New York State Governor Andrew M. Cuomo signs law to protect public officers and employees in New York State in the event of another COVID-19 type of health emergency.

Governor Andrew M. Cuomo announced that he signed a new law* that will protect State officers, employees and officers and employees of political subdivisions of the State and school district personnel  in the event of another COVID-19 type of health emergency.

Those entities are to provide a list of positions considered essential, descriptions of how employees would stagger to reduce overcrowding, and protocols for personal protective equipment [PPE], as well as noting what is required when an employee is exposed to the disease. 

Plans must be submitted to employee organizations and labor management committees within 150 days, and plans must be finalized no later than April 1, 2021.

Operation plans must include:

List and description of positions considered essential;

Descriptions of protocols to follow to enable all non-essential employees to work remotely;

Description of how employers would stagger work shifts to reduce overcrowding

Protocols for PPE;

Protocol for when an employee is exposed to disease;

Protocol for documenting hours and work locations for essential workers;

Protocol for working with essential employees' localities for identifying emergency housing if needed; and

Any other requirement determined by the New York State Department of Health, such as testing and contact tracing.

In addition, the New York State Department of Labor is to provide an online portal for public employees to report violations of health and safety rules for communicable diseases, including COVID-19.

* Chapter 168 of the Laws of 2020. The act requires public employers in New York State to adopt a plan for operations in the event of a declared public health emergency involving a communicable disease which shall include identification of essential personnel, needed personal protective equipment, staggering work shifts and providing necessary technology for telecommuting.

 

The failure to serve a timely notice of claim upon a municipality or public corporation may be excused under certain circumstances

General Municipal Law §50-e requires that a "notice of claim" be served upon the municipality or public corporation within 90 days of the date that the claim arose as a condition precedent to commencing an action sounding in tort against a municipality or public corporation,.* 

The failure to serve a timely the notice of claim was the issue when a petitioner [State Trooper] sought for leave to serve a late notice of claim against the County and the County Sheriff [jointly "the County"] in order to bring a lawsuit against the County for State Trooper's injury she allegedly suffered while she was responding to a 911 call and her state police motor vehicle collided with a motor vehicle operated by a Deputy Sheriff employed by the County.

Supreme Court granted State Trooper's petition seeking to serve the late notice and the County appealed.

The Appellate Division, holding that Supreme Court "providently exercised its discretion" in granting State Trooper's petition to serve a late notice of claim on the County, explained:

1. In determining whether to grant leave to serve an untimely notice of claim, the court, in exercising its discretion, must consider all relevant circumstances, including whether (1) the petitioner demonstrated a reasonable excuse for the failure to serve a timely notice, (2) the municipality or public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and (3) the delay in seeking leave would substantially prejudice the municipality or public corporation in its ability to defend against the action;

2. "The presence or absence of any one of these factors is not necessarily determinative" and "the absence of a reasonable excuse is not necessarily fatal" to the courts granting the petition; and

3. Whether the municipality or public corporation acquired timely actual notice of the essential facts constituting the claim should be accorded great weight.

In this instance the Appellate Division, citing Kuterman v City of New York, 121 AD3d 646, concluded that the County acquired timely, actual knowledge of the essential facts constituting the claim, opining that "[a]lthough a police report regarding an automobile accident does not, in and of itself, constitute notice of a claim to a municipality. Where, however, the municipality's employee was involved in the accident and the report or investigation reflects that the municipality had knowledge that its employee committed a potentially actionable wrong, "the municipality can be found to have actual notice."

The police report, said the court, indicated that the County committed a potentially actionable wrong "when its employee allegedly failed to yield the right of way to the injured [State Trooper's] vehicle even though the injured [State Trooper's] vehicle's lights and sirens were activated" and the accident report indicated that the State Trooper "was allegedly injured in the accident."

Further, noted the Appellate Division, in responding to a Freedom of Information Law for documents related to this accident, the County produced the police accident report, photographs taken of the vehicles and the accident scene, unit activity logs for the vehicles, and the County Sheriff's report regarding the accident. Accordingly, the court concluded that "the County [had] acquired timely actual knowledge of the essential facts constituting the [State Trooper's] claim."

Finding that the County had acquired timely knowledge of the essential facts constituting the State Trooper's claim, the Appellate Division held that the State Trooper met her "initial burden of showing that the County would not be prejudiced by the late notice of claim" and the County "failed to come forward with particularized evidence demonstrating that the late notice of claim substantially prejudiced its ability to defend the claim on the merits."

Addressing the issue of State Trooper's delay in seeking to file a late notice of claim, the Appellate Division ruled that as the County had actual knowledge of the essential facts underlying the claim and as no substantial prejudice to the County was demonstrated, "[State Trooper's] failure to provide a reasonable excuse for the delay in filing [her] notice of claim did not serve as a bar to [Supreme Court's] granting leave to serve a late notice of claim.

* See Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455, Wally G. v New York City Health & Hosps. Corp. [Metro. Hosp.], 27 NY3d 672.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_04840.htm

 

 

ADA, FMLA, and the COVID-19 pandemic: How do they all come together?

Join Wolters Kluwer Legal Analyst Pamela Wolf for a one-hour roundtable discussion with a top-notch panel of experts who will help sort out employee leave issues, how the ADA and the FMLA intersect, and the impact of the FFCRA and the COVID-19 pandemic on these leave laws.

Topics of discussion will include:

Best practices

Understanding how the ADA and FMLA intersect

How COVID-19 impacts leave obligations

“Real life” workplace scenarios

Date: 9/23/2020 - Time: 1:00-2:00 PM EDT  

Live attendance is eligible for 1 complimentary CLE credit

Click below to Register:

https://know.wolterskluwerlr.com/LP=2169?utm_campaign=2327_L%26E%20Webinar%2009%2F2020%20ADA%20FMLA%20COVID&utm_medium=email&utm_source=Eloqua&elqTrackId=7046B34E6262B14525C89C3BE5109DCA&elq=e1b3c90aee86431780f7191a03fca717&elqaid=26516&elqat=1&elqCampaignId=11712

Failing to comply with statutory requirements for filing a complaint and, or, notifying the correct party of the alleged act or omission is a fatal procedural defect

Seeking reinstatement and back pay following his dismissal from his position, Petitioner [Plaintiff] brought a CPLR Article 78 action asking Supreme Court to review the determination of the Board of Education [Board] [a] terminating his employment and [b] its denial of payment for [1] certain days that he alleged he had worked, [2] his accrued sick leave credits, and [3] his unused health care benefits.

 

The Board, contending that Plaintiff had not complied with the notice of claim requirements set out in Education Law §3813(1), moved to dismiss Plaintiff's petition. The Supreme Court granted the Board's motion, in effect denying Plaintiff's petition for failure to comply §3813(1) and dismissed the proceeding. Plaintiff appealed the court's ruling.

 

The Appellate Division, affirming the lower court's ruling, explaining that §3813[1] provides that a written verified claim upon which such action or special proceeding is founded must be presented to the governing body of the school district "within three months after the accrual of such claim, and that the officer or body having the power to adjust or pay said claim has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment."

 

Citing Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, the Appellate Division, said a "failure to present a claim within the statutory time limitation or to notify the correct party, is a fatal defect."

 

While the Court of Appeals has held that where the school district has been sufficiently informed of the claim all that is required is substantial compliance with the statute regarding the degree of descriptive detail in a notice of claim, it has "nevertheless, always insisted that statutory requirements mandating notification to the proper public body or official must be fulfilled." Further, opined the Appellate Division, §3813[1]'s prerequisite is not satisfied by presenting such notice to any other individual or body and, moreover, "the statute permits no exception regardless of whether the Board had actual knowledge of the claim or failed to demonstrate actual prejudice."

 

Agreeing with the Supreme Court's finding that Plaintiff failed to present his purported notice of claim to the governing body, namely, the Board, the Appellate Division pointed out that Plaintiff's sending a letter setting out his claims to the School District's Superintendent did "not constitute service upon the Board."

 

The fact that the Board ultimately obtained actual knowledge of the letter from the Superintendent's office did not satisfy the mandates set out in §3813[1] and Plaintiff failed to submit an affidavit of service or any other evidence to demonstrate that he had, in fact, served or presented his letter to the Board.

 

The decision is posted on the Internet at: 

http://www.nycourts.gov/reporter/3dseries/2020/2020_04839.htm

 

New York State registered voters concerned about risk or exposure to COVID-19 may request an absentee ballot for the November 3, 2020 election

New York State's Governor Andrew M. Cuomo issued an Executive Order permitting any New York State registered voter concerned about risk or exposure to COVID-19 to request an absentee ballot.

 

On September 1, 2020, Governor Andrew M. Cuomo announced the launch of New York's Absentee Ballot Portal where voters can directly request an absentee ballot for the November 3, 2020 election. The Governor's Executive Order to permits any voter concerned about risk or exposure to COVID during the ongoing pandemic to request an absentee ballot.   

The Governor also issued an Executive Order to bolster and support New Yorkers' right to vote. The order requires county boards of elections to take concrete steps to inform voters of upcoming deadlines, be prepared for upcoming elections and help ensure absentee ballots can be used in all elections.

All Registered New York State Voters Can Request an Absentee Ballot Here

September 2020 AELE case notes, publications, and seminar announcements

The Americans for Effective Law Enforcement [AELE] has announce the following:

Public Safety Discipline and Internal Investigations Seminar---Attend Virtually On Demand. 

A 3½ day updated seminar on "Public Safety Discipline and Internal Investigations" begins September 28, 2020 and ends at Noon on October 1, 2020. This is an ON-DEMAND presentation, enabling those registered to attend, review, and complete "the entire seminar at your convenience, in comfortable surroundings, and gives you the opportunity to replay presentations to make sure you hear the important points of the many presenters." For registration and additional information click on http://www.aele.org/public-safety-discipline-and-internal-investigations.html

September Law Enforcement Liability Reporter: 

This issue has cases on assault and battery: physical, electronic control weapons: dart mode, failure to disclose evidence, false arrest/imprisonment: no warrant, false arrest/imprisonment: warrant, firearms related: accidental use, firearms related: intentional use, immigrants and immigration issues, and search and seizure: body cavity. http://www.aele.org/law/2020all09/LR2020SEP.pdf

September Fire, Police & Corrections Personnel Reporter: 

This issue has cases on age discrimination, collective bargaining, disciplinary interviews & compelled reports, disciplinary punishment, handicap/abilities discrimination: reasonable accommodation, pensions, religious discrimination, retaliatory personnel action, and wrongful discharge.  http://www.aele.org/law/2020all09/FP2020SEP.pdf

September Jail and Prisoner Law Bulletin: 

This issue has cases on First Amendment, gang activity, inmate funds, Prison Litigation Reform Act: exhaustion of remedies, Prison Litigation Reform Act: “three strikes” rule, prisoner assault: by inmates, prisoner discipline, prisoner suicide, and religion. http://www.aele.org/law/2020all09/JB2020SEP.pdf

New York State's Governor directs the State's Division Of Human Rights to investigate reports of a fire truck in a parade displaying a Confederate flag

Learning of a fire truck in a parade displayed a Confederate flag, New York State Governor Andrew M. Cuomo said "I'm appalled by reports that a Confederate flag was flown on a Brookhaven Fire Department truck at a Patchogue parade. We have zero tolerance for symbols of racism or division, and I have directed the New York State Division of Human Rights to investigate the incident immediately."

On August 31, 2020, a newspaper, Newsday, published an article concerning the incident. The article is posted on the Internet at:

https://www.newsday.com/long-island/suffolk/confederate-flag-brookhaven-patchogue-firetruck-1.48765917.

The Arizona State Supreme Court adopts The New Civil Liberties Alliance's proposed changes to court rules

The New Civil Liberties Alliance [NCLA], a nonpartisan, nonprofit civil rights group, announced that the Arizona Supreme Court "adopted verbatim" an NCLA-drafted amendment to the court's Judicial Review of Administrative Decisions Rules making it easier for litigants to obtain Superior Court stays of administrative decisions.

The new rule goes into effect starting January 1, 2021 and affects all appeals from the final decisions of all Arizona state agencies that are required to go to the  Arizona Superior Court.

The text of the amendment is posted on the Internet at https://nclalegal.org/wp-content/uploads/2020/08/Order-R200008.pdf.

For information about NCLA click on https://nclalegal.org/about/.

Basics of federal law regulating federal, state, municipal and certain other officers and employees engaging in partisan political activities

5 U.S.C. §7321, et seq, An Act to Prevent Pernicious Political Activities and typically referred to as the Hatch Act, was enacted by Congress to express its policy that "employees should be encouraged to exercise fully, freely, and without fear of penalty or reprisal, and to the extent not expressly prohibited by law, their right to participate or to refrain from participating in the political processes of the Nation." Recently significant attention has been focused on provisions set out in law prohibiting partisan political activities by most officers and employees serving in executive branch of the federal government. 

On April 20, 2020, the Congressional Research Service (CRS), a nonpartisan shared staff to congressional committees and Members of Congress, posted a publication, The Hatch Act: A Primer, on the Internet at A Guide to the Hatch Act for Federal Employees - OSC.gov .

The Hatch Act, however, also applies to state officers and employees and officers and employees of political subdivisions of a state whose principal employment is in connection with an activity which is financed, in whole or in part, by the federal government. This prohibition, however, does not apply to individuals employed by educational or research institutions that a state supports and certain religious, philanthropic and cultural organizations. For example, the  members of a public school board of education and school officers and teachers employed by a public school are not within the ambit of the Act.

The New York State Bar Association posted an article by Sung Mo Kim, Esq. on the Internet addressing the applicability of the Hatch Act to New York State municipal officers and employees at https://nysba.org/app/uploads/2020/03/HatchActKimMunicipalFall06.pdf.

In addition, public employers in New York State may prohibit its officers and employees from campaigning for, and holding, elected office subject to its action satisfying the so-called Pickering Balancing Test. See https://publicpersonnellaw.blogspot.com/2018/09/public-employers-may-prohibit-its.html.

Removal of an individual's name from an eligible list or from his position by action of the State Department of Civil Service or by a municipal commission

§50.4 of the Civil Service Law provides for removing the name of an individual for appointment to a position in the competitive class from an eligible list or from the position if the individual was appointed from the eligible list. The New York State Department of Civil Service or a municipal civil service commission, as the case may be, on its own initiative or upon the request of an appointing authority, determine if an individual whose name appears on an eligible list, or who has been appointed from an eligible list, should be disqualified for appointment to the position.

For example, §50.4 provides that the State Department of Civil Service may refuse to examine an applicant, or after examination to certify an eligible for appointment to the position for a number of reasons, including, but not limited to:

1. The individual's lack any of the established requirements for admission to the examination or for appointment to the position; or

2. An individual who has been dismissed from a permanent appointment to position in the public service upon stated written charges of incompetency or misconduct; or

3. An individual who has intentionally made a false statement of any material fact in his application; or

4. An individual who has been dismissed from private employments because of habitually poor performance.

No person, however, may be disqualified pursuant to §50.4 unless he has been given a written statement of the reasons for such action and given an opportunity to offer an explanation and to submit facts in opposition to such disqualification.

Further, no person may be removed from his position based on findings made after an investigation of his qualifications and background more than three years after he has been appointed from the list because of finding of facts which if known prior to appointment, would have warranted his disqualification or upon a finding of "illegality, irregularity or fraud of a substantial nature" in his application, examination or appointment, except in the case of fraud.

For example, an employee removed from his position pursuant to §50.4 by the Personnel Officer and Director of Wayne County Civil Service Commission after a making a finding that the employee had “intentionally made false statements of material facts in his application or (had) attempted to practice (a) deception or fraud in his application” based on its finding that the employee had falsified his application with respect to his experience as a police officer and concealed facts related to his separation from a previous employment.

Although the employee sued, contending he could not be removed from his position without first being given an administrative due process hearing, the Appellate Division disagreed.*

The Appellate Division opined that "petitioner was accorded his full right to explain his conduct," and that he was not entitled to a hearing, citing Matter of Shraeder v Kern, 287 N.Y. 13. In the words of the Appellate Division, §50.4 “requires no more than that the person be given a written statement of the reasons therefore and afforded an opportunity to make explanation and to submit facts in opposition to such disqualification.”

* 78 A.D.2d 984, affirmed 55 NY2d 1019.

Trial practices and procedures of the New York City Office of Administrative Trials and Hearings during the COVID-19 pandemic

In United States v. Gigante, 166 F.3d 75, the United States Court of Appeals, Second Circuit, held that "even in the context of criminal proceedings, 'upon a finding of exceptional circumstances' a witness may be permitted to testify via two-way closed-circuit television when this furthers the interest of justice." The court then opined that the "COVID-19 pandemic presents such exceptional circumstances."

New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judges Astrid B. Gloade and Faye Lewis, respectively, denied applications filed by Respondents to hold in-person trials rather than their conducting trials through videoconferencing. Both ALJs explained that OATH has long recognized that testimony may be taken by videoconferencing when there is a compelling need to do so.

Both ALJs found that the COVID-19 pandemic establishes compelling circumstances for holding remote trials and explained that OATH's current practices and procedures provide for conducting all trials remotely except when an ALJ determines, upon motion, that there is a particularized, compelling need for an in-person trial that can be conducted in compliance with applicable health and safety guidelines.

These rulings by the ALJs reflected the Order OATH's Chief Administrative Law Judge Joni Kletter* issued "due to the emergency circumstances caused by the continuing COVID-19 outbreak in the City of New York" wherein Chief ALJ Kletter stated, in pertinent part, that "All trials before the OATH Trials Division will be conducted by Cisco Webex (or a similar system approved by the OATH Trials Division) which is widely available at no additional cost" under the circumstances.

Finding that Respondents, respectively, failed to demonstrate "a particularized, compelling need for in-person trials" the ALJs opined that videoconferencing of the OATH proceeding would permit parties to submit evidence electronically and conduct direct and cross-examination of witnesses, whose demeanor would be readily observable on the video platform by the ALJ conducting the trial or the hearing. Accordingly, the ALJs denied the applications submitted by Respondents to them, respectively, to conduct their hearings in the form of in-person trials.

* See OATH Chief Judge’s Order addressing adjudications by OATH’s Trials Division during the COVID-19 outbreak.

Municipal audits released by New York State Comptroller Thomas P. DiNapoli

On August 25, 2020, State Comptroller Thomas P. DiNapoli issued the local government audits listed below:

To access the full text of the audit click on the text highlighted in color.

Village of Broadalbin – Board Oversight of Cash Receipts and Disbursements (Fulton County)

The board did not adequately monitor cash receipts and disbursements. The clerk-treasurer collected, deposited and recorded cash receipts and prepared and signed checks without adequate review or approval by the mayor or board. The board did not receive or review bank statements or canceled check images to help minimize the risk of unauthorized transactions or other errors or irregularities occurring and remaining undetected.

Town of Corning – Financial Condition (Steuben County)

The board adopted budgets that underestimated revenues (until 2019), overestimated appropriations and failed to use most of the appropriated fund balance for operations. Auditors determined the board did not effectively manage the town’s financial condition, which resulted in the town-wide general fund having unassigned fund balance totaling $768,926 as of December 31, 2019, or 79 percent of actual expenditures. In addition, the board did not develop multiyear financial and capital plans or adopt a reasonable fund balance policy.

Town of Palermo – Timeliness of the Supervisor’s Records and Reports (Oswego County)

The town supervisor did not maintain up-to-date records and reports. In addition, the town supervisor did not make deposits and maintain accounting records in a timely manner. Auditors also determined the town supervisor did not file the town’s 2016, 2017 and 2018 annual update documents, which are required annual financial reports, with the State Comptroller’s office in a timely manner.

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