Government Technology webinar - update for the week of April 12, 2021

How Vallejo Boosted Economic Development in a Post-Pandemic Economy
Leaders from the city of Vallejo, Calif. explore the business challenges faced by the city and how a mission critical, cloud-platform solution was implemented to enable residents to do business with the city electronically, reduce call volumes and decrease processing backlogs, and boost economic development during a time of growing fiscal uncertainty. Watch Now

How King County Took a Hybrid Cloud Approach to Modernization
Most government leaders recognize the value cloud can bring to their organizations. However, they also realize that shutting down to undertake a wholesale cloud migration isn’t realistic. Instead, they must follow a hybrid approach — taking a series of incremental, bite-sized steps toward cloud migration while continuing to manage on-premises data centers, applications and other legacy systems. Watch Now

Using DevOps Metrics to Effectively Contain Costs
The current economic climate has severely impacted budgets. Reducing institutional costs and increasing efficiencies will be a top priority in 2021 and beyond. This webinar will take a deep dive into cost control strategies that can simultaneously help government organizations accelerate their digital modernization efforts. Watch Now

High-Velocity Service Management: Delivering Constituent Services Better, Faster and Cheaper
Constituents’ needs and expectations are constantly changing and evolving, which is why governments are working hard to deliver citizen services faster and more effectively than ever before. Automation helps agencies modernize constituent service management and streamline workflows. But most full-scale service desk solutions remain too costly for many governments, especially at a time of severe budget constraints. Watch Now

A MASTER CLASS: How to Create a Resilient Government of Tomorrow
The topic of resilience is especially important as governments emerge from the pandemic only to find their needs have grown while their resources have become more limited. As they move forward, how will governments lay the proper foundation for their resilience needs and design the right strategy to ensure resilience? How will they implement this strategy? These are important questions this masterclass will help answer in five modules. Start the Class Now

To view more on-demand and upcoming webinars, visit webinars.govtech.com.

For assistance with registration, contact:
Jeremy Smith, jsmith@erepublic.com (916) 932-1402 direct

 

Vaccine Passports: New York

How Excelsior Pass, the First U.S. Vaccine Passport, Works 

[Source: GOVTECH TODAY]

The idea of vaccine passports is drawing its share of controversy, but while some states are shutting the idea down, New York’s Excelsior Pass is off and running. GT’s Ben Millerbreaks down what the tool does and doesn’t do. And a contributed piece on GT this week considers whether blockchain technology has a role to play in the creation of secure vaccine passports. 

Click HERE to access the full text of the article posted by GOVTECH TODAY.

 

New York State Comptroller Releases Municipal and School District Audits

New York State Comptroller Thomas P. DiNapoli released the following audits of government entities during the week ending April 11, 2021.

Click on the text in COLOR to access the audit report.

Municipal Audits

• Albany Water Board
• City of Peekskill
• Grand Gorge Fire District
• Masonville Fire District
• Middletown No. 1 Fire District
• Town of Greenwich
• Town of New Hudson
• Village of Head of the Harbor

 

School District Audits

• Briarcliff Manor Union
• Broadalbin-Perth
• Cherry Valley-Springfield
• Hamilton
• Ravena-Coeymans-Selkirk

 

Judical review of rejections of Freedom of Information requests for public records

The petitioner [Plaintiff] in this first CPLR Article 78 of two Freedom of Information Law [FOIL] actions sought a court order to compel the agency to produce certain public records Plaintiff had demanded. Supreme dismissed the proceeding and Plaintiff appealed.

The Appellate Division vacated the dismissal of the action by Supreme Court in part and remanded the matter "to a different judge" for further proceedings "consistent with [the Appellant Division's] order".

Citing Matter of Lesher v Hynes, 19 NY3d 57, the court explained that the agency "failed to meet its burden of establishing that disclosure of any records responsive to [Plaintiff's] FOIL request would "interfere with law enforcement investigations or judicial proceedings," and, in any event, that the exemption no longer applies "after enforcement investigations and any ensuing judicial proceedings have run their course".

The Appellate Division also noted that it rejected the agency's "broad arguments for withholding all of the responsive records" as to honor such a contention "would amount to a blanket exemption that would seemingly apply to virtually any records of any investigation conducted by [the agency]".

In the words of the court, "blanket exemptions for particular types of documents are inimical to FOIL's policy of open government." Click HERE to access this decision by Appellate Division.

The Appellate Division, however, dismissed a second appeal of Article 78 action involving anther FOIL application brought by the same Plaintiff seeking certain other public records.

In this second case Plaintiff sought a court order to compel the agency to disclose records for "all requests for religious accommodations (such as, dress, shifts etc.) by employees and the result thereof ... includ[ing] ... the job title and date," during a specified three-year period.

The court opined that Plaintiff "failed to describe the documents sought with sufficient specificity as to permit [the agency] to identify and locate them," citing Matter of Lebron v Smith, 40 AD3d 515, leave to appeal denied, 9 NY3d 810.

In addition, the agency had submitted an affidavit executed by its Director of Human Resources explaining that "such information [was] not stored in any centralized manner, and that the only way to attempt a complete response to the [Plaintiff's] FOIL request would be to have the agency's thousands of employees search through their paper and electronic records." 

Thus, said the court, the agency had established "a valid basis for denying the [Plaintiff's] FOIL request" by showing that any responsive records "are not indexed in a manner that would enable the identification and location of documents" in the agency's possession. Click HERE to access this second ruling by the Appellate Division.

 

 

The New York State Budget for Fiscal 2021-2022

Click HERE to access Governor Andrew M. Cuomo's summary of the budget for the State's fiscal year 2021-2022 designed "to reimagine, rebuild and renew New York in the wake of the ongoing COVID-19 pandemic."

On April 7, 2021 State Comptroller Thomas p. Dinapoli issued the following statement addressing the Legislature and Governor agreement on a new state budget.

"More than a year into the pandemic, the number of cases remain high in New York but the accelerated pace of vaccinations and job growth in many sectors indicate an improving economic outlook. We are not out of the woods, and we must remain cautious as there is still uncertainty about the epidemic and the trajectory and equity of the recovery. 

“The budget includes significant new resources from federal aid and from tax increases. Higher personal income tax rates on high-income taxpayers will likely increase the volatility of personal income tax collections, and will make combined state and local rates for New York City high-income earners the highest in the nation. Effects on the recovery of New York City and on the state and city budgets must be monitored closely.

“New revenues will support investments in education and health care programs, provide benefits to the middle class, and importantly offer relief to New Yorkers and small businesses who need it, including workers who have been excluded from federal stimulus aid. Helping struggling New Yorkers is essential for an equitable recovery.

“While much of the new resources may be temporary and necessary to meet current needs, it is important that spending not grow to unsustainable levels. The state must plan for the end of emergency federal aid and use new tax resources to fund essential services, to once again begin contributing to rainy day funds and to reduce projected out-year gaps. Long-term alignment of recurring revenues with recurring spending is essential to putting New York’s fiscal house in order.

“My office’s full analysis of the enacted state budget will be released in the following weeks.”

 

Determining the jurisdiction where an individual alleged to have stolen funds from a New York Emergency Medical Squad may be tried for the alleged theft

A resident of Warren County [Petitioner] had served with an Emergency Squad [EMS] that essentially operated in a nearby county. Petitioner was indicted by a Warren County grand jury for alleged grand larceny, petit larceny and falsifying business records for his alleged theft of money from EMS bank accounts at locations in another county. Ultimately a trial was commenced in Warren County with respect three counts of grand larceny in the fourth degree and one count of falsifying business records in the first degree.

In response to Petitioner's supplemental omnibus motion/motion to reargue and reconsider, seeking, among other things, a court order dismissing the remaining counts of the indictment for lack of jurisdiction, Warren County Court held that Warren County was the proper geographical jurisdiction for the retrial of the four remaining counts. Warren County Court subsequently dismissed the count of falsifying business records in the first degree for insufficient evidence.

Petitioner then commenced a CPLR Article 78 proceeding in the Appellate Division seeking a writ of prohibition*to enjoin the prosecution of the three grand larceny counts in Warren County Court. The Warren County District Attorney [DA], in rebuttal, contended, "prohibition does not properly lie as other remedies are available, and that 'particular effect jurisdiction'** was demonstrated by the negative impact of Petitioner's conduct on the availability of emergency medical care in Warren County."

The Appellate Division opined that for "particular effect jurisdiction" to attach under the circumstances underlying this action, the DA was required to establish not only that Petitioner's alleged conduct had a materially harmful impact to the well-being of the Warren County community as a whole, but also that Petitioner intended his conduct to have such an impact, citing People v Fea, 47 NY2d 70.

Noting the decision of the Court of Appeals in People v Ribowsky, 77 NY2d 284, the Appellate Division observed that "[a] defendant has the right at common law and under the State Constitution to be tried in the county where the crime was committed unless the Legislature has provided otherwise". Further, said the Appellate Division, "The burden is on the People to prove by a preponderance of the evidence that the county where the crime is [being] prosecuted is the proper venue because either the crime was committed there or one of the statutory exceptions is applicable".

Finding that the DA had offered no proof of such intent on the part of Petitioner and had failed to establish that Plaintiff's alleged theft of money in the amount of $3,900 from EMS*** caused such a "materially harmful impact upon the governmental processes or community welfare" of Warren County to justify the extraordinary exercise of "particular effect jurisdiction", the Appellate Division granted Plaintiff's motion seeking the writ of prohibition.

* A writ of prohibition is a written order by a higher court to a lower court typically forbidding the lower court from taking further action in a case then pending before it.

** See §20.10(4) of the Criminal Procedures Law.

*** Described by the Appellate Division as "a nongovernmental entity serving one town within Warren County".

Click HEREto access the Appellate Division's decision.

Determining the jurisdiction where an individual alleged to have stolen funds from a New York Emergency Medical Squad may be tried for the alleged theft

A resident of Warren County [Petitioner] had served with an Emergency Squad [EMS] that essentially operated in a nearby county. Petitioner was indicted by a Warren County grand jury for alleged grand larceny, petit larceny and falsifying business records for his alleged theft of money from EMS bank accounts at locations in another county. Ultimately a trial was commenced in Warren County with respect three counts of grand larceny in the fourth degree and one count of falsifying business records in the first degree.

In response to Petitioner's supplemental omnibus motion/motion to reargue and reconsider, seeking, among other things, a court order dismissing the remaining counts of the indictment for lack of jurisdiction, Warren County Court held that Warren County was the proper geographical jurisdiction for the retrial of the four remaining counts. Warren County Court subsequently dismissed the count of falsifying business records in the first degree for insufficient evidence.

Petitioner then commenced a CPLR Article 78 proceeding in the Appellate Division seeking a writ of prohibition*to enjoin the prosecution of the three grand larceny counts in Warren County Court. The Warren County District Attorney [DA], in rebuttal, contended, "prohibition does not properly lie as other remedies are available, and that 'particular effect jurisdiction'** was demonstrated by the negative impact of Petitioner's conduct on the availability of emergency medical care in Warren County."

The Appellate Division opined that for "particular effect jurisdiction" to attach under the circumstances underlying this action, the DA was required to establish not only that Petitioner's alleged conduct had a materially harmful impact to the well-being of the Warren County community as a whole, but also that Petitioner intended his conduct to have such an impact, citing People v Fea, 47 NY2d 70.

Noting the decision of the Court of Appeals in People v Ribowsky, 77 NY2d 284, the Appellate Division observed that "[a] defendant has the right at common law and under the State Constitution to be tried in the county where the crime was committed unless the Legislature has provided otherwise". Further, said the Appellate Division, "The burden is on the People to prove by a preponderance of the evidence that the county where the crime is [being] prosecuted is the proper venue because either the crime was committed there or one of the statutory exceptions is applicable".

Finding that the DA had offered no proof of such intent on the part of Petitioner and had failed to establish that Plaintiff's alleged theft of money in the amount of $3,900 from EMS*** caused such a "materially harmful impact upon the governmental processes or community welfare" of Warren County to justify the extraordinary exercise of "particular effect jurisdiction", the Appellate Division granted Plaintiff's motion seeking the writ of prohibition.

* A writ of prohibition is a written order by a higher court to a lower court typically forbidding the lower court from taking further action in a case then pending before it.

** See §20.10(4) of the Criminal Procedures Law.

*** Described by the Appellate Division as "a nongovernmental entity serving one town within Warren County".

Click HEREto access the Appellate Division's decision.

An individual alleged to have stolen funds to be tried in the county where the crime was allegedly committed unless "particular effect jurisdiction" can be shown under the circumstances

A resident of Warren County [Petitioner] had served as a former treasurer of an Emergency Squad [EMS] that essentially operated in a nearby county. Petitioner was indicted by a Warren County grand jury for alleged grand larceny, petit larceny and falsifying business records for his alleged theft of money from EMS from bank accounts at locations in another county. Ultimately a trial was commenced in Warren County with respect three counts of grand larceny in the fourth degree and one count of falsifying business records in the first degree.

In response to Petitioner's supplemental omnibus motion/motion to reargue and reconsider, seeking, among other things, a court order dismissing the remaining counts of the indictment for lack of jurisdiction, Warren County Court held that Warren County was the proper geographical jurisdiction for the retrial of the four remaining counts. Warren County Court subsequently dismissed the count of falsifying business records in the first degree for insufficient evidence.

Petitioner commenced a CPLR Article 78 proceeding in the Appellate Division seeking a writ of prohibition*to enjoin the prosecution of the three grand larceny counts in Warren County. The Warren County Attorney [DA] contended, "prohibition does not properly lie as other remedies are available, and that 'particular effect jurisdiction'** was demonstrated by the negative impact of Petitioner's conduct on the availability of emergency medical care in Warren County."

The Appellate Division opined that for "particular effect jurisdiction" to attach in these circumstances, the DA was required to establish not only that Petitioner's alleged conduct had a materially harmful impact to the well-being of the Warren County community as a whole, but also that Petitioner intended his conduct to have such an impact, citing People v Fea, 47 NY2d 70.

Observing People v Ribowsky, 77 NY2d 284, noted the long-standing principle that "[a] defendant has the right at common law and under the State Constitution to be tried in the county where the crime was committed unless the Legislature has provided otherwise", the Appellate Division said that "The burden is on the People to prove by a preponderance of the evidence that the county where the crime is prosecuted is the proper venue because either the crime was committed there or one of the statutory exceptions is applicable".

Finding that the DA had offered no proof of such intent on the part of Petitioner and had failed to establish that Plaintiff's theft of money in the amount of $3,900 from EMS, a nongovernmental entity serving one town within Warren County, caused such a "materially harmful impact upon the governmental processes or community welfare" of Warren County to justify the extraordinary exercise of particular effect jurisdiction and granted Plaintiff's motion seeking the writ of prohibition.

* A writ of prohibition is a written order by a higher court to a lower court typically forbidding the lower court from taking further action in a case then pending before it.

** See §20.10(4) of the Criminal Procedures Law.

Click HEREto access the Appellate Division's decision.

 

Conducting a disciplinary hearing after the employee has resigned from the position

Despite evidence supporting allegations of sexual misconduct involving students, a public employer in another state "determined that it could not make a decision" about the employee's culpability because [1] the employee's refused to participate in its investigation of the allegations and [2] the employee already submitted his resignation from his former position.

In New York State 4 NYCCR 5.3, Resignation, may be relevant in the event the appointing authority is faced with such a situation.

Applicable to employees in the Classified Service employed by the State of New York as the employer, 4 NYCCR 5.3, in pertinent part, provides that in the event an employee submits a resignation "when charges of incompetency or misconduct have been or are about to be filed against an employee," the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and specification as provided by law or the terms of the controlling collective bargaining agreement.*

In the event that the individual is found guilty of such charges and the penalty imposed is termination from the service, his termination would be recorded as a dismissal rather than as a resignation.

Should the individual refuse to participate in the investigation and, or, a disciplinary hearing, the appointing officer may elect to conduct the individual's disciplinary hearing "in absentia".

New York courts have held that the disciplinary hearing may proceed and the employee tried in absentia provided, however, the appointing authority has complied with a number of procedural steps, including the following:

1. The appointing authority must properly serve the employee with the disciplinary charges and advise him or her, among other things, of the date, time and place of the hearing;

2. That a diligent effort was made to contact the individual to determine if he or she has a reasonable explanation for his or her absence before the hearing officer proceeds with holding the hearing in the absence of the accused employee;

3. A formal hearing must be conducted and the appointing authority is required to introduce evidence proving its charges to the hearing officer;

4. A formal record of the hearing must be made and a transcript provided to the appointing authority and, if requested, to the employee; and

5. The employee must be advised of the appointing authority’s determination and of the employee's right of appeal if he or she has been found guilty of one or more of the charges.

As the Appellate Division held in Mujtaba v NYS Dept. of Education, 148 A.D.2d 819; 107 A.D.3d 1066, “due process does not require that [the charged individual] be present at an administrative hearing, but rather requires notice of the charges and an opportunity to be heard.” What also is required, however, is that the appointing authority made a diligent effort to contact the employee to inform him or her that the disciplinary hearing had been scheduled and would take place even if the individual fails to appear and participate.**

Click HERE to access a New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge's decision that involved conducting a disciplinary hearing in absentia.

* Many Local Civil Service Commissions and Civil Service Law §15 Personnel Officers have adopted rules or regulations similar to those set out in 4 NYCCR 5.3 applicable to employees in the Classified Service in their respective jurisdictions.

** Mari v Safir, 291 AD2d 298, sets out the general standards applied by the courts in resolving litigation flowing from the appointing authority conducting a disciplinary hearing in absentia.

Audits and reports issued by the New York State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued on April 5, 2021.

Click on the text highlighted in color to access the complete audit report.

MUNICIPAL AUDITS

 Albany Water Board – Software Management (Albany County)

Auditors found software installed on Albany Water Board computers and mobile devices is not always appropriate and necessary. Auditors found unnecessary software on 60 computers (97 percent) and six mobile devices (32 percent) including gaming, streaming and shopping software. Officials did not establish controls to prevent computer and mobile device users from downloading applications from application stores.

 

Town of Greenwich – Purchasing (Washington County)

Town officials generally did not seek competition when purchasing goods and services. Of 50 purchases reviewed totaling $154,386 that required competitive quotes, 28 purchases totaling $81,857 lacked evidence of competition as required by the town’s purchasing policy.  Diesel fuel aggregate purchases totaling $35,474 were not competitively bid as required by law.

 

Masonville Fire District – Financial Activities (Delaware County)

Auditors found the board did not provide adequate financial operations oversight. The board did not review supporting documentation for nine disbursements totaling $57,374. They did not approve 12 disbursements totaling $75,880 before payment nor did they audit the treasurer’s records. The board also did not ensure sensitive and personal electronic data was adequately protected because the treasurer used her personal computer to maintain district financial records and perform online banking transactions.

 

Middletown No. 1 Fire District – Annual Financial Reports (Delaware County) The treasurer did not file required annual financial reports with the Office of the State Comptroller for fiscal years 2015-2019 in compliance with General Municipal Law. District officials were not aware that these reports needed to be submitted. 

 

 SCHOOL DISTRICT AUDITS 

 

Briarcliff Manor Union Free School District (Westchester County) Auditors found district officials generally used a competitive process to procure goods and services. However, they did not always seek competition for professional services.

 

Cherry Valley – Springfield Central School District – Financial Condition (Montgomery County and Otsego County) Officials effectively managed most aspects of the school district’s financial condition. However, they have not utilized their multiyear financial plans to help make financial decisions. Officials also have not adopted fund balance and reserve policies.

 

Hamilton Central School District – Procurement (Madison County) District officials did not always seek competition for the purchase of goods and services not subject to competitive bidding, as required by the district’s procurement policy. Officials did not seek competition for the services procured from five professional service providers totaling $658,164. In addition, officials did not obtain verbal and written quotes for the purchase of goods and services from 14 vendors totaling $126,907.

 

OTHER REPORTS

 

State Comptroller DiNapoli Statement on Impact of a Late State Budget - "The economic effects of the pandemic on the state’s finances are widespread and some sectors of our economy may take years to recover. The state Legislature and Governor are in the process of finalizing a new state budget. Many New Yorkers are hurting, and it is important that a final agreement is reached quickly."

State Contract and Payment Actions in February - In February, 2021, the Office of the State Comptroller (OSC) approved 1,407 contracts for state agencies and public authorities valued at $109 billion and approved more than 20.3 million payments worth nearly $14 billion. OSC rejected 110 contracts and related transactions valued at $100 million and more than 8,000 payments valued at nearly $18.2 million, primarily for mistakes, insufficient support for charges, and improper payments. More information on these contracts and payments is available at www.openbooknewyork.com. 

 

Recent postings on Kevin Sheerin's Law Blog "New York Civil Service Attorney"

Denial of Correction Officer’s Performance of Duty Retirement Benefits Annulled Due to Factual Errors - Matter of Paul Mazzotte v Thomas DiNapoli, as State Comptroller Petitioner was a correction officer for over 20 years. In 2001, he applied for performance of duty disability retirement benefits alleging he was permanently disabled by coronary artery disease (CAD) after having coronary artery bypass surgery. According to petitioner, the disease was caused by the...click to  Continue Reading…

Correction Officer Receives 60 Days Suspension for Excessive Use of Force -
In the Matter of Department of Correction v Stanley Saint-Phard… In this disciplinary proceeding, pursuant to Article 75 of the Civil Service Law, Respondent, a Correction Officer, allegedly used impermissible force against an inmate by dispersing a chemical agent in the inmate’s face and also placed the inmate in a chokehold. On October 16, 2008,...click to Continue Reading…

NYPD Disqualification for Loud Exhaust or Tinted Windows-
Sometimes younger people (often men), accumulate summonses or moving violations for “loud exhaust” or “tinted windows”. These violations accumulate over time and may grow to 5, 10, 15 or even 20 summonses. As the years pass these young people look to get a job with the NYPD or another law enforcement agency. After the application...click to Continue Reading…

Off-Duty NYPD Detectives Use of Force found Not Actionable
"Use of force", NYPD, deadly force, Firearms dischargeclick to Continue Reading…

Disqualification for High Blood Pressure Overturned -
A Nassau County Police Officer candidate failed to meet the Municipal Police Training Council standard for blood pressure and was disqualified in August 2013.  The candidate suffered from “White Coats Syndrome” which is an elevated blood pressure in a clinical setting.  The candidate had no history of hypertension with his primary physician.  TheNassauCounty...click to Continue Reading…

 

Recent General Information Bulletins published by the New York State Department of Civil Service

New York State Department of Civil Service recently published the following General Information Bulletins:

GIB 21-01, Enactment of the Restoration of Honor Act

GIB 21-02, Revision to the Statewide Employment Application

GIB 21-03, Reasonable Accommodation Appeals Review Committee

 

For those wishing to print these General Information Bulletins, below are links to versions in PDF format:

https://www.cs.ny.gov/ssd/pdf/GIB21-01.pdf

https://www.cs.ny.gov/ssd/pdf/GIB21-02.pdf

https://www.cs.ny.gov/ssd/pdf/GIB21-03.pdf

 

To view previous General Information Bulletins issued by the Department of Civil Service, visit: https://www.cs.ny.gov/ssd/gibs.cfm.