Applying compensation limitations retroactively

Applying compensation limitations retroactively

People v Edward J. Murphy, 235 A.D.2d 554

In 1993 certain limitations on the amount of compensation that a BOCES Superintendent could receive were enacted into law [Chapter 295, Laws of 1993].

In the Murphy case the Appellate Division concluded that the limitations set out in Chapter 295 did not apply retroactively.

The case arose when the State attempted to recover a portion of what the Appellate Division described as an "overly generous BOCES compensation package (which included extensive sick and vacation leave time and the right to liquidate this leave at full-pay)" granted to its then BOCES Superintendent Edward J. Murphy.

The Court said that "while improvident, BOCES' offer to Murphy, and his acceptance of the overly generous BOCES compensation package ... did not violate any articulated public policy." 

Further, the Court ruled that although the law now places a limitation on the amount of compensation that a BOCES superintendent may receive, "at the time Murphy began working at BOCES and continuing throughout his tenure as the BOCES district superintendent, the law provided for no such restrictions. Accordingly, the Court decided, Murphy's employment agreements with BOCES were neither illegal nor unauthorized.

The ruling suggests that all or part of a "compensation package" in place prior to the effective date of the enactment or the amendment of a law limiting the compensation of a public officer or a public employee then in service may survive judicial challenge even if the compensation package is in excess of that authorized by the law as enacted or amended.

The decision is posted on the Internet at:

https://www.leagle.com/decision/1997789235ad2d5541272

Accessing the personnel records of law enforcement personnel

Accessing the personnel records of law enforcement personnel

Ferrara v Superintendent, Division of State Police, 235 A.D.2d 874,  Appeal dismissed, 90 N.Y.2d 829, Defendant's motion to dismiss appeal granted, 26 F.Supp.2d 410

A prisoner at the Oneida Correctional Facility, submitted a Freedom on Information request to the Division of State Police seeking "records of disciplinary action taken against members of the State Police" as the result of an internal investigation.

The Appellate Division, in sustaining the Division's refusal to provide such information, explained that such records are specifically exempted from disclosure under Civil Rights Law §50-a.

In a similar cases, Nassau County Police Department v Kevin, 237 A.D.2d 354, the Appellate Division quashed a judicial subpoena issued by a District Court that ordered the production of "internal police directives and orders" that it was alleged would establish the existence of a quota system for making arrests for driving while intoxicated on the Long Island Expressway. 

See, also, 166 Misc.2d 207. Here the driver of a motor vehicle had been arrested for allegedly driving 85 miles an hour while intoxicated by Nassau County Police. The Appellate Division said the driver presented nothing to support his claim and that a subpoena may not be used "to fish for impeaching material".

The decision is posted on the Internet at:

https://www.leagle.com/decision/19971109235ad2d8742420

Sending threatening texts messages to a co-worker

Sending threatening texts messages to a co-worker

OATH Index No. 2411/18

An employee was served with disciplinary charges pursuant to Section 7.5 of the Personnel Rules and Regulations of the Health and Hospitals Corporation alleging that he sent threatening text messages to another employee of the Corporation. The employee apologized for his actions the next day and subsequently took, and completed, five months of counseling and anger management training and received a certificate confirming that he had successfully completed the treatment program.

OATH Administrative Law Judge John B. Spooner, in consideration of the employee's sincere expressions of remorse and his substantial efforts to deal with his anger control issues, recommended that the appointing authority impose a penalty of a 60-day suspension, without credit for employee's 30-day pre-hearing suspension without pay.

Section 7.5.5 of HHC's Personnel Rules and Regulations, "Sustaining of Charges - Penalty," provides as follows:

If the charges are sustained, the penalty or punishment may consist of the following and the time which the employee is suspended without pay pending the hearing may be considered as part of the penalty:

a) A reprimand; or
b) A fine not to exceed $100.00 to be deducted from his/her salary; or
c) Suspension without pay not exceeding two months; or
d) Demotion in grade and title; or 
e) Dismissal from service.

Similarly, §75.3 of the Civil Service Law provides, in pertinent part, "that the time during which an officer or employee is suspended  without pay may be considered as part of the penalty."

However both §7.5.4 of the Personnel Rules and Regulations of the Health and Hospitals Corporation and §75.3 of the Civil Service Law, in pertinent part, state that if the employee is acquitted of the disciplinary charges, the individual shall be restored to the position with full pay for the period of the suspension without pay, less the amount of any unemployment insurance benefits or wages the individual received during that period.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-2411.pdf

_________________

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NYS Liberty Defense Project and Catholic Charities of New York launch statewide pro bono project to expand legal services for immigrants

NYS Liberty Defense Project and Catholic Charities of New York launch statewide pro bono project to expand legal services for immigrants

Source: New York State's press release system

New York State’s Liberty Defense Project and Catholic Charities of the Archdiocese of New York today announced the formal launch of a new platform to support Catholic Charities and the Liberty Defense Project's Pro Bonoprogram.   

This first-of-its-kind statewide project in New York identifies immigration cases through community legal clinics and refers them to volunteer legal representatives, increasing statewide access to free legal services for low-income and vulnerable immigrants.

The URL https://www.catholiccharitiesnyprobono.org is the projects Internet site and is funded by the Liberty Defense Project. The site provides volunteers with the tools to competently and effectively assist the most vulnerable immigrants. This all-inclusive site provides volunteers with the ability to review available cases, sign up for short-term and case placement volunteer opportunities, learn more about the work of the Pro Bono Project and access a wealth of training materials and practice templates. The online volunteer portal comes with more than 100 practice tools and web-based training, with new materials added as needed.

Every Pro Bono Project volunteer advocate will receive expert legal training and mentorship in each stage of a case and at each service event in which they choose to participate, so that each client will receive the highest quality assistance in furtherance of Catholic Charities’ mission to recognize the dignity of each person and strive for a just and compassionate society.

Through the Pro Bono Project, Catholic Charities assists volunteer advocates to:

● Prepare affirmative asylum applications for individuals afraid to return to their homes;

● Litigate asylum cases for mothers and children fleeing gang violence in Central America;

● Help unaccompanied immigrant children obtain special humanitarian protection due to abuse, neglect or abandonment;

● Empower survivors of violence to find safety, stability, and status through US immigration laws designed to protect victims of crime, trafficking, and familial abuse;

● Assist immigrants to reunify with family members, both here and through overseas processing.

On the website volunteers can choose to express their interest as well as search and review available cases that need legal representation. The Pro Bono Project recruits and engages volunteer attorneys in numerous ways including bi-monthly newsletters, building on existing law firm relationships as well as creating new partnerships with firms through outreach, engagement with local bar associations throughout New York State, and individual connectivity with private bar attorneys who express interest through a variety of channels, agency-wide. Private bar pro bono volunteer advocates’ (PBVAs) caseload will be approximately one to two cases per volunteer attorney, where firms will see more of a variance, on average, two to ten per firm.

As of February 1, 2019, Catholic Charities has placed 105 pro bono cases with volunteer attorneys throughout New York State. Its Pro Bono Volunteer Advocate network has grown to more than 230 dedicated volunteer attorneys, and more than 600 New Yorkers reached out to Catholic Charities following the family separation crisis last summer to learn about how they could support efforts, including more than 265 attorneys expressing interest in joining the Pro Bono Project.

In 2017, Governor Cuomo launched the Liberty Defense Project – the first-in-the-nation, state-led public-private project to assist immigrants – regardless of status – in obtaining access to legal services and process. The project is administered by the Governor’s Office for New Americans and run in partnership with law firms, legal associations, advocacy organizations, major colleges and universities and bar associations. 

The Liberty Defense Project provides:

● Free legal consultations and screenings for immigrants throughout New York State.

● Direct representation to immigrants in deportation proceedings as well as other cases.

● Help with filing immigration applications for naturalization, employment authorization, permanent residency, etc.

● "Know Your Rights" training for immigrants and the community at large.

The New York State 2019 - 2020 Budget Bill

The New York State 2019 - 2020 Budget Bill
Senate 1506 [Same as Assembly 2006]

Division of Budget; Part A through, and including, Part Z.

The text of the Budget Bill is posted on the Internet at:

http://public.leginfo.state.ny.us/navigate.cgi?NVDTO:+&QUERYDATA=S1506+&QUERYTYPE=BILLNO

To access the text and the summary of the bill, etc., check "text" or "summary," etc., and then "click on" Search."

   StatusTextSummarySponsor's Memo

./

The timely filing of a notice of claim required by Education Law §3813(1) does not toll the running of the statute of limitations for commencing a lawsuit

The timely filing of a notice of claim required by Education Law §3813(1) does not toll the running of the statute of limitations for commencing a lawsuit
Bratge v Simons, 2018 NY Slip Op 08778, Appellate Division, Fourth Department

Among the issues raised by Plaintiffs in this appeal was the claim that Supreme Court erred in dismissing the complaint as barred by statute of limitations. Plaintiffs argued that the action was timely commenced by Plaintiffs because they had served a notice of claim within the relevant limitations period. The Appellate Division disagreed, explaining that "the filing of the notice of claim did not toll the [running of the] statute of limitations" with respect to their cause of action.

Plaintiffs also argued that the breach of contract claim in their first cause of action did not accrue until they were able to access damages they allegedly suffered. Again the Appellate Division disagreed, stating that an action for an alleged breach of contract accrues at the time of the breach even if "no damage occurs until later." Consequently, said the court, "that claim accrued at the time of the alleged breach ... and thus it was time-barred under the one-year statute of limitations in Education Law §3813 (2-b)."

Plaintiffs also argued that a claim in their first cause of action alleging a violation of Plaintiffs' due process rights was not time-barred under the continuing wrong doctrine. This argument was also rejected by the Appellate Division. The court observed that the continuing wrong doctrine allows a later accrual date of a cause of action "where the harm sustained by the complaining party is not exclusively traced to the day when the original objectionable act was committed." In other words, the "continuing wrong,” is deemed to have accrued on the date of the last wrongful act.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08778.htm

Retaliation against an employee for reporting improper governmental action prohibited by Civil Service Law §75-b, the "Whistleblower Statute"

Retaliation against an employee for reporting improper governmental action prohibited by Civil Service Law §75-b, the "Whistleblower Statute"

Lilley v Greene Cent. Sch. Dist., 2019 NY Slip Op 00019, Appellate Division, Third Department

Jordon Lilley reported to Gordon Daniels, the interim superintendent of the Greene Central School District[School District], that an employee under Lilley's supervision had allegedly engaged in misconduct by texting while driving and punching in time cards of other employees who had not yet arrived at work, including the employee's daughter.

Lilley alleges that Daniels told him that "despite a recommendation from the school district's counsel to terminate [the employee]," no action would be taken against the employee. Lilley subsequently reported the employee's alleged misconduct to the State Police and appeared before the school district's Board of Education to report the same alleged employee misconduct.

According to Lilley, the day after appearing before the School Board he was placed on administrative leave and was served with charges alleging "incompetence and/or misconduct" pursuant to Civil Service Law §75. The notice of discipline set out five separate charges, including that Lilley's alleged breach General Municipal Law §800 by selling the school district field lime and rock salt from Lilley Farms, which is owned by Lilley and his wife, and that such sales constituted a conflict of interest.

Lilley then commenced this action pursuant to Civil Service Law §75-b, the so-called "Whistle Blower Statute," seeking, among other things, damages and reinstatement to his former position. Supreme Court, among other things, granted the School District's motion to dismiss Lilley's complaint, finding that documentary evidence submitted in support of the School District's motion, which included price quotes and purchase orders/requisitions regarding the sale of field lime and rock salt from Lilley Farms to the School District, warranted dismissal of Lilley's complaint. Lilley appealed.

Citing Matter of Kowaleski [New York State Dept. of Correctional Servs.], 16 NY3d 85, the Appellate Division noted that "Civil Service Law §75-b prohibits a public employer from taking disciplinary action to retaliate against an employee for reporting improper governmental action." Although a claim pursuant to §75-b cannot be sustained when a public employer has a separate and independent basis for the action taken, "[a] disciplinary action may be retaliatory even where an employee is guilty of the alleged infraction." Further, said the court, a motion to dismiss pursuant to CPLR 3211 (a) (1) "is properly granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law."

The Appellate Division the held that Supreme Court erred procedurally and substantively in dismissing Lilley's complaint based upon documentary evidence purportedly demonstrating that he had violated General Municipal Law §800, thereby "vitiating [Lilley's] retaliation claim" as the School District's evidence failed to "conclusively establish" that Lilley possessed any of the authority enumerated in General Municipal Law §801 creating a conflict of interest. In fact, said the Appellate Division, Supreme Court's decision is devoid of any reference to the factors enumerated in General Municipal Law §801 and thus Supreme Court improperly granted the School District's motion to dismiss Lilley's petition.

The Appellate Division also found that Supreme Court erred in the substantive application of Civil Service Law §75-b with respect to the School District's contention that an independent basis existed for its placing Lilley on administrative leave.

To assert a whistle blower claim under Civil Service Law §75-b, the individual must allege (1) an adverse personnel action; (2) disclosure of information to a governmental body (a) regarding a violation of a law, rule, or regulation that endangers public health or safety, or (b) which [the individual] reasonably believes to be true and which [he or] she reasonably believes constitutes an improper governmental action; and (3) a causal connection between the disclosure and the adverse personnel action."

The element of causation requires "that 'but for' the protected activity, the adverse personnel action by the public employer would not have occurred." Supreme Court found that the purported General Municipal Law violation sufficed as a separate and independent basis for the adverse action and dismissed Lilley's claim. However, even assuming that the General Municipal Law violation is ultimately demonstrated, the trial court must make "a separate determination regarding the employer's motivation" to ensure against pretextual dismissals and "shield employees from being retaliated against by an employer's selective application of theoretically neutral rules."

The Appellate Division modified the Supreme Court's ruling "on the law" by reversing the court's granting of the School District's motion to dismiss Lilley's amended complaint and remitted the matter to the Supreme Court to permit the School District to serve an answer to Lilley's complaint.

In contrast, the Appellate Division held that Supreme Court properly denied Lilley's cross motion seeking to disqualify Lynch and his law firm as the School District's counsel, explaining that "When considering a motion to disqualify counsel, the court must consider the totality of the circumstances and carefully balance the right of a party to be represented by counsel of his or her choosing against the other party's right to be free from possible prejudice due to the questioned representation." In his affidavit, Lilley states that Lynch is a "critical witness" because he "was likely the attorney who recommended [that the employee] be terminated" and he "followed [Daniels'] directions with respect" to the disciplinary charges [filed] against [Lilley]."

Lilley, said the court, argued that the crime-fraud exception applies to the attorney-client privilege between Lynch and the School District. However the Appellate Division found that "there is no factual basis for finding that Lynch's alleged recommendation and his involvement in the disciplinary charges against Lilley are committed in furtherance of a fraud or crime." As Lynch's testimony will relate solely to the nature of his legal services rendered in the case and the disciplinary action, Lilley failed to demonstrate that he is entitled to disqualification of Lynch and his law firm from representing the Defendants.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00019.htm

Failure to effect proper service of all of the necessary documents as mandated by law is fatal to a court attaining jurisdiction over the state parties in the action

Failure to effect proper service of all of the necessary documents as mandated by law is fatal to a court attaining jurisdiction over the state parties in the action

Randolph v Office of The N.Y. State Comptroller, 2019 NY Slip Op 00167, Appellate Division, Third Department

The petitioner in this action, David L. Randolph, applied for disability retirement benefits. His application was denied by the Comptroller following a hearing. Randolph, acting pro se,* appealed the Comptroller's decision and sent the notice of petition, verified petition and supporting documents by certified mail to Office of the New York State Comptroller, the Office of the Attorney General and the Supreme Court in Albany County.

Randolph, however, failed to "personally deliver these documents to an Assistant Attorney General or to the Attorney General" as required by §307.1 of the Civil Practice Law and Rules.** The Office of the State Comptroller moved to dismiss the proceeding for "lack of personal jurisdiction." Supreme Court granted the motion, and Randolph appealed the Supreme Court's ruling.

The Appellate Division affirmed the lower court's ruling, explaining "[h]aving failed to obtain an order to show cause authorizing service by mail in lieu of personal service" Randolphused the certified mail method to effectuate service upon the Comptroller." This method, said the court, "requires that the pleadings be sent by certified mail, return receipt requested, to the Comptroller, and that they also be served upon the State of New York by personally delivering them to an Assistant Attorney General or to the Attorney General."

The record indicated that Randolphdid not personally deliver the notice of petition, verified petition, and other documents to an Assistant Attorney General or to the Attorney General. This, said the Appellate Division, is a jurisdictional defect and, in the words of the Appellate Division "Supreme Court properly dismissed the petition, and the merits of the underlying determination are not before us."

* Pro se is a Latin phrase meaning "for oneself" or "on one's own behalf", e.g., acting as one's own attorney.

** §307.2 of the CPLR, addresses "Personal service on a state officer sued solely in an official capacity or state agency" and provides, in pertinent part, "...and by personal service upon the state in the manner provided by subdivision one of this section." §307.1 of the CPLR, Personal service upon the state, provides that such service "shall be made by delivering the summons to an assistant attorney-general at an office of the attorney-general or to the attorney-general within the state."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00167.htm

Proof an individual must submit to a court to recover damages for an alleged breach of contract and an alleged tortious interference with prospective economic advantage

Proof an individual must submit to a court to recover damages for an alleged breach of contract and an alleged tortious interference with prospective economic advantage

Mehrhof v Monroe-Woodbury Cent. Sch. Dist., 2019 NY Slip Op 00110, Appellate Division, Second Department

Edward J. Mehrhof [Superintendent] and the Board of Education of the Monroe-Woodbury Central School District [Board] entered into a three year  "Superintendent's Employment Contract" [Contract]. Paragraph 14 of the Contract provided that the Superintendent could be discharged from employment prior to the expiration its three-year term for "good and just cause" upon a majority vote of the entire Board.

Subsequently the Contract was, from time to time, amended and ultimately provided for its extension  through June 30, 2015 with the caveat that "the Board may meet by January 30, 2015, to consider extending [Superintendent's] employment for an additional year."

In a writing labeled "Statement of Reasons for Termination" dated May 22, 2014, the Board terminated Superintendent's employment pursuant to paragraph 14 of the amended superintendent's contract whereupon Superintendent notified the Board that he was appealing the termination of his employment to an independent hearing officer designated by the Board."

On June 14, 2014 the Board's attorney wrote Superintendent that "regardless of the result of the appeal to a hearing officer, [Superintendent's] contract would not continue beyond June 30, 2015." The Board memorialized its attorney's letter with a formal resolution dated July 8, 2014. Superintendent did not pursue his appeal to a hearing officer.

In September 2015, Superintendent served a notice of claim on the Board and in May 2016 he commenced an action against the Board in Supreme Court seeking to recover damages for the Board's alleged breach of contract and its alleged  "tortious interference with prospective business advantage." The Board move to dismiss the Superintendent's complaint. In support of its motion to dismiss, the Board submitted, among other things, the Superintendent's amended complaint, the contract between the parties, the amended Superintendent's contract and the Board's resolution. The Supreme Court granted the Board's motion to dismiss Superintendent's petition and Superintendent appealed that ruling to the Appellate Division.

The Appellate Division said that in considering a motion to dismiss a complaint the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. The court then explained that order to state a cause of action to recover for tortious interference with prospective economic advantage, the plaintiff must allege a specific business relationship with an identified third party with which the defendants interfered, citing a number of court decisions including Burns Jackson Miller Summit & Spitzer v Linder, 88 AD2d 50, 72, affd 59 NY2d 314).

Agreeing with the Supreme Court's finding that Superintendent "did not adequately plead a cause of action to recover for tortious interference with prospective economic advantage," the Appellate Division noted that Superintendent "did not identify any third parties with which he had a current or prospective economic relationship." In addition, and to the extent that Superintendent alleged that the Board interfered with a prospective contract, rather than an existing contract, the Appellate Division again agreed with the Supreme Court's determination that Superintendent "failed to adequately allege that Board engaged in the requisite culpable conduct."**

Finally the Appellate Division sustained Supreme Court's determination that the documents submitted by the Board refuted Superintendent's allegations that [1] he was entitled to recover accrued benefits for the 2014-2015 school year and [2] since Superintendent's employment was not automatically renewed for the 2015-2016 school year, he was not entitled to any damages for salary and benefits for that school year.

* In support of its motion to dismiss Superintendent's petition, the Board submitted, among other papers, Superintendent's contract, the amended contracts between the parties and the Board's relevant resolutions.

** In support of its motion to dismiss Superintendent's complaint, the Appellate Division noted that the Board had submitted  "documentary evidence" within the meaning of CPLR §3211(a)(1) reflecting official out-of-court transactions concerning Superintendent's employment and his termination.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00110.htm

Elements considered by courts in reviewing an individual's appeal of an adverse disciplinary decision by an appointing authority

Elements considered by courts in reviewing an individual's appeal of an adverse disciplinary decision by an appointing authority

Thomas v Town of Southeast, 2019 NY Slip Op 00446, Appellate Division, Second Department

In an employee disciplinary matter conducted pursuant to §75 of the Civil Service Law, judicial review of factual findings made after a hearing is limited to consideration of whether that determination was supported by substantial evidence. Further, in the event there is conflicting evidence, or different inferences that may be drawn from the evidence, the duty of weighing the evidence and making the choice rests solely upon the appointing authority and courts may not weigh the evidence or reject the choice made by the appointing authority where the evidence is conflicting and room for choice exists.

Timothy Thomas, an employee of by the Town of Southeast Highway Department was served with disciplinary charges pursuant to §75 alleging that he had committed various acts of misconduct over a period of some 10 months including instances of disobeying the orders of a superior, including one instance in which his failure to follow the directions of the highway department Superintendent allegedly placed the Thomas, a coworker, and the general public in danger; being absent from work for two days without obtaining prior approval for such absence; and threatening and physically confronting the Highway Department Superintendent in the Department's garage.

At the disciplinary hearing Thomas denied the alleged charges of misconduct while a number highway department employees testified to the contrary. In addition, relevant camera surveillance footage, as well as audio recordings, was introduced into evidence by the Town in support of charges it had filed against Thomas and was made part of the record by the hearing officer.

At the conclusion of the hearing, the hearing officer found the Thomas guilty of some, but not all, of the charges filed against him. The hearing officer recommended Thomas be terminated from his employment "given the nature of the incidents, [Thomas'] lack of credibility and lack of remorse, and his previous disciplinary suspension of five days for harassing a co-worker and improper performance of his duties, as well as previous reprimands."

The appointing authority adopted the hearing officer's findings and recommendation and terminated Thomas' employment, whereupon Thomas filed a petition pursuant Article 78 of the CPLR seeking a judicial review of the Town's action.

The Appellate Division dismissed Thomas' appeal, explaining that any credibility issues were resolved by the hearing officer (see Matter of Reed v Raynor, 151 AD3d 730), and substantial evidence in the record supported the determination that the Thomas was guilty of the misconduct alleged in the surviving charges of misconduct.

The Appellate Division noted that a court may set aside an administrative disciplinary penalty only if it is so disproportionate to the offense as to be shocking to one's sense of fairness (see Matter of Walden v Town of Islip, 6 NY3d 735), and although "reasonable minds might disagree over what the proper penalty should have been," such a consideration does not provide a basis for a court to "refashioning the penalty," citing City School Dist. of the City of N.Y. v McGraham, 17 NY3d 917. 

The Appellate Division decided that the penalty imposed on Thomas' by the appointing authority, dismissal from his employment, "is not so disproportionate to the offenses as to be shocking to one's sense of fairness, especially in light of the number of incidents and the petitioner's prior disciplinary record."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00446.htm

_________________

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Twenty-six New York State school districts designated as being in "fiscal stress"

New York StateComptroller Thomas P. DiNapoli reports 26 school districts in New York State are in "fiscal stress"

Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in color

Twenty-six school districts have been designated as fiscally stressed under New York State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System.* Although the same number of districts were designated in fiscal stress last year, many of the entities in this year’s list have changed. Only 12 were designated as stressed in both 2018 and 2017.

Using financial indicators that include year-end fund balance, cash position, short-term borrowing and patterns of operating deficits, DiNapoli’s monitoring system creates an overall fiscal stress score which drives the classification.

“Despite the ongoing financial pressures facing school districts, our fiscal stress monitoring system has revealed encouraging results in several communities,” said DiNapoli. “However, school boards and superintendents must remain cautious. Today’s budget decisions can have long-lasting implications and can quickly move a district into fiscal stress.”

This year, five school districts are designated in “significant fiscal stress” and the remaining 21 as “susceptible to fiscal stress.” The scores are based on the evaluation of 672 school districts with fiscal years ending on June 30, 2018.

The five school districts that were classified in “significant stress” are Eldred (Sullivan County); New Suffolk (Suffolk); Norwich (Chenango); Schenevus (Otsego) and Wyandanch (Suffolk).

A report released by DiNapoli today in conjunction with the fiscal stress scores showed the regions of Central New York, Long Island and the Southern Tier as those having comparatively high percentages of districts in fiscal stress.

The scores are based on financial information submitted as part of each district’s ST-3 financial report filed with the State Education Department as of Dec. 28, 2018.

* N.B. This announcement does not include scores for the dependent school districts in the “Big Four” cities of Buffalo, Rochester, Syracuse and Yonkers. Information for these districts will be incorporated into the scoring for their respective cities later this year. The monitoring system does not score New York City.

For a list of school districts designated in fiscal stress, visit:

https://www.osc.state.ny.us/localgov/fiscalmonitoring/schools/pdf/2018/stress-list.pdf

For the complete list of school district fiscal stress scores, visit:

https://www.osc.state.ny.us/localgov/fiscalmonitoring/index.htm

For a copy of the fiscal stress report, visit:

https://www.osc.state.ny.us/localgov/fiscalmonitoring/pdf/common-themes-for-school-year-2017-18.pdf

Mitigation of the disciplinary penalty to be imposed found warranted under the circumstances

Mitigation of the disciplinary penalty to be imposed found warranted under the circumstances

OATH Index No. 2137/18

A New York City correction officer was charged with using excessive force against an inmate and submitting a false report.

A video of the incident and respondent’s testimony indicated that a newly-admitted inmate resisted processing. When the correction officer attempted to guide the inmate to a table, the inmate swatted the correction officer's hand away and attempted to spit in the correction officer's face. The correction officer admitted that his hand was briefly was on the inmate’s neck as he tried to push the inmate away.

OATH Administrative Law Judge Noel R. Garcia sustained the excessive force charge but he recommended dismissal the false report charge. Judge Garcia found the correction officer’s written statement was consistent with the video evidence.

The ALJ recommended that correction officer be suspended for thirty-five days without pay, finding mitigation of the penalty was warranted based on the fact that the use of force was set in motion by the inmate’s belligerence, that the inmate did not suffer any injury, consideration of the correction officer’s long service record, and that the correction officer accepted responsibility for his actions.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-2137.pdf

______________

Click here to Read a FREE excerpt from A Reasonable Disciplinary Penalty Under the Circumstances, a guide to disciplinary penalties imposed on officers and employees of New York State and its political subdivisions.