside New York City who become disabled at work may receive benefits from different sources: their local governmental employer, New York State, and the Workers' Compensation System. Adam Schulze is a retired paid firefighter who, when employed by the City of Newburgh, was disabled in the performance of duty. He received benefits from all three sources. This case concerns whether the City can compel the Workers' Compensation Board to pay Mr. Schulze's workers' compensation benefits to the City, as a way to allow it to recoup an overpayment it claims to have made to Mr. Schulze. Based on the clear language of the relevant statutes, the City cannot do so.

I.

Generally speaking, a disabled firefighter may fall into one of three categories: (1) the firefighter may remain on the municipality's or fire district's payroll (General Municipal Law § 207-a [1]), (2) the firefighter may retire, either by choice or through the action of the municipality or fire district, and receive accidental disability retirement (ADR) (Retirement and Social Security Law § 363), or (3) the firefighter may retire, either by choice or through the action of the municipality or fire district, and receive performance of duty (POD) retirement (Retirement and Social Security Law § 363-c). Which category a firefighter falls into depends on the severity and permanence of the firefighter's injury, as well as the manner in which the injury occurred. In each category, a firefighter may be eligible for benefits under General Municipal Law § 207-a and/or workers' compensation.

In some circumstances, the total of the separate benefits may be greater than the firefighter's salary had the firefighter not been injured. To prevent such double payments, the legislature has created specific mechanisms to allow either the state or local government to reduce benefits payments. Whether and which mechanism applies depends on the combination of benefits a firefighter is receiving. This case requires us to determine whether two of those mechanisms—Workers' Compensation Law §§ 25 (4) (a) and 30 (2)—are available here.

In 2001, Mr. Schulze began working as a firefighter for the City of Newburgh Fire Department. On April 30, 2012, Mr. Schulze suffered work-related injuries to his neck and back while putting out a fire. He had surgery on his cervical spine. But even after his surgery, Mr. Schulze was unable to lift anything over 15 pounds and experienced constant pain. His doctor told him he could never be a firefighter again. Mr. Schulze was classified as permanently partially disabled on February 23, 2015, when he was 39 years old.

After his injury, Mr. Schulze stopped working. The City continued to pay him his full salary, as was required by General Municipal Law § 207-a (1). From May 2012 to December 2015, Mr. Schulze also received workers' compensation awards. Because Mr. Schulze remained on the City's payroll drawing a full salary, the City received reimbursement from those awards for its General Municipal Law § 207-a (1) salary payments (Workers' Compensation Law § 30 [2]). In that way, the City's total payments to Mr. Schulze were effectively reduced, and Mr. Schulze did not receive more than his salary as a firefighter.

In April 2016, Mr. Schulze's application for POD retirement under Retirement and Social Security Law § 363-c was approved, entitling him to a 50% pension for life. Once Mr. Schulze was approved for POD retirement, he left the City's payroll; his last day on the payroll was April 30, 2016. From that point forward, the State paid his pension and, as required by General Municipal Law § 207-a (2), the City paid Mr. Schulze the difference between his POD pension and his salary. Mr. Schulze thus continued to receive an amount equal to his salary. Under General Municipal Law § 207-a (2), the City's payments continue until the disabled firefighter reaches mandatory retirement, at which point they cease, and the firefighter receives only the state-paid disability pension benefit.

In February 2015, when Mr. Schulze was classified as permanently partially disabled, a Workers' Compensation Law Judge (WCLJ) held that Mr. Schulze was eligible for up to 375 weeks of workers' compensation payments. The payments themselves were awarded in retroactive installments, several months at a time. For an installment to be awarded, either Mr. Schulze or the City had to request the award. Until December 2015, Mr. Schulze regularly requested payments. The last payment (before the payments at issue here) was awarded in December 2015, for the period from August 27, 2015, to December 24, 2015. From December 2015 to July 2019, neither Mr. Schulze nor the City requested another installment of workers' compensation.

In July 2019, Mr. Schulze requested a hearing to determine his entitlement to workers' compensation for two periods of time: (1) December 2015 to April 2016, which represents the period between Mr. Schulze's last workers' compensation payment and the date he left the City's payroll; and (2) April 2016 on. The City requested reimbursement from both awards for its prior payments under General Municipal Law § 207-a (1) (before Mr. Schulze's retirement) and General Municipal Law § 207-a (2) (after his retirement). In other words, the City conceded Mr. Schulze was entitled to workers' compensation payments, but sought to reduce the amount it paid to him by the amount he had already been paid under the General Municipal Law.

In December 2019, the WCLJ awarded Mr. Schulze payments for both periods of time in an amount of $504.41 per week. The WCLJ granted the City reimbursement from the payments for the period of December 2015 to April 2016 but denied the City reimbursement from the payments for April 2016 on.

The City appealed the denial of reimbursement for that later period, and the Workers' Compensation Board upheld the WCLJ's decision, relying on the Appellate Division's decision in Matter of Harzinski v Village of Endicott, 126 AD2d 56 (3d Dept 1987). The Appellate Division affirmed the Board's decision (213 AD3d 1046, 1048 [3d Dept 2023]). The Appellate Division rejected the City's argument that Harzinski applied only to payments made to firefighters receiving ADR (rather than POD) benefits, and applied Harzinski's conclusion that General Municipal Law § 207-a (2) payments are not "wages" under sections 25 (4) (a) and 30 (2) of the Workers' Compensation Law (id. at 1047-1048, citing Harzinski, 126 AD2d at 58). We granted the City leave to appeal.

II.

A.

Paid firefighters employed outside New York City who are disabled by an injury sustained on the job may be eligible for benefits under the following statutes:

• The Retirement and Social Security Law, which provides for either ADR or POD retirement benefits paid by the state police and firefighters' retirement system, not the firefighter's employer;

• The General Municipal Law, which provides for benefits paid by the firefighter's employer (a covered municipality or fire district); and/or

• The Workers' Compensation Law, which provides for awards paid by the employer (in the case of paid firefighters, the municipality or fire district) or the employer's insurer.

Such a firefighter may be in one of the following three situations. First, the firefighter may still be on the employer's payroll. Until and unless the firefighter retires, General Municipal Law § 207-a (1) requires the employer to pay the firefighter "the full amount of his or her regular salary or wages" until the firefighter's disability ends. The employer's General Municipal Law § 207-a (1) payments to the firefighter are "credited against" any workers' compensation benefits the firefighter is awarded (Workers' Compensation Law § 30 [2]). Put differently, while a firefighter is receiving General Municipal Law § 207-a (1) benefits, the Workers' Compensation Board will order that the employer receive "reimbursement" for its section 207-a (1) payments from a workers' compensation award for the same period. Second, a firefighter may retire and receive ADR benefits under Retirement and Social Security Law § 363 ^[FN1]. In that case, General Municipal Law § 207-a (2) requires the employer to pay the difference between the firefighter's ADR benefits and "the amount of his or her regular salary or wages" until the firefighter reaches mandatory retirement. If the firefighter receives workers' compensation, the firefighter's ADR benefits are reduced by the amount of the workers' compensation award (Retirement and Social Security Law §§ 363 [e] [3], 364 [a]). Third, a firefighter may receive POD retirement benefits under Retirement and Social Security Law § 363-c ^[FN2]. Like firefighters receiving ADR benefits, firefighters receiving POD retirement benefits are entitled to supplemental payments from the employer under General Municipal Law § 207-a (2). Unlike ADR benefits, however, POD retirement benefits are not reduced by a workers' compensation award (Retirement and Social Security Law § 363-c [i]). Instead, when a firefighter receives POD retirement benefits, the employer is entitled to reduce its General Municipal Law § 207-a (2) payments by the amount of the workers' compensation award (General Municipal Law § 207-a [4-a]). The statutory scheme thus creates a difference: in the case of firefighters receiving ADR benefits, workers' compensation awards reduce the State's obligation; for firefighters receiving POD benefits, workers' compensation awards reduce the employer's obligation.^[FN3]

Mr. Schulze is in the third situation. He has received POD retirement benefits, supplemental payments under General Municipal Law § 207-a (2), and workers' compensation payments. Instead of following the statutory scheme outlined above, which requires the City to reduce its General Municipal Law § 207-a (2) payments "by the amount of the benefits that are finally determined payable under the workers' compensation law" (General Municipal Law § 207-a [4-a]), the City seeks an order from the Workers' Compensation Board directing that the City receive the [*2]workers' compensation payments due to Mr. Schulze as reimbursement for the payments the City made to Mr. Schulze under General Municipal Law § 207-a (2). The City is not entitled to that relief, as the WCLJ, Workers' Compensation Board, and Appellate Division held.

B.

The City argues that two provisions of the Workers' Compensation Law entitle it to reimbursement from Mr. Schulze's workers' compensation award: sections 30 (2) and 25 (4) (a). The City's arguments are unavailing: it is clear from the text of those provisions that neither entitles an employer to reimbursement for General Municipal Law § 207-a (2) payments.^[FN4]

Workers' Compensation Law § 30 (2) does not encompass payments under General Municipal Law § 207-a (2). Section 30 (2) provides, as relevant here:

"No benefits, savings or insurance of the injured employee, independent of the provisions of this chapter, shall be considered in determining the compensation or benefits to be paid under this chapter, except that . . . (2) in case of an award of compensation to a paid firefighter of a . . . fire department of a city of less than one million population, . . . any salary or wages paid to . . . such paid firefighter under and pursuant to [General Municipal Law 207-a] shall be credited against any award of compensation to such paid firefighter under this chapter."

Payments under General Municipal Law § 207-a (2) are not "salary or wages." The Workers' Compensation Law defines "wages" as "the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident" (Workers' Compensation Law § 2 [9]). General Municipal Law § 207-a (2) payments do not meet that definition. They are pension supplements that bridge the gap between retirement benefits and the wages a firefighter would have been entitled to, had the firefighter not retired (see Matter of Borelli v City of Yonkers, 39 NY3d 138, 142 [2022]).

The legislative history of Workers' Compensation Law § 30 (2) supports the conclusion that the provision applies to payments under General Municipal Law § 207-a (1), but not payments under General Municipal Law § 207-a (2). Section 30 (2) was created in 1951, 13 years after the enactment of General Municipal Law § 207-a (see L 1951, ch 812, § 2). In 1951, subdivision two of section 207-a did not exist—section 207-a simply required covered municipalities and fire districts to pay the full salary and wages of disabled firefighters, with no provision for retirement (see id. § 1; see also L 1977, ch 965, § 1). Workers' Compensation Law § 30 (2) was intended to "protect municipalities and fire districts against unwarranted payments of full salary," under subdivision 207-a (1), "plus workmen's compensation benefits" (Mem from Association of Fire Districts to Governor Dewey, Bill Jacket, L 1951, ch 812 at 7; see also Mem from State Comptroller J. Raymond McGovern to Governor Dewey, id., at 12-13). Municipalities making payments under General Municipal Law § 207-a (2) are not making payments of "salary or wages," and may not receive reimbursement through Workers' Compensation Law § 30 (2).

The City's arguments under Workers' Compensation Law § 25 (4) (a) are equally unavailing. Section 25 (4) (a) provides:

"If the employer has made advance payments of compensation, or has made payments to an employee in like manner as wages during any period of disability, he shall be entitled to be reimbursed out of an unpaid instalment or instalments of compensation due, provided his claim for reimbursement is filed before award of compensation is made, or if insured, by the insurance carrier at the direction of the board . . . ."

Contrary to the City's argument, General Municipal Law § 207-a (2) payments are not "payments to an employee in like manner as wages" under Workers' Compensation Law § 25 (4) (a). Subdivision 207-a (2) payments are calculated differently from wages and are properly understood as pension supplements. Furthermore, General Municipal Law § 207-a (2) payments are not made to employees, as Workers' Compensation Law § 25 (4) (a) requires. Whereas firefighters receiving General Municipal Law § 207-a (1) payments remain on the employer's payroll, firefighters receiving General Municipal Law § 207-a (2) payments are retired.

In fact, General Municipal Law § 207-a (2) was specifically created to shift responsibility for supporting disabled firefighters from local governments to the State by moving firefighters off municipal payrolls and onto retirement benefits (see Borelli, 39 NY3d at 143). Before 1977, when General Municipal Law § 207-a (2) was created, disabled firefighters had no reason to retire. If a firefighter remained disabled and stayed on the payroll, the employer had to keep paying the firefighter's full salary (General Municipal Law 207-a [1]). Firefighters retiring on ADR—the only relevant retirement system benefit available at the time—received a pension of 75% of their final average salary (Sponsor's Mem in Support, Bill Jacket, L 1984, ch 661 at 9). The point of General Municipal Law § 207-a (2) was to "permit the retirement of a fireman eligible for disability retirement benefits" (Governor's Approval Mem at 1, Bill Jacket, L 1977, ch 965). It is thus core to subdivision 207-a (2) that the firefighters who receive its benefits are no longer employees receiving a salary.

The legislative history of Workers' Compensation Law § 25 (4) (a) supports the conclusion that it does not apply to General Municipal Law § 207-a (2) payments. The precursor to section 25 (4) (a)—which included the phrase "payments to an employee in like manner as wages"—was added to the Workers' Compensation Law in 1930 (see L 1930, ch 316, § 3). The provision was intended to ensure that employers who paid disabled firefighters wages while a workers' compensation award was pending would not be penalized. Supporters of the bill explained:

"The amendment . . . [provides] that the employer who has made advance payments to an employee as wages during any period of disability shall receive the same credit as though it were a compensation payment and be entitled to reimbursement from his insurance carrier. . . . This procedure will not penalize or prevent certain employers pursuing a policy of paying employees' wages in addition to compensation and in such cases will not permit the insurance carrier to be in a more favorable position because of such employers' personnel policy"

(Supporting Mem, Bill Jacket, L 1930, ch 316 at 4). Payments under General Municipal Law § 207-a (2) are thus not like the wage payments contemplated under Workers' Compensation Law § 25 (4) (a).

C.

Underlying the City's position is the argument that the remedy available under the statutory scheme is insufficient. The legislature did not ignore the potential for duplicative benefits for firefighters on POD retirement. The provision that ensures that firefighters like Mr. Schulze do not receive double payments is General Municipal Law § 207-a (4-a). That subdivision provides:

"Any benefit payable pursuant to [General Municipal Law § 207-a (2)] to a person who is granted retirement for disability incurred in performance of duty pursuant to [Retirement and Social Security Law § 363-c] shall be reduced by the amount of the benefits that are finally determined payable under the workers' compensation law by reason of accidental disability."

In the City's view, General Municipal Law § 207-a (4-a) is an inadequate remedy where, as here, General Municipal Law § 207-a (2) payments are made before a final workers' compensation award. For the period from April 2016 to October 2019, the City made supplemental payments to Mr. Schulze pursuant to General Municipal Law § 207-a (2). Subsequently, in October 2019, Mr. Schulze was retroactively awarded workers' compensation payments for that period. The delay resulted in Mr. Schulze receiving approximately $106,000 more than he should have received.

The City argues that it would be unfair to limit employers to the remedy set out in General Municipal Law § 207-a (4-a) when a firefighter receives a retroactive workers' compensation award for a period during which the employer has already made General Municipal Law § 207-a (2) payments. When that happens, the employer cannot go back in time to reduce its subdivision 207-a (2) payments in the first instance. Whether General Municipal Law [*3]§ 207-a (4-a) provides an employer with another way to recoup its prior payments, such as by reducing future General Municipal Law § 207-a (2) payments to compensate for past double payments or bringing a plenary action against the firefighter to recover the overpayment, is not before us.^[FN5]

In this case, the City could have avoided the overpayment by asking the WCLJ to award workers' compensation benefits beginning in April 2016, when Mr. Schulze retired (see, e.g., Matter of Georges v Zotos Intl. Inc., 198 AD3d 1047, 1047 [3d Dept 2021] [referencing an employer's request for further action], Matter of McQueer v Adirondack Tank Servs., Inc., 142 AD3d 743, 758 [3d Dept 2016] [same], Matter of Tricarico v Town of Islip, 136 AD3d 1127, 1129 [3d Dept 2016] [same]). If the City had done so, it would have been entitled to reduce its General Municipal Law § 207-a (2) payments by the amount of workers' compensation finally determined. Instead, the City allowed years to pass without an award of workers' compensation, thereby running the risk that Mr. Schulze would later receive a retroactive award covering that period of time ^[FN6]. Having failed to avail itself of the proper remedy, the City now seeks to avail itself of a statutorily unavailable remedy.

III.

Neither Workers' Compensation Law § 25 (4) (a) nor Workers' Compensation Law § 30 (2) allows reimbursement from workers' compensation awards for payments made under General Municipal Law § 207-a (2). The provision that prevents Mr. Schulze and other firefighters like him from receiving duplicative benefits is General Municipal Law § 207-a (4-a). The City of Newburgh Fire Department is therefore not entitled to reimbursement directly from Mr. Schulze's workers' compensation award for its prior payments to him under General Municipal Law § 207-a (2). The order of the Appellate Division should be affirmed, with costs.

Order affirmed, with costs. Opinion by Chief Judge Wilson. Judges Rivera, Garcia, Singas, Cannataro, Troutman and Halligan concur.

Decided April 10, 2025

Footnotes

Footnote 1: ADR benefits include a pension of 75% of the firefighter's final average salary (Retirement and Social Security Law §363 [e] [3]).

Footnote 2: POD retirement benefits include a pension of 50% of the firefighter's final average salary (Retirement and Social Security Law §363-c [f]).

Footnote 3: The statutory system represents cost-shifting between state and local governments. That cost-shifting can most clearly be seen in the legislative history of General Municipal Law §207-a. Before 1938, each municipality in New York had its own system for compensating disabled firefighters. Although some municipalities gave disabled firefighters " 'comprehensive and generous' pensions," others did not (Matter of Borelli v City of Yonkers, 39 NY3d 138, 142-143 [2022]). To "tak[e] care of . . . firefighters," the legislature enacted what is now General Municipal Law §207-a (1), which requires covered municipalities and fire districts to pay disabled firefighters "the full amount of his or her regular salary or wages" until the firefighter's disability ends (General Municipal Law §207-a [1]). "By the 1970s, many New York municipalities complained that the statutory requirements were excessively costly and undesirable" (Borelli, 39 NY3d at 143). In 1977, the legislature responded to municipalities' concerns by enacting General Municipal Law §207-a (2), which "shifted much of the burden onto state pension systems and away from municipal payrolls" (id.).

Footnote 4: Our decision is consistent with the Appellate Division's longstanding precedent. In Harzinski, the Appellate Division held that employers were not entitled to reimbursement from workers' compensation awards for General Municipal Law §207-a (2) payments to firefighters receiving ADR (126 AD2d at 57). The Appellate Division reasoned that General Municipal Law §207-a (2) payments "do not constitute wages within the meaning of Workers' Compensation Law § 25 (4) (a) or § 30 (2)" (id. at 58).

Footnote 5: In this case, we are asked to review a decision of the Workers' Compensation Board, which does not have the power to administer benefits under the General Municipal Law (Workers' Compensation Law §142).

Footnote 6: At oral argument, the City suggested that a short "gap" between a disabled firefighter's retirement and a workers' compensation award may, in some cases, be inevitable. But General Municipal Law §207-a (4-a) is the remedy the legislature has created. It is for the legislature to determine whether it is adequate.

______________________

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 additional information and access to a free excerpt of the material presented in this e-book, click on the URL set out below:

   http://booklocker.com/books/3916.html 

New York State's Comptroller Thomas P. DiNapoli issues the second in a series addressing the use of Artificial Intelligence (AI) in New York Government. This a 2023 audit of New York City’s AI Governance

On April 3, 2025, New York States Comptroller Thomas P. DiNapoli reported that New York State’s centralized guidance and oversight of agencies’ use of Artificial Intelligence (AI) is inadequate and creates a risk that the technology could be used irresponsibly. The Comptroller concluded that "Improved Guidance" is needed for State Agencies using AI to avoid risks. 

The audit looked at the state’s overall AI policy and how AI was used at four state agencies: the Office for the Aging (NYSOFA), the Department of Corrections and Community Supervision (DOCCS), the Department of Motor Vehicles (DMV), and the Department of Transportation (DOT).

The audit, the second in a series on AI Use in New York Government, follows a 2023 audit of New York City’s AI Governance.

“New York state agencies are using AI to monitor prisoners’ phone calls, catch fraudulent driver’s license applications, assist older adults, and support government services,” DiNapoli said. “Our audit found insufficient central guidance and oversight to check that these systems are reliable and accurate, and no inventory of what AI the state is using. This audit is a wake-up call. Stronger governance over the state’s growing use of AI is needed to safeguard against the well-known risks that come with it.”

While the state has moved to implement AI systems, guardrails for these technologies have not kept pace. Without adequate guidelines and oversight, AI systems that are meant to help expedite and expand services can, for example, expose data to unintended sources and create inequalities in decision-making and the delivery of services.

In New York State, use of AI is governed by the Office of Information Technology Services (ITS), which issued its Acceptable Use of Artificial Intelligence Technologies Policy (AI Policy) in January 2024. The AI Policy requires agencies to assess the risks in the AI systems they use. DiNapoli’s audit highlights a disconnect between the state’s eight-page AI Policy and how agencies understand AI and their responsibilities. While New York’s AI Policy gives an overview of responsible AI use, it lacks any detailed guidance on its implementation and instead simply directs agencies to federal guidelines for further information.

A major problem with the AI Policy is that it leaves agencies free to determine what is, or is not, responsible use of AI. Conflicting and confusing guidance regarding use of confidential information with AI systems as well as lack of staff training also create opportunities for inadvertent noncompliance and contribute to concerns about unintended uses and consequences.

The U.S. Government Accountability Office (GAO) has cautioned that AI “has the potential to amplify existing biases and concerns related to civil liberties, ethics, and social disparities,” but the state’s AI Policy contains only two sentences dedicated to bias management, failing to address both the data used to set up AI systems and the monitoring of already implemented systems for fairness and equity.

ITS also does not have an inventory of AI systems in use by state entities and is still developing a process for creating one, more than a year after releasing the AI Policy and. Officials told auditors they become aware of AI systems when an agency makes a procurement request or reaches out for support, leaving it to them to determine whether the system they are using is AI and has to follow the state’s AI Policy. That was the case with NYSOFA, which had an AI system, but did not know the system fell under the AI Policy.

Knowing what AI systems are in use, how they’re being used and what data they’re drawing from is critical to ensuring this technology is being used ethically and responsibly.

Finally, ITS officials said state entities are responsible for their own AI review, risk assessments, reporting and compliance with the AI Policy requiring human oversight of AI systems and outcomes. There is, however, no mechanism for ITS to ensure these are done or done properly.

Agencies Use of AI 

Auditors found that while NYSOFA, DOCCS, and DOT use ITS’ definition of AI, they do not have in-house policies or specific procedures to govern how AI is authorized, developed or used, for ensuring the data is unbiased and reliable, or have formal requirements of human oversight. DOT has an AI working group that first met in June 2024, but it has not yet issued any formal policies.

DMV does have internal policies to assess AI risks and oversee its use, but no specific procedures to ensure these policies are carried out. It also has an AI Governance Committee and created its own definition of AI, but exempted its facial recognition software - which it said it did not consider to be an AI system - from AI oversight. It has not consulted with ITS on that decision, although ITS’ definition of AI explicitly considers a system using computer vision (i.e., that gathers information from digital images) and making recommendations based on that data to be AI.

DMV and DOT provided an informal inventory of the AI they have in use or in development. None of the agencies maintained a formal AI inventory.

DOCCS uses AI software that monitors inmates’ phone calls to ensure inmates are only making calls as authorized. DOCCS’ contract bars use or sharing of this information without its consent and owns the recordings. However, the agency does not have a plan for addressing potential AI risks, and the contract does not address reducing biases to decrease the possibility that an inmate could be unfairly or unnecessarily subjected to further investigation. The vendor explained to auditors how it mitigates biases in the system, but it was not clear if those efforts work because DOCCS does not monitor or measure the system’s error rates.

NYSOFA uses a voice-activated device that acts as an AI companion to combat social isolation and loneliness and foster independence among older people. It initiates conversations and remembers what users say. NYSOFA shared satisfaction surveys with auditors that reported a 95% reduction in loneliness among those using the device in 2023.

NYSOFA was uncertain if its use of the device met the definition of AI under the AI Policy, which it does. The policy requires human oversight by the agency, however since the devices are provided directly to users, the only human oversight is the user. NYSOFA officials said the quality of the product’s interactions is open to interpretation, based on each user’s experience. They also said the vendor is responsible for ensuring the device’s responses are accurate and appropriate, although that is not written into their contract, and NYSOFA does not conduct a review to check. When asked about data security and privacy of the data generated, NYSOFA stated that the developers of the product own the performance metric data and recorded data, and that the vendor can use and access this data. NYSOFA officials did not know if the vendor was allowed to use the data to build or improve other systems elsewhere.

The vendor for the system auditors reviewed at DOT stated that the system does use AI for other clients, but the way it was implementing the technology for DOT did not include AI. Ultimately, there was insufficient information to determine if the example case was in fact AI. However, DOT is piloting three AI systems.

None of the agencies have conducted periodic reviews or audits of their AI systems to determine if they are accurate, reliable, and free of biases. Only DMV has a policy requiring such a review. In addition, while the agencies have trained staff on using their AI systems, none have trained employees on the risk of inaccuracies or biases in AI.

Recommendations 

The audit made seven recommendations, including that ITS strengthen its AI Policy by including guidance for agencies on adopting AI, work with agencies to support their responsible use of AI, and implement training. The recommendations for the other agencies included creating AI governance structures and policies and coordinating with ITS. The audit also recommended that DMV review its facial recognition system with ITS to determine if it’s complying with the state’s AI Policy.

Agencies Responses 

ITS stated that it was reviewing the recommendations and considering improvements and was creating training materials on AI for state entities. NYSOFA, DOCCS and DOT generally agreed with the recommendations and said they would create IT governance and consult with ITS. DMV generally disagreed with the findings, but agreed with the recommendations. Their full responses are available in the audit.

DiNapoli's audit, along with a previous audit of New York City AI governance, underscores the importance of independent oversight to ensure that AI governance is appropriately designed and complied with by agencies. DiNapoli will be advancing a bill to the state legislature that would require regular, independent audits of state agencies' AI governance and their development, use, and management of AI tools and systems. If enacted, the legislation would help safeguard against risks and improve the likelihood that AI technologies are used responsibly, ethically and transparently.

Audit 
Office of Information Technology Services, New York State Office for the Aging, Department of Corrections and Community Supervision, Department of Motor Vehicles, Department of Transportation: New York State Artificial Intelligence Governance

Related Audit 
NYC Office of Technology and Innovation: Artificial Intelligence Governance (Feb. 2023)