The obligations of a hearing officer conducting a New York State Civil Service Law §75 disciplinary hearing

An employee [Petitioner] of the Town was working as a systems administrator for the Town overseeing the transition to a new telephone system for its offices. It was subsequently discovered that certain Town office telephones had been enabled to record the user's conversation in contravention of a Town Board resolution prohibiting such recording except for calls made to "the Police Department for purposes of police investigations."

Following an investigation, a disciplinary charge was filed against Petitioner alleging three specifications of misconduct and incompetence.  After a disciplinary hearing conducted pursuant to Civil Service Law §75, the Hearing Officer sustained the charge and recommended the Petitioner's termination. The Town adopted the Hearing Officer's findings and recommendation as to the penalty to be imposed and terminated Petitioner. Petitioner commenced the instant CPLR Article 78 proceeding seeking a court order to annul his termination and directing his reinstatement to his former position, with back pay and benefits. 

The Appellate Division observed that:

1. "Pursuant to Civil Service Law §75(1), a civil service employee shall not be removed or otherwise subjected to any disciplinary penalty except for incompetency or misconduct shown after a hearing upon stated charges";

2. "The employer bears the burden of proving misconduct or incompetency and any determination of same 'must be based on the written charges' and specific factual findings;

3. A court's review of that determination is limited to whether substantial evidence supports the determination;

4. A court cannot conduct such a review unless the hearing officer makes sufficiently specific factual findings to identify the basis for the determination; and

5. A court may not supply factual findings that are absent and in the instant hearing the Hearing Officer did not provide the requisite specificity.

Accordingly, the Appellate Division annulled the Town's dismissal of the Petitioner and remitted the matter to the Town for further proceedings, noting that it was undisputed hearing evidence reflected that Petitioner was the contact person with the telephone vendor selected for the project, in setting up the Town's new telephone system nor was there any question that telephone calls to nonpolice extensions — including calls to the town supervisor, the town supervisor's confidential secretary and the town attorney — were being recorded despite the Town's resolution prohibiting such recordings.

The Appellate Division, however, noted that there were sharp factual disputes regarding Petitioner's alleged culpability, if any, that the Hearing Officer needed to resolve. Although the Hearing Officer stated generally that he found the testimony of Town's witnesses more credible than that of Petitioner and the Vendor's employee, he did not make sufficient factual findings to permit meaningful review by the Court as the Hearing Officer:

1. Failed to discuss each misconduct specification separately; and

2. Never stated the factual findings he relied upon to establish each finding of guilt. 

In the words of the Appellate Division, "This failure was particularly glaring when distinguishing between intentional and negligent misconduct, as the Hearing Officer never determined when, how or why telephone calls were improperly recorded and left doubt as to whether he faulted [Petitioner] for intentionally disregarding the [Town's] resolution when the telephone system was set up, for later advising the town supervisor how to turn recording on in violation of that resolution, or for negligently failing to monitor the telephone system in general."

The Appellate Division opined that the "absence of adequate findings further obscured whether the Hearing Officer inappropriately shifted the burden of proof from [the Town] to [the Petitioner]; he cursorily acknowledged that [the Town] bore the burden of proof but then faulted [the Employee] for not documenting his engagement with the [Vendor] or the town supervisor's inquiry about how to activate recording on certain extensions."

Absent specific factual findings as to what occurred and an explanation of the basis for sustaining each specification, the Appellate Division said it "could not determine whether substantial evidence supports the [§75 disciplinary] determination".

Accordingly, the Appellate Division ruled that the Town's determination "must be annulled and the matter remitted for the development of appropriate findings", and, in order to assist the Hearing Officer in rendering an adequate decision upon remittal, Appellate Division "briefly addressed" the Petitioner's remaining arguments to clarify the applicable legal principles, noting:

a. The respondent bears the burden to establish the charged misconduct under Civil Service Law §75; and

b. A Hearing Officer should also be mindful that "seriously controverted" hearsay evidence ... cannot constitute substantial evidence for the determination by itself".

The Appellate Division annulled the Town's determination and remitted the matter to the Town "for further proceedings not inconsistent with this Court's decision".

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

Proposed amendments to New York State's Ethics Training Requirements for Lobbyists and Clients

 PROPOSED RULE MAKING 

New York State Ethics Training 

Requirements for Lobbyists and Clients

NO HEARING(S) SCHEDULED 

Proposed Action: Amendment of Part 943 of Title 19 NYCRR

Statutory authority: Legislative Law, section 1-d(h) and (i) 

Subject: Amendments to the Ethics training requirements for Lobbyists and Clients. 

Purpose: Implement the statutory amendments included in Part U of Chapter 55 of the Laws of 2026 relating to ethics training for lobbyists and clients and the imposition of late fees for failing to complete such training within the required time. 

Text of proposed rule and any required statements and analyses may be obtained from: Megan Mutolo, Esq., Commission on Ethics and Lobbying in Government, 540 Broadway, Albany, NY 12207, (518) 486-7593 

Data, views or arguments may be submitted to: Same as above. 

Public comment will be received until: 60 days after publication of this notice. 

The federal Portal-to-Portal Act does not bar the payment of compensation when the employee is prevented from clocking in and beginning to work by the employer

Below is the introductory statement to the instant decision by the United States Court of Appeals, Second Circuit, setting out the genesis of this litigation.

"This case requires us* to consider whether the Portal-to-Portal Act bars an employee’s claim for compensation under the Fair Labor Standards Act (“FLSA”) for time spent waiting for work to begin when an employer requires the employee to report for work at a specific time but the employee is prevented from clocking in and beginning to work for reasons attributable to the employer.

[*Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation.]

"Plaintiff-Appellant Sandra Santos appeals from a judgment of the United States District Court for the Eastern District of New York (Azrack, J.) dismissing her claims against Defendant-Appellee Lidl US, LLC (“Lidl”) for violations of the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”).

"Santos alleges that Lidl required her and similarly situated employees to report to work fifteen minutes before the listed start time of their store opening shifts, and that opening managers regularly didn’t arrive until the listed start time. Because employees couldn’t clock in for work until they accessed the time clock machines located inside stores, on the days when managers were not there to let them in, the employees didn’t get paid for time spent waiting for managers to grant them entry. As relevant here, Santos seeks compensation for that unpaid waiting time.

"The district court dismissed Santos’s time-shaving claims as barred by the Portal-to-Portal Act, 29 U.S.C. § 254, which generally shields employers from FLSA liability for time workers spend on activities “preliminary” or “postliminary” to the principal activities they are employed to perform.

"On appeal, Santos argues that the district court overlooked that waiting time can be compensable when an employer engages an employee to wait for work. We agree. Waiting time is compensable under the FLSA when an employer requires an employee to report to the worksite at a certain time to be ready to work and, for reasons beyond the employee’s control, there is no work to be done. 29 C.F.R. § 790.7(h)."

The Court of Appeals then vacated the dismissal of Santos’s FLSA and NYLL time-shaving claims by the Federal District Court and remanded the matter to the District Court "for further proceedings consistent with this opinion", Judge Sullivan dissenting in a separate opinion.

Click HERE to access the majority and dissenting opinions in this action posted on the Internet.

Recent disciplinary hearing decisions by New York City Office of Administrative Trials and Hearing's Administrative Law Judges

Below are summaries of two recent disciplinary hearings conducted New York City Administrative Law Judges serving with the New York City Office of Administrative Trials and Hearing [OATH].

1. OATH Administrative Law Judge [ALJ] Julia Davis recommended the termination of the employment of a Behavioral Health Associate [Respondent] who was charged with (a) gross misconduct [striking a patient in the face] and (b) excessive absenteeism. 

Respondent had attempted to stop a patient from banging on the hallway window of a nurses’ station, and surveillance video showed Respondent striking the patient twice in the face. Respondent denied striking the patient, arguing that he acted in self-defense, which the ALJ found was belied by the video evidence showing the contrary. 

In assessing the penalty to recommend to the Appointing Authority, Judge Davis opined that Respondent’s lack of disciplinary history was outweighed by the seriousness of Respondent's misconduct and his inability to take responsibility for his actions. 

Although the ALJ found that Appointing Authority's evidence was insufficient to sustain the excessive absenteeism charge, the Administrative Law Judge recommended that Respondent be terminated from his employment based on her finding the Respondent guilty of gross misconduct in striking the patient twice. 

Click HERE to access Judge Davis' findings and findings and recommendation with respect to the penalty to be imposed on Respondent.

2. ALJ Christine Stecura recommended the termination of the employment of an Eligibility Specialist [Respondent] found guilty of being absent from work without authorization [AWOL]. 

The Appointing Authority [Petitioner] had charged the Respondent with being AWOL commencing in January 2025. Respondent had initially requested a medical leave of absence for a six-week period, which Petitioner denied due to a lack of supporting documentation. The ALJ found that Petitioner had established that Respondent was absent from work without approval for over 14 months and that such absence was excessive and subject to disciplinary action. 

The ALJ also found that Respondent had failed to provide corroborating lay, medical, or expert testimony, or supporting medical documentation, to demonstrate any alleged current and ongoing disability. 

Click HERE to access Judge Stecura's findings and recommendation with respect to the penalty to be imposed on Respondent.

Appellate Division holds that the body that ruled on disciplinary action taken against an employee pursuant to Civil Service Law §75(2) lacked jurisdiction to consider the matter

The Civil Service Law §75 Disciplinary Hearing Officer [HO] found the Plaintiff bringing this CPLR Article 78 action guilty of misconduct and incompetence and recommend Plaintiff's termination from her employment with City of Rochester Police Accountability Board [Board]. The Board adopted the HO's findings and  recommendation. 

Plaintiff initiated the instant CPLR Article 78 action:

1. Alleging the disciplinary action taken against her failed to comply with provisions set out in Civil Service Law §75(2) as the Board, which (a) adopted the HO's findings concerning the disciplinary charges served on Plaintiff and (b) accepted the HO's recommendation as to the penalty to be imposed, dismissal of Plaintiff from her position, lacked jurisdiction to discipline her; and

2. Alleging the City's administrative responses to her requests for documents pursuant to  New York State's Freedom of Information Law [FOIL] provided inadequate and contained redacted materials without proper justification.

With respect to Plaintiff's argument addressing the Board's alleged lack of jurisdiction as a result of a failure to comply with the relevant provisions of §75, the Appellate Division said it agreed with Plaintiff's arguments, noting that a disciplinary hearing on §75 charges preferred against an employee "shall be held by the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose". In the words of the Appellate Division, in the absence of "a written delegation authorizing a deputy or other person to conduct the hearing, 'the removing board or officer has no jurisdiction to discipline an employee'". 

As to Plaintiff's claims that "... a number of her FOIL requests were improperly denied and that the City provided inadequate responses and redacted materials without proper justification", the Appellate Division noted that "There is a presumption that government documents are available for inspection, and the burden rests on the agency resisting disclosure to demonstrate that they are exempt by articulating a particularized and specific justification".

With respect to the disciplinary action taken against the Plaintiff, the Appellate Division unanimously annulled the Board's disciplinary decision "on the law without costs to the extent that it terminated petitioner from her employment" and granted Plaintiff's petition "to the extent that [Petitioner] is reinstated to her position with back pay, less any unemployment benefits received", and remitted to Supreme Court for further  proceedings in accordance with its decision.

With respect to Plaintiff's concerns with the City's response to her FOIL requests, the Appellate Division said that "Because the record before [it] is insufficient to enable [the Court] to determine whether a legitimate basis existed for the City's responses to those portions of [Plaintiff's] requests, the Appellate Division remitted the matter to Supreme Court for in camera review of the requested FOIL items and a determination as to the merits of Petitioner's FOIL claims.

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

Selected items posted on the Internet during the week ending October 9, 2026

Recent sexual harassment court decisions Posted on the Internet by Labor and Employment Daily. Click HERE to access this listing.

Preparing for Medicaid's New Redetermination Mandates This paper explores practical strategies for preparing for more frequent eligibility reviews, strengthening constituent communications and reducing administrative burden without sacrificing the beneficiary experience. DOWNLOAD 

How the City of Newport News Is Raising the Bar for Open Government  Facing a surge in public records requests, Newport News centralized FOIA management to improve transparency, streamline compliance and strengthen public access to government information. READ NOW

What Drives Effective Government Leaders? Go beyond the headlines and hear candid conversations with Governing’s Public Officials of the Year. Listen to The Common Thread 

Keeping Public Services Accessible During Emergencies Power outages, severe weather, and equipment failures don't stop the need for public services. Learn how agencies can prepare for unexpected disruptions while maintaining reliable communications with staff and the communities they serve. DOWNLOAD 

As more colleges shut down, communities are looking to convert their campuses into housing. Zoning, costs and neighborhood opposition can make that harder than it sounds. Read More 

A Guide to AI Recruitment Technology for Public Sector Hiring Learn how AI-assisted recruiting can help agencies identify qualified candidates sooner, reduce sourcing work and manage the compliance and security considerations that come with hiring technology. DOWNLOAD 

Empowering Staff in the Field This guide explains how mobile-first augmented field operations systems infuse artificial intelligence, automation and real-time information into every stage of fieldwork. DOWNLOAD

5 Public Safety Trends for 2026 From AI-powered situational awareness to integrated real-time crime centers, this paper reveals how agencies can modernize systems to keep pace with escalating risks.  DOWNLOAD

New York's State Comptroller post State Agency Audits on the Internet

On October 9, 2026, New York State Comptroller Thomas P. DiNapoli  announced that the following State Government Accountability audits were released.

Click on the text highlighted in COLOR to access the audit posted on the Internet.

Office of Information Technology Services – Inventory Controls (Follow-Up) (2026-F-3)
The Office of Information Technology Services (ITS) is responsible for keeping an accurate inventory of hardware and software for the 50 state entities it fully supports. ITS also provides partial support to 38 state entities and operates 117 stockrooms statewide. A prior audit, issued in February 2025, found that ITS does not have the necessary controls in place to accurately and completely account for all workstations and other hardware assets for which it is responsible. Auditors found significant weaknesses related to inaccurate inventory, missing devices, and a lack of security over equipment and the information stored on devices at ITS stockrooms. ITS has made significant progress in addressing the issues identified in the initial audit report, implementing all eight of the initial report’s recommendations.

State Education Department – Access to Preschool Special Education Services (Follow-Up) 2026-F-5
Providing special education programs and services at an early age helps prepare a child with a disability to enter school ready to learn. Preschool special education is overseen by the State Education Department’s (SED) Office of Special Education, which works to promote educational equity and excellence for students with disabilities. A prior audit, issued in December 2024, found that preschool special education students may not be receiving all required services within required time frames, or, in some cases, may not be receiving them at all, due to waitlists maintained by local school districts resulting from a shortage of providers. SED made some progress in addressing the issues identified in the initial audit report. Of the initial report’s seven audit recommendations, three were implemented and four were partially implemented.

Department of Environmental Conservation – Oversight of Dam Safety (Follow-Up) 2026-F-9
To safeguard against loss of life and property due to flooding and dam failures, the Department of Environmental Conservation (DEC) manages a program that involves safety inspections, permitting, and regulatory compliance for approximately 6,500 dams throughout the state. A prior audit, issued in February 2025, identified areas where DEC can make improvements in oversight and enforcement of compliance with the state’s dam safety regulations, including Emergency Plans, Engineering Assessments, and Annual Certifications. DEC made progress in addressing the issues identified in the initial audit report, partially implementing the one recommendation.

State University of New York – Oversight of the Educational Opportunity Program (Follow-Up) (2026-F-8)
The State University of New York (SUNY) operates the Educational Opportunity Program (EOP), which provides access, support, and financial aid for disadvantaged students. A prior audit, issued in March 2025, found that while SUNY was monitoring EOP and campuses were generally using the funds for allowed purposes, there were some unallowable or insufficiently supported transactions and a lack of documentation showing that certain counseling services were provided to students. SUNY made significant progress in addressing the issues identified in the initial audit report, implementing both of the initial report’s recommendations.

Division of Homeland Security and Emergency Services and Office of Information Technology Services – Next Generation 911 Services (Follow-Up) (2026-F-14)
Next Generation 911 (NG911) is an upgrade to New York’s emergency communications system that transitions to a digital internet protocol-based network, which is faster and more resilient than the original analog infrastructure. The complex transition requires coordination among a variety of emergency communications, public safety, legislative, and governing entities. A prior audit, issued in June 2025, found that the Division of Homeland Security and Emergency Services (DHSES) was not effectively overseeing the development and implementation of the transition to NG911. Auditors also identified weaknesses in technical controls for systems supporting the Street and Address Maintenance program managed by the Office of Information Technology Services (ITS). DHSES and ITS made significant progress in addressing the issues identified in the initial audit report, implementing all three of the initial audit report's recommendations.

State Education Department (Preschool Special Education Audit Initiative) – Columbia County Arc d.b.a. The Starting Place: Compliance With the Reimbursable Cost Manual (2025-S-16)
NYSARC, Inc. Columbia County Chapter d.b.a. The Starting Place (TSP), a not-for-profit special education provider located in Hudson, is authorized by the State Education Department (SED) to provide full-day Preschool Special Class and full-day Preschool Integrated Special Class to children with disabilities who are between the ages of 3 and 4 years (referred to as the SED preschool cost-based programs). For the audit scope, TSP reported approximately $3.8 million in reimbursable costs for the SED preschool cost-based programs. Auditors identified $271,842 in reported costs that did not comply with the requirements.

State Education Department (Preschool Special Education Audit Initiative) – The Children’s Home of Kingston: Compliance With the Reimbursable Cost Manual (2025-S-7)
The Children’s Home of Kingston (CHK), a not-for-profit special education provider located in Kingston, is authorized by the State Education Department (SED) to provide School-Age Special Class services to children with disabilities ages 8 to 21 years (referred to as the SED cost-based program). For the audit scope, CHK reported approximately $6,289,798 in reimbursable costs for the SED cost-based program. Auditors identified $670,549 in reported costs that did not comply with the requirements.

State Education Department (Preschool Special Education Audit Initiative) – The Guild for Exceptional Children, Inc.: Compliance With the Reimbursable Cost Manual (2025-S-35)
The Guild for Exceptional Children, Inc. (GEC) is a New York City-based organization authorized by the State Education Department (SED) to provide Special Class (over 2.5 hours per day) and Integrated Special Class (over 2.5 hours per day) education services to children with disabilities who are between the ages of 3 and 5 years (referred to as the SED preschool cost-based programs). For the audit scope, GEC reported approximately $17.2 million in reimbursable costs for the SED preschool cost-based programs. Auditors identified $258,712 in reported costs that did not comply with the requirements.

 

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