State employees sued in a civil action for deprivation of rights brought pursuant to 42 U.S.C. §1983 assert a qualified immunity defense

The Second Circuit United States Circuit Court of Appeals' decision summarizes the events giving rise to this litigation as follows:

1. In 2008 an educator [Plaintiff] was investigated by the New York State Education Department [Department] and charged committing acts of sexual misconduct  in 1989 and 1992 with former students, resulting in a one-year suspension of his state licenses;

2. In 2011 Plaintiff obtained employment as a substitute teacher with another School District [District] in New York State;

3. In 2012 the Department informed the Districtʹs superintendent that it "had opened an ethics investigation" into Plaintiff's conduct;

4. Plaintiff was terminated from his substitute teaching position with the District;

5. Employees of the Department [Defendants] ultimately concluded that there were no grounds for an investigation.

Plaintiff brought suit in federal district court pursuant to 42 U.S.C. §1983 with respect to the termination of his employment by the District against the Defendants, whereupon the Defendants asserted a qualified immunity defense.*  

The district court denied the Defendantsʹ motion for summary judgment without addressing the Defendants' claimed qualified immunity defense.  In response to Defendants' motion for reconsideration, the district court, addressing that issue for the first time,  concluded that the Defendants were not entitled to qualified immunity because Plaintiff had demonstrated that Defendants "had violated clearly established law."

Defendants appealed, arguing that the district court erred in denying their motion for summary judgment based on the claim of having qualified immunity.  The United States Court of Appeals, Second Circuit, sustained Defendants' appeal, explaining that:

[a] Plaintiffʹs due process claim failed because he did not show a clearly established right to the meaningful opportunity to utilize his teaching license;  and

[b] Plaintiff also failed to demonstrate that the Defendantsʹ conduct was sufficiently stigmatizing under clearly established law so as to give rise to his  ʺstigma-plusʺ claim.  

Accordingly, the Circuit Court ruled that the Defendants were entitled to qualified immunity and that the district court erred in denying their motion for summary judgment.

As the coda to the decision, the Circuit Court opined that "We are not unsympathetic to [Plaintiff], who may have been unfairly treated by the [Defendants] with unfortunate results.  But for the reasons set forth [in its opinion, Defendant's] behavior did not give rise to a cause of action under section 1983 that could survive the [Defendantsʹ] qualified immunity defense." **

* In Doninger v. Niehoff, USCA, Second Circuit, 642 F.3d 334, writ of certiorari denied, 132 S.Ct. 499, the court addressed the issue of determining if a public officer may claim a qualified immunity from civil lawsuits. The Second Circuit said that two tests are involved in determining if a claim of qualified immunity is available to the officer or the employee. The first test: considering “the facts" in the light most favorable to the plaintiff, do they show that the [individual's] conduct violated a constitutional right. If the plaintiff’s cause of action survives this test, the court then applies a second test: whether the right at issue was ‘clearly established’ at the time of [the official's] alleged misconduct.” If the court finds that the public officer’s conduct did not violate a clearly established constitutional right, or if it was objectively reasonable for the officer to believe that his or her conduct did not violate such a right, then the official is protected by qualified immunity. 

** See https://publicpersonnellaw.blogspot.com/2018/02/sovereign-immunity-absolute-immunity_12.html addressing Sovereign Immunity, Absolute Immunity, Qualified Immunity, Use Immunity, Transaction Immunity and Qualified Privilege claims that may be advanced by public officers and employees involved in litigation and, or, administrative hearings.

The decision is posted on the Internet at: 

http://www.ca2.uscourts.gov/decisions/isysquery/6fedbfbb-bee0-4f8a-9932-91f93897f8a5/4/doc/18-1298_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/6fedbfbb-bee0-4f8a-9932-91f93897f8a5/4/hilite/

Considering certain arguments advanced by a petitioner for a new trial following an adverse decision

The appellant [Plaintiff] in this action sued his employer, a public institution of higher education and a number of its administrators as individual defendants [Defendants] alleging that he was not reappointed to his teaching position in retaliation for his complaints alleging unlawful discrimination. A jury ultimately returned a verdict in favor of the Defendants and Plaintiff appealed the federal district court's judgment and denial of his motion for a new trial.

Among the issues raised by Plaintiff in his appeal were the following:

1. The district court's evidentiary rulings.

The United States Circuit Court of Appeals, Second Circuit, said that such ruling are reviewed for abuse of discretion, citing Manley v. AmBase Corp., 337 F.3d 237, and “[u]nless justice requires otherwise, no error in admitting or excluding evidence -- or any other error by the court or a party -- is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order." Further, said the court, at every stage of the proceeding the court must disregard all errors and defects that do not affect any party’s substantial rights. 

Applying this deferential standard of review, the circuit court ruled that the district court did not exceed the bounds of its discretion in admitting Plaintiff's teaching evaluations from his previous university for two purposes: (a) to impeach Plaintiff’s credibility given his representation that he generally received good teaching evaluations; and (b) to provide after-acquired evidence of misrepresentations that could mitigate damages. In this instance, said the court, the district court "reasonably determined that the probative value of such evidence for impeachment purposes outweighed any potential prejudicial effect because [Plaintiff's] credibility was critical to his retaliation claim."

2. The district court's jury instruction concerning "after-acquired evidence."

The Circuit Court found that Plaintiff had failed to object to the challenged instruction during the trial and a  party who fails to object to a jury instruction at trial waives the right to make that instruction the basis for an appeal. Further, observed the court, assuming that Plaintiff had objected to this instruction, any error would be harmless because it relates only to the calculation of damages and in this instance the jury found for the Defendants and, thus, never calculated damages.

3. Denial of Plaintiff's motion for Venue Transfer.

To successfully challenge the denial of a motion to transfer of venue after entry of a final judgment, a party must demonstrate that the outcome of the trial would have been different had the case been transferred. The circuit court found that Plaintiff failed to meet this burden as he did not contend that the outcome of his trial would have been different in the Southern District of New York. The court also noted that Plaintiff's claim that "a Title VII retaliation claim cannot get a fair hearing in the Northern District [of New York] is belied by the fact that a jury found in his favor at [Plaintiff's] first trial" in the course of this litigation.

4. Challenges to the district court’s discovery rulings.

Although Plaintiff complained that he was prejudiced by the district court’s limitation on his discovery request, the Circuit Court observed that Plaintiff "failed to seek any additional discovery from the [district] court despite the court’s express invitation to do so." In addition, observed the Circuit Court, Plaintiff never objected to the Defendants’ compliance with the court orders until after his second trial resulted in a verdict against him, when he raised it for the first time as a ground for a new trial. Having failed to reserve these issues below, the Circuit Court held that Plaintiff cannot now pursue them on appeal and deemed them waived.

5. Denial of Plaintiff's motion for a new trial on the ground that the jury’s verdict was against the weight of the evidence.

The Circuit Court of Appeals explained that "It is well established that '[a] district court’s denial of a motion for a new trial on weight-of-the-evidence grounds, is not reviewable on appeal", citing Rasanen v. Doe, 723 F.3d 325.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/6daacf97-43d4-4cc0-bde4-e05fc35168b9/1/doc/17-3512_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/6daacf97-43d4-4cc0-bde4-e05fc35168b9/1/hilite/

An appointing authority may, as a matter of discretion, elect not to fill a vacant position notwithstanding the availability of an appropriate eligible list for the position

After reviewing the duties and responsibilities of the position of stenographer then  held by Plaintiff, the County Civil Service Commission advised  the Appointing Authority that it had reclassified the position to senior stenographer. The Commission then certified the promotion list for senior stenographer to the Appointing Authority. Plaintiff's name was first on the list certified to the Appointing Authority.

The Appointing Authority returned the list to the Commission, indicating that "it would not be making an appointment to the position of senior stenographer at that time."*

Plaintiff sued, seeking a court order compelling the Appointing Authority to appoint her to the reclassified position, an action "sounding in mandamus."** Supreme Court never reached the merits of Plaintiff's claim as it dismissed her petition on the grounds that it was untimely. The Appellate Division affirmed the lower Court's ruling explaining  that although Plaintiff knew that Appointing Authority was not going to appoint her to the position of senior stenographer, she waited more than six months before commencing her CPLR Article 78 action.

The Court pointed out that "before commencing a proceeding in the nature of mandamus, it is necessary to make a demand and await a refusal and the Statute of Limitation begins to run on the date of the refusal and expires four months later." A party, however, cannot delay in making his demand, thereby extending indefinitely the period during which he or she is required to take action. In this instance the Appellate Division decided that Plaintiff had not proceeded with sufficient promptness in making her demand and thus the doctrine of laches barred her from suing.***

Although Plaintiff's action was found untimely and thus not decided on the merits, as a general proposition an appointing authority cannot be required to fill a vacant position, even if there is an appropriate eligible list available. For example, in Porto v Town of Harrison, 100 AD2d 870, the Appellate Division said that an individual on an eligible list does not have a "presumptive right" to appointment." 

In the event a court or a civil service commission is confronted with an eligible's demand to be appointed to the vacancy sought, it will typically decline to act on the ground that it lacks the power to command an appointing authority to fill a vacancy, which is  a power vested in the appropriate appointing authority.

Indeed, the genesis of the modern "rule of three"  is the Court of Appeals' decision in People v Mosher, 163 NY 32 as prior to 1900 New York State civil service appointments from eligible lists were based on "the rule of one," also referred to as "the rule of the list." This rule mandated the appointment of the candidate standing highest on the eligible list certified by the responsible civil service commission to the appointing authority. In 1900 "the rule of one" was struck down by the high court as unconstitutional. 

In Mosher the Court explained that "if the civil service commissioners have power to certify to the appointing officer only one applicant of several who are eligible and whom they have, by their own methods, ascertained to be fitted for a particular position, and their decision is final ... then the civil service commission becomes and is the actual appointing power."

This decision prompted establishment of the so-called "rule of three," currently set out in Section 61.1 of the Civil Service Law. Section 61.1 permits the appointing authority to select from among those attaining the highest scores on the eligible list and who are interested in the appointment. The rule of three was ruled valid by the Court of Appeals in People v Gaffney, 201 NY 535, a case decided in 1911.****

However, the so-called Rule of Three is not literally "the rule of three."

In applying the Rule of Three, tie scores can allow the appointing authority to make its selection from among far more than three eligibles. For example, if the eligible list consists of one candidate having a score of 100, a second with a score of 99 and 60 candidates each with a score of 98, all 62 eligibles will be deemed "reachable for appointment." On the other hand, if there is but one vacancy to fill and 60 individuals attained a score of 100 while one eligible had a score of 99 and another eligible had a score of 98, the appointing authority may only select from among the "top 60" eligibles and may not consider either of the two lower scoring eligibles for the appointment.

Further, under certain circumstance, Section 60.1 of the Civil Service Law permits the responsible civil service commission to combine two eligible lists in order to provide a "mandatory list" -- a list consisting of at least three qualified candidates willing to accept the position.

In contrast, the "rule of one" is mandated in situations involving reinstatement from a preferred list. Where a preferred list is certified, the appointing authority must appoint the most senior individual on the preferred list willing to accept the appointment or keep the position vacant.

In addition, the Court of Appeals has concluded that no strong public policy prohibits an appointing authority from agreeing to be bound by a "rule of one" -- appointing the eligible standing highest on the list certified to fill the position -- in the course of collective bargaining where a probationary period must be successfully completed in order for the appointee to attain tenure in the position.

* Although the decision does not indicate Plaintiff's status following the reclassification of her former position, as public policy disfavors "reclassifying an individual out of a job" presumably Plaintiff was reassigned to another available stenographer position.

** A writ of mandamus is one of a number of "ancient writs" and was issued by a court to command the performance of an official or ministerial duty by a public officer or a lower court. A Writ of Prohibition is another of the "ancient writs." It is issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal, typically on the grounds that the lower tribunal "lacked jurisdiction." Other "ancient writs" include the writ of injunction - a judicial order preventing a public official from performing an act. New York State's Civil Practice Law and Rules [CPLR] sets out the modern equivalents of the surviving ancient writs.

*** Laches results from the failure of a party to initiate action to enforce a claimed right before the expiration of the controlling statute of limitations.

**** See, also, Matter of Snyder, 132 A.D.2d 905, 907, aff'd 72. N.Y.2d 981, a case involving an employee eligible for contingent permanent appointment to a temporarily vacant position did not attain such status as the result of his being  provisionally appointed to the temporary vacancy absent the appointing authority affirmatively designating the appointment as "contingent permanent." The Court of Appeals explained that said that making an appointment on a contingent permanent basis was discretionary and that the appointing authority did not have to make such an appointment merely because it was possible to do so.

The decision is posted on the Internet at:

https://www.leagle.com/leaglesearch?cite=239+A.D.2d+415+

Individual caring for an ailing family member is not a member of a protected class under New York State's Human Rights Law

In an action commenced pursuant to CPLR Article 78 and Executive Law §298, Plaintiff challenged the New York State Division of Human Rights' [SDHR] finding that there was no probable cause to believe that her employer [Employer] had engaged in any unlawful discriminatory practice against her. The Appellate Division affirmed the Supreme Court's decision denying Plaintiff's petition.

The Appellate Division explained that Plaintiff's challenging SDHR's determination of "no probable cause" with respect to her complaint based on her status as a caregiver for a member of her family failed as a matter of law as serving as a care giver for an ailing family member is not a protected activity under the State's Human Rights Law.

With respect to Plaintiff's allegation that her Employer discriminated against her based on its "perceiving" her to be disabled due to a mental illness or an addiction based on its making two inquiries concerning Plaintiff's behavior which Employer believed was unusual and, on one occasion, requiring her to undergo a drug test, the Appellate Division ruled that SDHR rationally concluded that those events alone did not establish that Plaintiff's Employer perceived her to be disabled due to an addiction or mental illness.

Significantly, the court noted that Plaintiff did not  allege that she suffered any adverse employment or personnel action resulting from those events or that she was subjected to "discriminatory intimidation, ridicule, and insult that [was] sufficiently severe or pervasive to alter the terms or conditions of employment."

Noting that "probable cause" for the purposes of New York State's Human Rights Law "exists only when, after giving full credence to the complainant's version of the events, there is some evidence of unlawful discrimination," the Appellate Division opined that there was no evidence before SDHR sufficient to support Plaintiff's contention that she had been subjected to acts of unlawful discrimination by her Employer.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_06282.htm

Claiming the protections of the Doctrine of Legislative Immunity in the course of litigation

The Doctrine of Legislative Immunity may be invoked by members of a legislative body being sued for alleged acts or omissions made in the course of their serving in their official capacity as a legislator.*

In this action certain members of a school board [Members] were subpoenaed to give depositions in the course of litigation initiated by the Plaintiffs in federal district court against the school district. The Members resisted, contending that they could not be forced to appear for such depositions because they were entitled to legislative immunity.

The United States District Court, Southern District of New York, affirming an order of the magistrate judge, rejected the Members' claim that they were entitled to legislative immunity that protects them against being called as witnesses at depositions regardless of whether they are parties in the action and directed the Members to appear for their depositions. The Members appealed the district court's ruling to the United States Court of Appeals, Second Circuit.

The Circuit Court rejected the arguments advanced by the Members that they entitled to legislative immunity explaining that "because the Board Members are not parties to this action and have not raised a colorable claim of official immunity," they are not within the ambit of the Doctrine.

Citing Mitchell v Forsyth, 472 U.S. 511, in which the Mitchell court described such “immunity from suit” as “entitlement not to stand trial or face the other burdens of litigation,” the Circuit Court said that the Members’ claim that their status as legislators shields them from serving as witnesses at depositions "sounds in evidentiary privilege,** and, as non-party witnesses seeking to challenge an order compelling them to appear for depositions, they have not presented a question of their entitlement to immunity."

Further, the Circuit Court opined that although the Members attempted to cloak  their claims under color of seeking the protection of legislative immunity, in fact the Members "in this case have sought to exercise an evidentiary privilege to avoid attending a deposition."

As the Members’ claims were founded on an evidentiary privilege, the Circuit Court concluded that it lacked jurisdiction over the appeal of the order compelling their attendance at the depositions as “[a]n order compelling testimony in an ordinary civil or criminal action is neither a final order ... nor an interlocutory order granting an injunction ... and it is not appealable.”

In contrast, the Circuit Court pointed out that to obtain such appellate review, the subpoenaed person ordinarily "must defy the district court’s enforcement order, be held in contempt, and then appeal the contempt order" which is regarded as a final order.

Indicating that this requirement applies whether the individual subpoenaed “is a party to the litigation or a non-party witness,” the Circuit Court granted the Plaintiffs' motion to dismiss the Members' appeal seeking to vacate the lower court's decision.

* The Doctrine of Legislative Immunity does not protect legislators from criminal prosecution, nor does it relieve them from responsibility for their actions unrelated to their office. See also https://publicpersonnellaw.blogspot.com/2018/02/sovereign-immunity-absolute-immunity_12.html addressing Sovereign Immunity, Absolute Immunity, Qualified Immunity, Use Immunity, Transaction Immunity and Qualified Privilege claims that may be advanced by public officers and employees involved in litigation and, or, administrative hearings.

** Privileged evidence refers to evidence that is exempt from production to an opposing party.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/378b60c7-cb2c-418e-890b-35a203574789/4/doc/18-3481_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/378b60c7-cb2c-418e-890b-35a203574789/4/hilite/

New York State Comptroller Thomas P. DiNapoli issues audits and examinations

New York State Comptroller Thomas Dinapoli issued the following audits and reports during the week ending September 6, 2019. Click on the text in color to access the complete audits and reports.

Department of Agriculture and Markets: Oversight of Weights and Measures Programs (Follow-Up) (2019-F-11)

An initial report, issued in December 2017, identified systemic issues with the quality of the data the department relies on to administer the state’s weights and measures program. In a follow-up, auditors found the department made significant progress addressing the problems identified in the initial audit. Of the four prior audit recommendations, two were implemented and two were partially implemented.

Department of Environmental Conservation (DEC): Oversight of Waste Tire Site Cleanup and Use of Waste Tire Fees (2018-S-43)

Auditors found DEC has made significant progress abating identified waste tire sites. Nearly 44 million tires (99 percent) were abated at 160 sites (86 percent) as of October 2018. Auditors also found about $5.1 million in expenses charged to the program that did not appear to be related to waste tire abatement or other waste management activities allowable under the law. 

Department of Environmental Conservation: Report of Title V Operating Permit Program Revenues, Expenditures, and Changes in Fund Balance for the Eight Fiscal Years Ended March 31, 2017 (2017-S-81)

Program revenues were insufficient to cover program expenses, as required by the federal Clean Air Act and New York’s Clean Air Compliance Act. Program revenues decreased 38.8 percent during the period, while program expenses decreased 10.8 percent, resulting in a trend of increasing annual deficits. 

Department of Health (DOH): Inappropriate Payments Related to Procedure Modifiers (Follow-Up) (2019-F-10)

An initial audit issued in April 2018 found that DOH incorrectly implemented claims processing system controls to prevent inappropriate payments for evaluation and management services, which resulted in Medicaid overpayments totaling about $2.6 million. In a follow-up, auditors found DOH made some progress in addressing the problems identified in the initial report, but no action has been taken to review and recover the inappropriate payments identified.

Department of Health (DOH): Medicaid Claims Processing Activity April 1, 2018 through Sept. 30, 2018 (2018-S-13)

Auditors identified over $134 million in Medicaid payments that require DOH’s prompt attention, including $123.9 million in Medicaid managed care premiums paid on behalf of 86,475 Medicaid recipients who had concurrent comprehensive third-party health insurance.

Metropolitan Transportation Authority (MTA): New York City Transit: Maintenance and Inspection of Event Recorder Units (2018-S-19) Auditors found train car inspections were not always done on time. They determined that, of the 822 timed inspections during the audit period, 70 were late, exceeding the permitted time or mileage interval. For 129 inspections, maintenance personnel did not provide evidence that they downloaded information from event recorder units to ensure that they were functioning correctly, as required by the MTA’s transit unit’s work manuals.

Office for People With Developmental Disabilities (OPWDD): Accountability and Surplussing of Vehicles (2018-S-42)

OPWDD lacks sufficient controls over fleet vehicle management at the four local Developmental Disabilties Services Offices (DDSOs) to ensure that all vehicles are properly accounted for, that vehicles are used for official state business only, and that DDSOs are properly surplussing vehicles following a process that is fair and complies with OGS requirements. Such deficiencies, which might largely be attributable to OPWDD’s lack of procedures and guidance, create an environment at risk of mismanagement and impropriety.

Rochester-Genesee Regional Transportation Authority (RGRTA): Compliance With Requirements to Maintain Systems at Vendor-Supported Levels (2019-S-6)

The authority must adhere to the State Information Security Policy which defines the minimum information security requirements that all state entities must follow to secure and protect the confidentiality, integrity, and availability of information. Auditors found that, generally, RGRTA maintained its systems at vendor-supported levels. However, they did identify unsupported systems used by RGRTA on 14 devices.

State Education Department (SED): Children’s Unit for Treatment and Evaluation: Compliance with the Reimbursable Cost Manual (2018-S-47)

For the three fiscal years ended June 30, 2016, auditors identified $232,606 in reported costs that did not comply with SED’s requirements for reimbursement. These costs included $232,464 in parent agency administrative costs and $142 in consultant travel expenses.

State Education Department (SED): Early Childhood Learning Center of Greene County: Compliance With the Reimbursable Cost Manual (2018-S-67)

For the fiscal year ended June 30, 2015, auditors identified $12,843 in reported non-personal service costs that did not comply with SED’s requirements for reimbursement.

The State Comptroller also provides the following information concerning how taxpayer money is spent at Open Book New York. Track municipal spending, the state's 160,000 contracts, billions in state payments and public authority data.

Visit the Reading Room for contract FOIL requests, bid protest decisions and commonly requested data.

Recent appointments to Governor Andrew M. Cuomo's administration

On September 4, 2019 the Governor announced these appointments to his administration:

Matthew Saal has been appointed Senior Advisor for Communications. Mr. Saal is a two-time Emmy Award-winning producer who has extensive experience producing television and digital programming. Previously, Mr. Saal worked for four years as Creator and Executive Producer at Bloomberg LP where he produced "The David Rubenstein Show: Peer to Peer Conversations," which featured behind the headlines interviews with top newsmakers including Warren Buffett and Bill Gates. Prior to that, he served for seven years as Creator and Executive Producer at MSNBC where he created and executive produced primetime live television shows including "The Rachel Maddow Show," "Politics Nation" and "Verdict with Dan Abrams." He has also served as Senior Broadcast Producer at NBC News on "Weekend Nightly News with Lester Holt." Mr. Saal earned a B.A. from Harvard College.

Colleen Curtis has been appointed Senior Director of Digital Strategy and Social Media. Ms. Curtis brings a wealth of media, communications and marketing experience in the media, government and entertainment industries. More recently, she served as Senior Vice President for Consumer, Social and Digital Publicity at Starz Entertainment and the Director of Digital Content at the Executive Office of the President under President Obama where she managed oversight and content for multiple online platforms. Ms. Curtis previously served as Editorial Director of Womens & Lifestyle Programming at AOL, where she launched 15 websites that reached more than 20 million Americans each month. In addition, Curtis has held numerous leadership roles in media in the United States and overseas, including senior editorial positions at ABC's Good Morning America, the New York Daily News, and the National Post. Ms. Curtis studied journalism at Boston University's College of Communications and Columbia University's Graduate School of Journalism.

Jeremy M. Goldberg has been appointed Deputy Secretary for Technology and Innovation for the State of New York. With over 15 years experience working across sectors, Jeremy has served in a technology leadership, strategy, and partnerships role in three mayoral offices: New York, San Francisco, and San Jose. Most recently, Jeremy served as Deputy CTO and Managing Director of NYCx in the New York City Mayor's Office of the Chief Technology Officer (MOCTO). He led the successful creation of an award-winning portfolio of initiatives that focuses on bold ideas and breakthroughs in the way we interact with and influence emerging technologies for the public good. During his time in San Francisco, he served as Director of Civic Innovation Partnerships in the Mayor's Office of Civic Innovation, where he led the growth of Startup-in-Residence, a 16-week program that connects government departments with startups to address critical needs via innovative products and services, and Civic Bridge, public private partnership program that enlists pro-bono private sector volunteers to work on critical city issues alongside city staff. Prior to that, he served as Deputy Chief of Staff for Civic Innovation in San Jose, California. A Fuse Corps Alumnus, Aspen Ideas Festival Scholar, and University of Texas Archer Fellow Alumnus, Jeremy earned a B.A. in Government from the University of Texas at Austin and an M.A. in Public Affairs from the University of San Francisco. He and his family live in Brooklyn, NY.

 
Edgar Santana has been appointed Director of Downstate Regional Affairs. Mr. Santana previously served as Director of Political and Governmental Affairs for the Laborers Eastern Region Organizing Fund. He previously worked as the Construction Marketing Representative for the Eastern Region Laborers-Employers Cooperation and Education Trust. Earlier in his career, Mr. Santana was the Deputy Executive Director for the New York State Democratic Committee and the Northeast Political Director for Hillary Clinton for President. Mr. Santana also formerly served as a Trustee for the Yonkers Board of Education and is Co-Chair of the Westchester County Census 2020 Complete Count Committee. He received a Bachelor's degree in Business Administration, an MBA from Fordham University, and a Master of Science Management Degree in Public Administration from Wilmington University, Wilson Graduate Center.

Brandon Hicks has been appointed Director of African American Affairs. Mr. Hicks brings nearly a decade of organizing and management experience for national civil rights and community organizations. Most recently, he served as the National Organizer for the National Action Network where he developed a national campaign to advance special prosecutor legislation and organized diverse campaigns surrounding police brutality, marijuana legalization and criminal justice reform. Mr. Hicks holds a Bachelor's degree in Political Science from North Carolina Central University and his Juris Doctor from Washington and Lee University School of Law.

 
Maria LoGiudice has been appointed Assistant Deputy Secretary for Public Safety. Ms. LoGiudice brings 20 years of experience in New York State government focusing on public safety and financial analysis. She previously served as the Managing Director of Budget and Fiscal Studies for the New York State Senate Finance Committee focusing on financial analysis surrounding public protection, including corrections, criminal justice services, homeland security and emergency services, State Police, victim services and local government issues. Ms. LoGiudice received a Bachelor's degree of Science and a Master's degree of Science in Criminal Justice Administration from Niagara University.

Molly Reilly has been appointed Assistant Secretary for Upstate Intergovernmental Affairs. Ms. Reilly most recently served as the Mayor of Sackets Harbor for two years. She also served as a professional educator, during which time Governor Cuomo selected her as an Empire State Excellence in Teaching Awardee. She received her Bachelor's degree in Political Science from Le Moyne College and a Master's degree in Political Science with a Concentration in Political Theory from the Nelson A. Rockefeller College of Public Affairs And Policy at SUNY Albany. 

Distinguishing between a "mandatory referendum" and an "advisory referendum" when seeking voter approval of a proposed local law

The Council of the City of Rochester (Council) adopted Local Law No. 4 of 2019  [Local Law] to amend the City Charter. The Local Law provided the holding of a referendum for the November 2019 general election that, if adopted, would:

1. Remove the Board of Education of the Rochester City School District [Board] Commissioners from a list of "Elective officers";

2. Remove the members of the Boards' term of office from City Charter; and

3. Discontinue providing for the "Salaries of School Board members."

The referendum further provided that the Local Law would take effect only after both approval by [a] an affirmative vote of "a majority of qualified electors" voting on the referendum and [b] the enactment of appropriate enabling amendments to the Education Law.

The Board initiated a CPLR Article 78 proceeding and declaratory judgment action seeking a declaration that the Local Law was invalid and that the referendum would be void as constituting an "advisory referendum." The Board also asked the court to issue a permanent injunction barring the City from placing the referendum on the November ballot.

Supreme Court granted the relief sought by the Board, holding that the State "unequivocally occupies the entire field of public education, thus preempting the Local Law and rendering the referendum impermissibly advisory." Declaring that the Local Law was a "void advisory referendum," the court issued a permanent injunction barring the advisory referendum from being included on the ballot for the November general election.

The City appealed the Supreme Court's ruling but the Appellate Division affirmed the lower court's decision. Citing Mills v Sweeney, 219 NY 213, decided in 1916, the Appellate Division explained that any local law that "[a]bolishes an elective office" or "reduces the salary of an elective officer during his [or her] term of office" is subject to the approval of a mandatory referendum.*

In contrast, said the court, an "advisory referendum," that is a referendum that lacks legal effect or consequence, is not permitted in the absence of express constitutional or statutory authority providing for such a referendum.

As the Local Law conditioned its effectiveness on subsequent action by the New York State Legislature, the Appellate Division said that this stipulation "strips the referendum of any binding legal effect" and thus is "impermissibly advisory."

In addition, the Appellate Division observed that Supreme Court "correctly noted" that a local government may not legislate in areas "where the State has evidenced its intent to occupy the field" and it is well established that the State has preempted local action in the field of public education.** 

The Appellate Division then unanimously affirmed the Supreme Court's judgment, without costs.

* See Municipal Home Rule Law §23[2][e].

** See New York State Constitution Articles IX §3[a][1] and Article XI, §1; Education Law.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_06449.htm

Recent Decisions issued by Administrative Law Judges of the New York City Office of Administrative Trials and Hearings

Below are summaries of recent OATH Administrative Law Judge's decisions.  To ascertain whether the ALJs' recommendations were adopted by the appointing authority please call OATH's calendar unit at 1-844-628-4692.

Worker alleged to be under the influence of drugs while on duty

OATH Index No. 1530/19

A worker, who was found unconscious at work, was charged with possessing and being under the influence of drugs while on duty and being absent without leave. Administrative Law Judge Ingrid M. Addison sustained the charges that the employee was under the influence of drugs while on duty but dismissed the absence charge.

Termination of the worker’s employment was recommended by the appointing authority, but because the employee’s problems appeared to have started following a line of duty injury, Judge Addison suggested that the appointing authority consider placing the individual on a leave of absence to allow him to return when fully rehabilitated.

The appointing authority adopted Judge Addison's findings and recommendation.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-1530.pdf

Special officer alleged to have used excessive force against a client

OATH Index No. 2742/18

A special officer [SO] was charged with using excessive force against a client at a New York City job center. The charges filed against the officer alleged that he kicked the client hard in the face and pulled the client’s arm when the client was already held in a prone position on the floor by several other officers. SO denied the charges filed against him.

In the course of a four-day trial, the appointing authority offered seven witnesses and SO offered three. ALJ Noel R. Garcia credited the appointing authority’s witnesses, found that SO guilty of serious misconduct, and recommended termination of his employment. 

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-2742.pdf

Employee charge with targeting a co-worker with inappropriate, aggressive and threatening language 

OATH Index No. 1863/19

An employee was charged with twice accosting a fellow employee and addressing  inappropriate, aggressive and threatening language to the co-worker.

During trial the appointing authority presented the testimony of four employees. Testifying on her own behalf, the charged employee denied having used any inappropriate or aggressive language.

ALJ Addison found the appointing authority’s witnesses credible and sustained the charges. Considering the charged employee’s long service with the agency,  Judge Addison recommended a penalty of 40 days’ suspension without pay, "with credit for time served."

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-1863.pdf

Motion seeking the recusal of the Supreme Court Justice presiding over a CPLR Article 75 action

Petitioner [Employer] commenced this proceeding in Supreme Court pursuant to CPLR Article 75 to vacate an arbitration award that concluded that Employer had improperly terminated the employment of member of the negotiating unit represented by the employee organization [Union]. 

Supreme Court granted the Employer's petition and vacated the arbitration award. The Union and the terminated employee  then asked [1] the Supreme Court Justice who had presided over this Article 75 action to recuse herself; and [2] an order to vacate the order and judgment earlier issued by her. The Justice denied the motion. 

Mandatory disqualification of a Supreme Court Justice pursuant to Judiciary Law §14 is required where the trial judge presiding over any claim is "related by consanguinity or affinity to any party to the controversy within the sixth degree."* 

The Appellate Division explained that the record did not show that any person related to the challenged Supreme Court Justice was a party to Article 75 proceeding and thus mandatory disqualification pursuant to Judiciary Law §14 was not required

Turning to the Code of Judicial Conduct Canon, 3(E)(1)(d)(i), which concerns a judge recusing himself or herself as a matter of the exercise of his or her discretion, the Appellate Division said that this provision addresses a judge decision to decline "self-disqualification" or reject a motion to do so.

As to the question of discretionary recusal, the Appellate Division again agreed with the Supreme Court Justice's denial of the motion seeking her recusal based on alleged impropriety or bias. The Appellate Division's decision notes that in the absence of a legal disqualification under Judiciary Law §14, "the determination concerning a motion seeking recusal based on alleged impropriety, bias, or prejudice is within the discretion and the personal conscience of the court." 

Such recusal, opined the Appellate Division, as a matter of due process, "is required only where there exists a direct, personal, substantial or pecuniary interest in reaching a particular conclusion, or where a clash in judicial roles is seen to exist." 

Accordingly, said the court, the denial of a recusal motion will constitute an improvident exercise of discretion only where the moving party puts forth demonstrable proof of the judge's bias or prejudgment and here there was no evidence in the record demonstrating that  the Supreme Court Justice had any improper interest in the outcome of the Article 75 proceeding or harbored actual bias against the Union or its member so as to warrant the conclusion that her denial of their recusal request was an improvident exercise of discretion.

* "First cousins twice removed" constitute the sixth degree of consanguinity.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_06391.htm

[See, also, http://www.nycourts.gov/reporter/3dseries/2019/2019_06402.htm]

Suing for alleged defamation following the publication of an article concerning "official governmental activities"

New York's Civil Rights Law §74 shields publishers from civil liability for claims of defamation when the alleged defamatory statements are accurate reports about official government events and activities.*

Supreme Court denied Petitioner's motion to strike the Respondent's Civil Rights Law §74 defense** to allegations of defamation, holding that "Civil Rights Law §74 ... confers an absolute privilege on a fair and true report of any official proceeding."

Supreme Court also noted that "a newspaper article which relies upon the findings of an official proceeding [does not] lose the protection of the statute merely because its publication precedes release of the official findings. 

Indeed, observed the court, even the announcement of an investigation by a public agency, made before the formal investigation has begun, is protected as a report of an official proceeding within the contemplation of §74, as is a report of an ongoing investigation, as long as it is accurate"

In addressing Petioner's appeal challenging the Supreme Court's ruling concerning Respondent's §74 defense, the Appellate Division identified as covered by the rubric "official government activities" was an article that "hyperlinked a CNN article and the embedded dossier compiled by Christopher Steele, which included a confidential report containing the alleged defamatory statements" about Plaintiffs.

The Appellate Division, sustaining the Supreme Court's ruling, opined that the Plaintiffs "would have concluded that there were official proceedings, such as classified briefings and/or an FBI investigation concerning the dossier as a whole, including the confidential report relating to plaintiffs."

* Civil Rights Law§ 74 provides that "A civil action cannot be maintained against any person, firm or corporation for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding." The same is true with respect to "any heading of the report which is a fair and true headnote of the statement published."

** The Supreme Court's ruling is posted on the Internet at: http://www.nycourts.gov/reporter/pdfs/2018/2018_30834.pdf

The Appellate Division's decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03473.htm

The tests applied by courts in New York State to determine if a grievance alleging a violation of a provision in a public sector collective bargaining agreement is arbitrable

In Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132, the Court of Appeals has recognized a two-step process for a court to determine when a particular public sector grievance is subject to arbitration. The court must first determine if there is any statutory, constitutional or public policy prohibition against arbitration of the grievance at issue. If there is no such bar, the court must then examine the collective bargaining agreement to determine if the parties have agreed to arbitrate the dispute at issue.

In this CPLR Article 75 action the petitioner [Employer] sought a permanent stay of arbitration of a labor organization's [Union] demand that an adverse contract grievance decision be submitted to arbitration. Supreme Court rejected the Employer's attempt to stay arbitration of the matter and, on appeal, the Appellate Division sustained the lower court's ruling.

The Appellate Division, noting that the Employer did not claim that was a statutory, constitutional or public policy impediment to submitting the matter to arbitration, said its review of the Employer's appeal was focused on whether the parties had agreed to arbitrate the dispute at issue.

The relevant clause in the controlling collective bargaining agreement [CBA] provided that "i]n the event the grievance is not resolved after the final step in the grievance procedure [set out in the CBA], [either party] may submit [the matter] to arbitration in accordance with the procedure [set out in the CBA] within ten (10) days of the close of the Stage Three review." A grievance was defined as "any claimed violation, misinterpretation, or inequitable application of the terms and conditions" set out in the CBA.

This broad arbitration clauses, opined the Appellate Division, includes matters where a reasonable relationship between the CBA and the matter to be arbitrated exists. As the CBA includes terms and conditions of employment, including a provision that office hours for the grieving employees  involved "shall be from 8:00 a.m. to 5:00 p.m. Monday through Friday," the court found that "a reasonable relationship exists between the subject matter of the grievances and the general subject matter of the CBA, and [thus] the matter is arbitrable."

The court rejected the Employer's argument that "there is no valid agreement to arbitrate because the grievants' claims pertain to a 1995 Memorandum of Agreement (MOA) between the parties and not the CBA."

However, said the court, "the [employees being represented by the Union] have alleged a violation of the CBA and not the separate MOA" and whether there is merit to the Employer's contention that there is no violation of the CBA because the MOA remains enforceable and permits the 11:15 a.m. to 7:15 p.m. shift is an issue for the arbitrator to resolve.*

Addressing the Employer's claim that the demand for arbitration was untimely, the Appellate Division ruled that the Employer had failed to meet its "initial burden of demonstrating, prima facie, that the time within which to commence the cause of action has expired."

Accordingly, the Appellate Division unanimously affirmed the Supreme Court's ruling without costs.

* In addition, the court pointed out that the CBA does not contain an express provision requiring strict compliance with the contractual grievance procedures as a condition precedent to arbitration but, instead, provides that the arbitrator will consider whether grievance "procedures have not been followed" in determining whether to deny the grievance.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_06298.htm