Providing a negative employment reference to a prospective employer in retaliation for engaging in a protected activity held to be in violation of New York State's Human Rights Law

In this action the Appellate Division observed that New York State Human Rights Law provides that it is unlawful to retaliate against an employee opposing discriminatory practices.* To establish an unlawful retaliation claim, said the court, an employee [Complainant] must show that "(1) Complainant had engaged in protected activity, (2) Complainant's employer was aware that Complainant participated in such activity, (3) Complainant suffered an adverse employment action because of Complainant's protected activity, and (4) there is a causal connection between the protected activity and the adverse action." Once this initial burden has been met, "the burden then shifts to [the employer] to present legitimate, independent and nondiscriminatory reasons to support [its] actions."

The New York State Division of Human Rights [NYSDHR] found that the employer had unlawfully discriminated against the Complainant by providing a negative employment reference to a prospective employer in retaliation for Complainant's engagement in a protected activity in violation of Executive Law §296, awarding the Complainant "compensatory damages in the principal sum of $5,000 for mental anguish, plus interest at the rate of nine percent per year from June 29, 2017, and assessing a civil fine and penalty against the [Employer] in the principal sum of $10,000, plus interest at the rate of nine percent per year from June 29, 2017." Employer appealed the NYSDHR's decision.

The Appellate Division confirmed NYSDHR's ruling and denied Employer's petition and dismissed the appeal on the merits. The court explained that "The scope of judicial review under the Human Rights Law is extremely narrow and is confined to the consideration of whether the determination of the SDHR is supported by substantial evidence** in the record," citing Matter of New York State Div. of Human Rights v Roadtec, Inc., 167 AD3d 898. Further, opined the court, "Under a substantial evidence review, courts may not weigh the evidence or reject [the Commissioner's] choice where the evidence is conflicting and room for a choice exists" citing Matter of CUNY-Hostos Community Coll. v State Human Rights Appeal Bd., 59 NY2d 69.*** 

Finding that Complainant had made a prima faciecase of unlawful discrimination within the meaning of the State's Human Rights Law, the Appellate Division ruled that "the burden [of going forward] shifted to the Employer to present evidence of a legitimate, independent, and nondiscriminatory reason to support [its agent's] action, and the [employer] failed to do so."

Accordingly, the Appellate Division confirm NYSDHR's determination, finding that the award of compensatory damages for mental anguish was reasonably related to the wrongdoing, supported by substantial evidence, and comparable to other awards for similar injuries. Noting that "A court may set aside an administrative penalty only if it is so disproportionate to the offense as to be shocking to one's sense of fairness," the Appellate Division said it "perceive no basis for disturbing the civil fine and penalty assessed against the [Employer]." 

* Executive Law §296[1][e]; [7]. 

** "Substantial evidence means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" [See 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176]. 

*** This case was decided with another case involving the same parties and is posted at http://www.nycourts.gov/reporter/3dseries/2020/2020_04302.htm.

The decision in this appeal is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2020/2020_04303.htm 

Determining the fitness of candidates for appointment to positions in the public service

An appointing authority has wide discretion in determining the fitness of candidates, and this discretion is particularly broad in the hiring of law enforcement officers, to whom high standards may be applied.* As long as the administrative determination is not irrational or arbitrary and capricious, courts typically will not disturb it. ** 

Plaintiff commenced this proceeding pursuant to CPLR Article 78 seeking judicial review of a Civil Service Commission's decision disqualifying him for a position as a police officer. Supreme Court denied Plaintiff's petition and dismissed the proceeding and Plaintiff appealed the court's ruling to the Appellate Division.

Addressing Plaintiff's complaint that the Commission had wrongfully denied his request for disclosure of information pertaining to his disqualification, the Appellate Division opined that the Commission's denial of Plaintiff's request was proper, citing Grossman v McMahon, 261 AD2d 54. In his appeal Grossman had contended that his request certain the background information should have been approved. The Grossman court disagreed, explaining that in a proceeding "of this nature, where disclosure is available only by leave of court pursuant to CPLR 408," Supreme Court has broad discretion in granting or denying disclosure "... although it must balance the needs of the party seeking discovery against such opposing interests as expedition and confidentiality."*** 

In the instant case the Appellate Division held that the Commission's determination disqualifying the Plaintiff from eligibility for appointment to the position of police officer was neither irrational nor arbitrary and capricious.

Addressing another argument raised by Plaintiff, the Appellate Division said that the Commission's disqualification determination violated neither §296[15] of the Human Rights Law nor §§750[5] or 752 of the Correction Law, citing Little v County of Westchester, 36 AD3d at 617.

Accordingly, the Appellate Division said it agreed with the Supreme Court's determination to deny the Plaintiff's petition and dismissal of the proceeding. 

* See Matter of Rogan v Nassau County Civ. Serv. Commn., 91 AD3d 658. 

** Matter of Verme v Suffolk County Dept. of Civ. Serv., 5 AD3d 498 

*** In Grossman the Appellate Division concluded that "Supreme Court did not abused its considerable discretion in denying disclosure of the background investigation file" Grossman had sought.

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2020/2020_04304.htm

AELE announces its online Educational Center

The Americans for Effective Law Enforcement (AELE) has announced the availability of its "Online Educational Center (OEC)." 

Through its OEC, the AELE said it will expand its dedication to providing objective, timely, accurate, legal, scientific, and evidence-based information and operational guidance for the enhancement of the criminal justice community and to reduce potential criminal and civil liability of criminal justice professionals and municipalities. 

This is the location for registering for future AELE webinars, virtual seminars, and virtual and ON-DEMAND programs. 

Educational programs will be added as they are completed. AELE invites checking the site a regular part of your organization's week's activities. 

Check out the AELEOEC at www.aeleoec.org

Clear and convincing evidence held to support a challenged administrative decision

The driver [Plaintiff] of a New York City Transit Authority bus was issued a summons for alleging seriously injuring a  pedestrian walking in a marked crosswalk with the right of way as the result of Plaintiff's failing to exercise due care. A New York State Department of Motor Vehicles [DMV] Administrative Law Judge [ALJ] found clear and convincing evidence was presented in support of the allegation and the DMV's Traffic Violations Bureau Appeal Board affirmed the ALJ's ruling and the penalty imposed: suspension of Plaintiff's driver's license for six months.

Plaintiff initiated a CPLR Article 78 proceeding challenging the DMV's determination. A divided Appellate Division granted Plaintiff's petition, annulled and vacated DMV's determination, and reinstated Plaintiff 's driver's license.* DMV appealed and the Court of Appeals reversed the Appellate Division's decision.

The Court said that the evidence at the administrative hearing included [1] an investigative report from the accident-reconstruction specialist who investigated the incident, [2] a report from a police officer who responded to the scene, and [3] a statement provided by the Plaintiff after the accident.

Noting that the accident-reconstruction specialist testified at the hearing, reiterating his report's conclusion concerning the victim's injuries, the Court of Appeals opined that DMV's determination was supported by substantial evidence in the record  that Plaintiff had caused serious physical injury to a pedestrian as the result of Plaintiff's failing to exercise due care in operating the bus in violation of §1146(c) of New York State's Vehicle and Traffic Law.

The judgment of the Appellate Division was reversed, with costs, Plaintiff's petition denied, and the determination of the New York State Department of Motor Vehicles reinstated.

* See 159 AD3d 607.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_03564.htm

Processing Freedom of Information Law requests for disciplinary records of law enforcement personnel involving "unsubstantiated and unfounded complaints against an officer"

The New York State Committee on Open Government issued an advisory opinion, FOIL AO 19775, in response to an inquiry concerning a public employer's obligation with respect to responding to requests for disciplinary records of law enforcement personnel involving "unsubstantiated and unfounded complaints against an officer, or if the employer is obligated to disclose all complaints against an employee regardless of outcome."

FOIL AO 19775 concludes that "based on [the Committee's] prior analyses of the disclosure requirements relating to disciplinary records of government employees generally, when allegations or charges of misconduct have not yet been determined or did not result in disciplinary action, the records relating to such allegations may in [the Committee's] view be withheld where the agency determines that disclosure would result in an unwarranted invasion of personal privacy. In addition, to the extent that charges are dismissed, or allegations are found to be without merit, [the Committee] believe that those records also may be withheld based on considerations of privacy." 

The full text of FOIL AO 19775 is set out below. 

FOIL AO 19775

By electronic mail only

July 27, 2020

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence, except as otherwise indicated. 

Dear: 

I am writing in response to your request for an advisory opinion regarding the obligations of the City of Syracuse (the "City") under the Freedom of Information Law (FOIL) in connection with requests for law enforcement disciplinary records, specifically relating to unsubstantiated and unfounded complaints against a police officer. In your inquiry, you note that Public Officers Law §86(6)(a) defines “law enforcement disciplinary records” to include “complaints, allegations, and charges against an employee.” 

You ask whether “an employer of a law enforcement employee could lawfully withhold unsubstantiated and unfounded complaints against an officer, or if the employer is obligated to disclose all complaints against an employee regardless of outcome.” I note that yours is the first, but not the only, inquiry we have received in recent weeks asking this question.

As you know, until very recently, personnel records of police officers, corrections officers, and paid firefighters that were used to evaluate performance toward continued employment were specifically exempted from disclosure by state statute: Civil Rights Law §50-a and, because of this, Public Officers Law § 87(2)(a). On June 12, 2020, however, Governor Andrew M. Cuomo signed into law Chapter 96 of the Laws of 2020 repealing Civil Rights Law §50-a and amending FOIL to add certain provisions relating to law enforcement disciplinary records. Where prior to June 12, 2020, access to personnel records of a police officer was governed by §50-a and the resulting FOIL exemption pursuant to §87(a)(2), ending the FOIL analysis immediately, access is now governed by FOIL alone.

As a general matter, FOIL is based upon a presumption of access. All records of an agency are available except to the extent that records or portions thereof fall within one or more grounds for exemption appearing in §87(2)(a) through (q) of the Law. Section 87(2)(b) of FOIL, a provision which until June 12, 2020, had not been applied to law enforcement disciplinary records because of Civil Rights Law §50-a, permits an agency to withhold records or portions of records which “if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article . . . .” As you note in your inquiry, the Committee on Open Government has frequently addressed issues relating to rights of access to disciplinary records of public employees pursuant to this subsection of the FOIL. 

In FOIL Advisory Opinion 17195, staff of the Committee opined that a record of an unsubstantiated or unfounded complaint may be withheld under FOIL where the agency determines such complaint would constitute an unwarranted invasion of personal privacy: 

The exception of significance is §87(2)(b), which authorizes an agency to withhold records insofar as disclosure would constitute “an unwarranted invasion of personal privacy.” Although the standard concerning privacy is flexible and may be subject to conflicting interpretations, the courts have provided substantial direction regarding the privacy of public employees. It is clear that public employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that they are required to be more accountable than others. The courts have found that, as a general rule, records that are relevant to the performance of one’s official duties are available, for disclosure in such instances would result in a permissible rather than an unwarranted invasion of personal privacy . . . . Conversely, to the extent that records are irrelevant to the performance of one’s official duties, it has been found that disclosure would indeed constitute an unwarranted invasion of personal privacy . . . . [W]hen allegations or charges of misconduct have not yet been determined or did not result in disciplinary action, the records relating to such allegations may, in my view, be withheld, for disclosure would result in an unwarranted invasion of personal privacy [see e.g., Herald Company v. School District of City of Syracuse, 430 NYS 2d 460 (1980)]. Further, to the extent that charges are dismissed or allegations are found to be without merit, I believe that they may be withheld based on considerations of privacy.

Committee staff have issued similar opinions in FOIL AO 19771, FOIL AO 16764, FOIL AO 12802, FOIL AO 12722, FOIL AO 11747, FOIL AO 9463 , and FOIL AO 7602. In sum, Committee staff have long advised that where an agency determines that a record of an unsubstantiated or unfounded complaint would, if disclosed (even in a redacted form (see, e.g., FOIL AO 19771)), constitute an unwarranted invasion of personal privacy, such record need not be disclosed. 

The new provisions of FOIL did not make changes to provisions concerning personal privacy as defined in §87(2)(b). Based on our long-standing interpretation that requires an agency to determine if an unsubstantiated or unfounded complaint against an employee would, if disclosed, constitute an unwarranted invasion of personal privacy, and absent language expressing that the legislature intended that law enforcement disciplinary records should enjoy less protection than the disciplinary records of other government employees, we do not impute such an intent. Moreover, while no court has yet issued an opinion formally answering the question whether unsubstantiated complaints against law enforcement personnel must be disclosed pursuant to FOIL, at least two have recently temporarily enjoined the disclosure of such complaints pending a final determination. [1]
 
In further support of this interpretation, there is a suggestion in the new FOIL provisions that some law enforcement disciplinary records, which the legislature calls “technical infractions” (FOIL §89(2-c)), enjoy greater(rather than less) protection than such infractions contained in the disciplinary records of other government employees. In other words, while there is some express language in the statute to render certain records of law enforcement agency employees less available than those of other government employees, there is nothing in the statute to suggest that the legislature intended that any of the records of law enforcement agency employees be more available than the records of other government employees. 

Accordingly, it is our opinion, in the absence of judicial precedent or legislative direction, that the law does not require a law enforcement agency to disclose “unsubstantiated and unfounded complaints against an officer” where such agency determines that disclosure of the complaint would constitute an unwarranted invasion of personal privacy, but also does not require an agency to withhold such a record. Rather, as with all of the FOIL exemptions except §87(2)(a), which no longer applies to this situation since the repeal of §50-a, an agency may, but not must, withhold as exempt a record meeting the criteria for such exemption. In light of the repeal of §50-a, a request for disciplinary records relating to a police officer must be reviewed in the same manner as a request for disciplinary records of any other public employee. As such, based on our prior analyses of the disclosure requirements relating to disciplinary records of government employees generally, when allegations or charges of misconduct have not yet been determined or did not result in disciplinary action, the records relating to such allegations may in our view be withheld where the agency determines that disclosure would result in an unwarranted invasion of personal privacy. In addition, to the extent that charges are dismissed, or allegations are found to be without merit, we believe that those records also may be withheld based on considerations of privacy. 

Thank you for your inquiry.

Very truly yours,

/s/ Shoshanah Bewlay

Shoshanah Bewlay
Executive Director

SVB/ko

FOIL-AO-f19775
19775

---

[1] See https://gothamist.com/news/federal-judge-blocks-release-nypd-misconduct-records-orders-nyclu-keep-records-secret(U.S. District Court for the Southern District of New York) and https://buffalonews.com/news/local/crime-and-courts/city-of-buffalo-blockedfrom-releasing-portions-of-police-disciplinary-records/article_2acfc25c-cde6-11ea-8d7f-3b130bc09a73.html(New York State Supreme Court).

Court holds a video of the event, together with the testimony given at his disciplinary hearing, was substantial evidence that the Petitioner was guilty of misconduct

A former New York City police officer [Petitioner] appealed his dismissal from his position with the New York City Police Department [Department] after a disciplinary hearing in which the hearing officer found that Petitioner wrongfully took money in the course of a police operation, concealed his actions from his fellow officers, and then twice made false statements in the course of an investigation into the incident.

The Appellate Division unanimously confirmed the Department's decision and dismissed Plaintiff's petition. The court noted that the Department's determination that Petitioner was guilty of misconduct was supported by substantial evidence as, in addition to video evidence of the incident, Petitioner's own testimony established that he took money and pocketed it during the course of a police operation and then failed to give the money to the arresting officer at the scene.

As the arresting officer had testified that Petitioner never subsequently gave the money in question to him, the Appellate Division said that the Department  "rationally concluded that [Petitioner's] actions as depicted on video, including turning away from the other officers while he pocketed the money, were inconsistent with [Petitioner's  claim he was attempting] merely to safeguard the money."

In addition, the court opined that the Department also rationally concluded that Petitioner's other explanations for his actions were not credible.

Addressing Petitioner's contention that the Department was bias against him, the Appellate Division explained that this argument was unavailing "in the absence of any proof that the outcome of the proceeding flowed from the alleged bias."

The court concluded that, under the circumstances, the dismissal of Petitioner from his employment with the Department did not shock its judicial conscience, citing Matter of Kelly v Safir, 96 NY2d 32, among other decisions.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_03472.htm

Filing a claim for workers' compensation benefits death benefits in cases where the cause of death was suicide

An employee [Decedent] sustained a work-related injury to his head and his claim for workers' compensation benefits was thereafter established. Subsequently his family feared that Decedent had attempted suicide and had him hospitalized. Discharged from the hospital, Decedent died by suicide five days later.

Decedent's surviving spouse [Petitioner] filed a claim for workers' compensation death benefits. After conducting a hearing, a Workers' Compensation Law Judge [WCLJ] granted the claim. The Workers' Compensation Board [Board] affirmed the WCLJ's findings and determination. The Appointing Authority, and its third-party administrator [hereinafter collectively [Employer] appealed the Board's decision.

Initially addressing a procedural issue, the Appellate Division rejected the Employer's contention that the Board violated Workers' Compensation Law §23 when it adopted the findings of the WCLJ without a statement setting forth the facts upon which it had relied*.

Turning to the merits of Employer's appeal, the court, citing Matter of Delacruz v Incorporated Vil. of Freeport, 175 AD3d 1739, noted that "[i]t is well settled that workers' compensation death benefits may not be awarded 'when the injury has been solely occasioned ... by wil[l]ful intention of the injured employee to bring about the injury or death of himself [or herself].'" Further, opined the Appellate Division, "[W]orkers' compensation death benefits may be awarded for a suicide only where the suicide results from insanity, brain derangement or a pattern of mental deterioration caused by work-related injury."

In Workers' Compensation claims cases involving a suicide the Appellate Division said that the rule is that "the causal relationship between an industrial accident and a resulting mental condition need not be direct and immediate. It is sufficient that the industrial accident is a contributing cause, even if it precipitated [the] decedent's preexisting mental condition."

Finding that the Board's determination that Decedent's suicide was causally related to his work injury was supported by substantial evidence, the Appellate Division said it would not disturb the Board's determination.

* §23 of the Workers' Compensation Law provides that Board decisions shall include "a statement of the facts which formed the basis of its action on the issues raised."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_04222.htm

Appeal to the Commissioner of Education dismissed where Petitioner initiated litigation raising substantially similar claims and seeks substantially similar relief

Interim Commissioner of Education Shannon Tahoe* dismissed Petitioner's appeal challenging the  Board of Education's appointing a new Superintendent founded on allegations that the Board violated certain of its own policies in appointing the Superintendent. Without addressing the merits of Petitioner's appeal, the Commissioner dismissed the appeal "given the pendency of a related civil action."

Commissioner Tahoe explained that Petitioner commenced an action in Supreme Court, Westchester County raising substantially similar claims, and seeking substantially similar relief, as in the instant appeal.** In the civil action, Petitioner asked the court, among other things, to [1] vacated the Board's appointment of a new superintendent and [2] compel the Board to follow its own policies and procedures in the appointment of a new superintendent.

Citing Appeal of Moriarty, 57 Ed Dept Rep, Decision No. 17,265, among other decisions of the Commissioner of Education, Commissioner Tahoe said "Under these circumstances, it would be contrary to the orderly administration of justice for the Commissioner to decide claims that [P]etitioner has elected to raise in Supreme Court, particularly where she seeks the same relief that she seeks in this proceeding," and dismissed Petitioner's appeal.

* Commissioner Tahoe has submitted her resignation as interim Commissioner, to take effect August 13, 2020, to the Board of Regents.

** See Minaya v. City School District of New Rochelle., et. al., Index. No. 67873/2019, filed Oct. 26, 2019.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume60/d17879

Nonfeasance by a public official

A decision by New York State’s highest court sustained the conviction of a police officer who had taken part in a plot to prevent the arrest of a teenager accused of burglary and whose father had personal connections to the officer's Police Department.

The Court of Appeals said that it is not “discretionary” for government officials to abdicate their responsibility to pursue wrongdoing if that decision is being made to benefit someone personally.

The court explained that “... a public servant’s knowing refusal to perform a mandatory action coupled with an intent to obtain a benefit constitutes nonfeasance,” in upholding the police official’s conviction. In the words of the court, “... when a public servant, with the intent to obtain a benefit, knowingly refuses to perform a discretionary duty, the performance of which is so obviously fundamental to accomplishing the goals of the public servant’s office, that refusal cannot legitimately be understood to be an exercise of discretion; rather, it constitutes an abuse of discretion, which equates to nonfeasance.”

Other such transgressions include misfeasance in office, acting unlawfully, and malfeasance in office, performing official acts badly.

The decision is posted on the Internet at: 
https://www.leagle.com/decision/innyco20170209276

The anatomy of an application for accidental disability retirement benefits

The genesis of this case was the determination by the Medical Board of the New York City Fire Department Pension Fund [Medical Board] that although the applicant [Plaintiff] for accidental disability retirement benefits [ADR] was disabled, his disabling condition was not the result of a work-related injury. The Medical Board's decision was adopted by the Board of Trustees of the New York City Fire Department Pension Fund [Board of Trustees] adopted the recommendation of the Medical Board and denied the petitioner's application for ADR in a tie vote.

Plaintiff commenced a CPLR Article 78 proceeding to review the determination of the Board of Trustees. Supreme Court denied Plaintiff's petition and dismissed the proceeding, finding that the determination was supported by credible medical evidence and thus was not arbitrary and capricious. Plaintiff appealed the Supreme Court's ruling.

The Appellate Division said agreed with the Supreme Court's determination rejecting Plaintiff's petition and dismissing the proceeding, explaining that in Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, the Court of Appeals, indicating that a New York City firefighter is entitled to ADR benefits after a medical examination and investigation shows that the firefighter is physically or mentally incapacitated for the performance of city-service "as a natural and proximate result of an accidental injury received in such city-service."

The Appellate Division then described the procedure following in evaluating an application for ADR as involving a two-step process:

1. A medical examination of the applicant for ADR followed by a three-physician member pension fund Medical Board, "charged with passing upon all such required medical examinations and investigating all essential information in connection with a disability retirement application"; and

2. If the Medical Board concludes that the firefighter is disabled, it must then determine whether the disability is "a natural and proximate result of an accidental injury received in such city-service" and certify its recommendation on this issue to the Board of Trustees, which is ultimately responsible for retiring the city service member and determining the issue of service-related causation.

The court opined that the Board of Trustees is entitled to rely on the advisory opinion of the Medical Board regarding causation. However, the burden of establishing that a disability is causally related to a line-of-duty accident rests with the applicant for ADR benefits in the event the firefighter ADR benefits are denied.

In the event a vote by a Board of Trustees to retire a city service member under ADR results in a tie, the Board of Trustees is required to retire the member under Ordinary Disability Retirement [ODR] with ODR benefits. Significantly, in the event the firefighter challenges being placed on ODR by initiating a CPLR Article 78 proceeding, the reviewing court may not set aside the Board of Trustees' denial of accidental disability retirement resulting from such a tie vote unless the court determines that "as a matter of law on the record that the disability was the natural and proximate result of a service-related accident."

Under this standard, said the Appellate Division, "as long as there was any credible evidence of lack of causation before the Board of Trustees, its determination must stand."* Further, as the Appellate Division noted in Matter of Santoro v Board of Trustees of N.Y. City Fire Dept. Art.1-B Pension Fund, 217 AD2d 660, courts "cannot weigh the medical evidence or substitute their own judgment for that of the Medical Board."

The court said that the Medical Board's determination that the Plaintiff's disability was causally related to chronic degenerative joint disease was supported by credible evidence consisting of the operative report and other relevant medical records including an MRI report." The decision also notes that "the Medical Board provided an 'articulated, rational, and fact-based medical opinion' for how it came to its conclusion."

Although the Medical Board's findings differ from those of Plaintiff's surgeon, who found that it was likely that Plaintiff's condition "was causally related to work injuries and that [Plaintiff] may have exacerbated a pre-existing condition," the Appellate Division observed that "[w]here conflicting medical evidence and medical reports are presented to the Medical Board, it is solely within the province of the Medical Board to resolve such conflicts."

Further, opined the Appellate Division, "It was not arbitrary or capricious for the Board of Trustees to find that [Plaintiff] did not establish that his disability was the natural and proximate result of his line-of-duty accident" and the Board of Trustees was entitled to rely on the Medical Board's recommendation in voting to deny ADR benefits to the petitioner, and found that "there is no basis herein to disturb the Board of Trustees' determination."

* Credible evidence is evidence that proceeds from a credible source and reasonably tends to support the proposition for which it is offered and not merely a conclusion of law, nor mere conjecture or unsupported suspicion.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_03910.htm

Audits released by the New York State Comptroller

The audits listed below were released by New York State Comptroller Thomas P. DiNapoli during the week ending July 24, 2020.

Click on the text highlighted in color to access the full report.

School Districts:

Liverpool Central School District – Information Technology (IT) Assets (Onondaga County) District officials did not maintain complete and accurate hardware or software inventory records and did not perform comprehensive inventory counts. Auditors’ review of 529 purchased items, totaling about $448,000, found that 123 items, totaling $76,425, were not recorded in the district’s inventory records. Officials could not locate three of the 48 IT items auditors tested: a laptop and two cameras, totaling $1,444. In addition, the last comprehensive physical inventory count was conducted in 2003.

Putnam Central School District – Fund Balance Management (Washington County) The district’s surplus fund balance exceeded the statutory limit by 32.7 to 42.8 percentage points at the end of the last three fiscal years. Auditors determined appropriations were consistently overestimated resulting in increasing fund balance levels. The district did not use all of the fund balance appropriated to finance operations for fiscal years 2016-17 through 2018-19. The board has not adopted an adequate multiyear financial plan.

Wyandanch Union Free School District – Budget Review (Suffolk County) Significant estimated revenues and budgeted expenditures in the $71.7 million adopted budget for the 2020-21 fiscal year are not reasonable. District officials were unable to produce sufficient documentation that their appropriations for employee benefits, the re-institution of athletics program, and certain utilities are adequate. Additionally, overtime costs will need to be monitored closely to ensure they do not exceed budgeted appropriations. Consequently, the 2020-21 appropriations may be underbudgeted by at least $2.7 million. The district may not have sufficient resources to meet its financial obligations unless the superintendent and board implement budget cuts in the 2020-21 budget.

Local government audits:

Village of Arkport – Water Fund Financial Operations (Steuben County) Auditors found complete and accurate accounting records were not maintained, the modified accrual basis of accounting was not used and interfund activity was not properly reported. As a result, the board could not adequately monitor the water fund’s financial operations. The board did not properly segregate water billing and collection duties or establish compensating controls. In addition, late penalties were not properly assessed on unpaid water bills.

Cortlandville Fire District – Credit Cards (Cortland County) The board did not ensure that certain credit card charges were supported, for appropriate purposes or paid timely. In addition, the board approved credit card charges totaling $18,124 without adequate supporting documentation. The district also incurred penalty charges totaling approximately $390 for late payments and $190 for interest.

Hudson Housing Authority – Information Technology (IT) (Columbia County) Authority officials did not ensure that IT systems were adequately secured and protected against unauthorized use, access and loss. The board did not adopt an acceptable use policy, and officials did not provide IT security awareness training. In addition, the authority did not have adequate online banking agreements.

Evaluating the credibility of testimony given at a disciplinary hearing

Three New York City correction officers were served with disciplinary charges alleging that each had submitted false or misleading reports concerning retaliatory force used by a captain against an inmate. 

New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge Astrid B. Gloade found that two of the correction officers were in positions whereby they were able to observe the use of force by the captain and did not credit their claims that they did not witness the event. 

The third correction officer testified that he did not include the captain's use of force in his report because the inmate was able to prevent the captain's blows "from landing." Judge Gloade rejected the third correction officer's explanation, finding that the New York City Department of Correction’s "Use of Force Directive" requires that an attempted use of force by another officer on an inmate be reported regardless of whether the attempted use of force against the inmate was successful or not. 

The ALJ found that the three correction officers' failure to include the captain’s use of force  on an inmate in their respective incident reports rendered their reports incomplete and inaccurate and recommended that each officer be suspended without pay for 15 days as the disciplinary penalty to be imposed for their filing incomplete and inaccurate reports of the event. 

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/20_cases/20-156.pdf