Commission on Ethics and Lobbying in Government - Adjudicatory Proceedings and Appeals Procedures for "Matters Under the Commission’s Jurisdiction"

Commission on Ethics and Lobbying in Government

I.D. No. ELG-45-22-00024-E
Filing No. 66; Filing Date: 2023-01-23; Effective Date: 2023-01-23

An Emergency Rule amending Part 941 of Title 19 NYCRR was published in the State Register on February 8, 2023 [Vol. XLV, Issue 6] based on a fin of the State Register.
Statutory authority: Executive Law, section 94(1)(a), (5)(a), (10) and (11)

Finding of necessity for emergency rule: Preservation of general welfare.

Specific reasons underlying the finding of necessity: The regulatory
amendments are necessary to conform to the Ethics Commission Reform
Act of 2022, L 2022, ch 56, § 1, Part QQ (“ECRA”) which established the
Commission on Ethics and Lobbying in Government (“Commission”) as
the agency responsible for administering, enforcing, and interpreting New
York State’s ethics and lobbying laws. The regulatory amendments are
necessary to facilitate the expeditious and efficient performance of the
Commission’s investigative and enforcement duties as set forth in Section
94 of the Executive Law, the Commission’s enabling statute.

The emergency rule is necessary for the general welfare to enforce eth-
ics laws that are critical matters of public interest. Therefore, upon Emer-
gency Adoption, these amendments will take effect immediately.
Subject: Adjudicatory proceedings and appeals procedures for matters
under the Commission’s jurisdiction.

Purpose: To conform Part 941 to the new Executive Law section 94
established by the Ethics Commission Reform Act of 2022.

Substance of emergency rule (Full text is posted at the following State
website: https://ethics.ny.gov/proposed-regulations-and-guidance): The
Emergency Re-Adoption amends 19 NYCRR Part 941 to conform the
regulations governing the investigative and enforcement adjudicatory pro-
cess to the new Section 94 of the Executive Law, as established by the
Ethics Commission Reform Act of 2022.

Key changes in the law, as set forth in these amendments, provide that a
Commission vote is no longer required to initiate an investigation. Instead,
Commission staff or the Commission can decide to elevate a preliminary
review into an investigation, and staff will present the matter to the Com-
mission for a vote after it has investigated a potential violation(s) of the
laws under the Commission’s jurisdiction. At that time, the Commission
may vote to proceed to hearing, return the matter to staff for further
investigation, close the matter or authorize resolution of the matter through
guidance.

The regulatory amendments further conform to and clarify statutory
changes relating to the various notices the Commission may send, which
include a Notice of Allegations, Notice of Hearing, and Notice of Closure,
Continued Investigation or Guidance, and the requirements of such
notices.

Furthermore, this rulemaking clarifies provisions relating to the conduct
of hearings and authority of hearing officers and the attorneys for the par-
ties to issue hearing subpoenas.

This notice is intended to serve only as a notice of emergency adoption.
This agency intends to adopt the provisions of this emergency rule as a
permanent rule, having previously submitted to the Department of State a
notice of proposed rule making, I.D. No. ELG-45-22-00024-EP, Issue of
November 9, 2022. The emergency rule will expire March 23, 2023.

Text of rule and any required statements and analyses may be obtained
from: Megan Mutolo, Commission on Ethics and Lobbying in Govern-
ment, 540 Broadway, Albany NY 12207, (518) 408-3976, email:
megan.mutolo@ethics.ny.gov

Regulatory Impact Statement

1. Statutory Authority: Executive Law § 94(1)(a) provides the Commis-
sion on Ethics and Lobbying in Government (“Commission”) with the
responsibility to administer, enforce and interpret New York State’s ethics
and lobbying laws, and Subsection 94(5)(a)(i) and (ii) authorize the Com-
mission to adopt, amend and rescind any rules and regulations pertaining
to the statutes within its jurisdiction and to adopt, amend and rescind any
procedures of the Commission, including procedures for investigations
and enforcement. Section 94(10) further authorizes the Commission to
adopt rules governing the conduct of adjudicatory proceedings and
appeals,. In addition, Part 941 sets forth rules for adjudicatory proceedings
and appeals relating to potential violations of the laws that fall within the
Commission’s jurisdiction, including investigatory matters conducted pur-
suant to and in accordance with Executive Law § 94(10) and (11).

2. Legislative Objectives: To set forth procedures regarding the conduct
of preliminary reviews and investigations in conjunction with adjudica-
tory proceedings and appeals for matters arising under the Commission’s
jurisdiction, as set forth in Section 94 of the Executive Law.

3. Needs and Benefits: This Emergency Re-Adoption amends 19
NYCRR Part 941 to conform to new Section 94 of the Executive Law,
established by the Ethics Commission Reform Act of 2022, relating to the
Commission’s investigative and enforcement process.

4. Costs:

a. Costs to regulated parties for implementation and compliance:
Minimal.

b. Costs to the agency, State and local governments for the implementa-
tion and continuation of the rule: No costs to such entities.

c. Cost information is based on the fact that there will be minimal costs
to regulated parties and state and local government for training staff on
changes to the requirements. The cost to the agency is based on the
estimated slight increase in staff resources to implement the regulations.

5. Local Government Mandates: 

The Emergency Re-Adoption and Proposed Rule does not impose new programs, services, duties or responsibilities upon any county, city, town, village, school district, fire district or other special district.

6. Paperwork: This regulation may require the preparation of additional
forms or paperwork. Such additional paperwork is expected to be minimal.

7. Duplication: This regulation does not duplicate any existing federal,
state or local regulations.

8. Alternatives: Section 94(10)(o) of the Executive law imposes an af-
firmative duty on the Commission to adopt rules governing the conduct of
adjudicatory proceedings and appeals. Therefore, there is no alternative to
amending the Commission’s existing regulation if the Commission
changes its procedures.

9. Federal Standards: This regulation does not exceed any minimum
standards of the federal government with regard to a similar subject area.

10. Compliance Schedule: Compliance with the emergency regulation
will take effect on the date it is filed with the Department of State. The
Proposed Rulemaking will take effect upon adoption.

 

Regulatory Flexibility Analysis

A Regulatory Flexibility Analysis for Small Businesses and Local Govern-
ments is not submitted with this Notice of Emergency Re-Adoption
because the rulemaking will not impose any adverse economic impact on
small businesses or local governments, nor will it require or impose any
reporting, record-keeping, or other affirmative acts on the part of these
entities for compliance purposes. The Commission on Ethics and Lobby-
ing in Government makes this finding based on the fact that the rule imple-
ments current law and, therefore, imposes no new requirements on such
entities.

Rural Area Flexibility Analysis

A Rural Area Flexibility Analysis is not submitted with this Notice of
Emergency Re-Adoption because the rulemaking will not impose any
adverse economic impact on rural areas, nor will it require or impose any
reporting, record-keeping, or other affirmative acts on the part of rural
areas. The Commission on Ethics and Lobbying in Government makes
this finding based on the fact that the rule implements current law and,
therefore, imposes no new requirements on such entities. Rural areas are
not affected.

Job Impact Statement

A Job Impact Statement is not submitted with this Notice of Emergency
Re-Adoption because the proposed rulemaking will have limited, if any,
impact on jobs or employment opportunities. This regulation implements
current law and, therefore, imposes no new requirements. This regulation
does not relate to job or employment opportunities.

Assessment of Public Comment

The agency received no public comment since publication of the last as-
sessment of public comment.

 

Removing a tenured State or municipal employee alleged to have abandonment the position from service

New York State Civil Service Rule 4 NYCRR 5.3(d), since repealed, permitted the appointing authority of a State department or agency employee to terminate a tenured employee in the Classified Service absent for a period of ten or more days without an explanation by deeming the employee to have resigned from his or her position. Many local commissions had adopted a similar rule or regulation. In Bernstein v Industrial Commissioner, 59 AD2d 678, the Appellate Division held that so terminating such a tenured employee under color of 4 NYCRR 5.3(d) violated the employee's right to administrative due process. 

Notwithstanding the Bernstein decision, such a provision has survived in collective bargaining agreements negotiated pursuant to Article 14 of the Civil Service Law, the so-called "Taylor Law", with respect to tenured employees in the Classified Service. For example, in Schacht v City of New York, 39 NY2d 28, the Court of Appeals noted that the relevant collective bargaining agreement expressly provided that the unauthorized absence of a tenured employee in the Classified Service for 10 consecutive workdays could be deemed to constitute a resignation by the appointing authority.

In Ciccarelli v West Seneca Central School District, 107 AD2d 105, a tenured teacher* challenged a Board of Education’s resolution terminating her from her position based on its finding that she had abandoned her position. Tracking Bernstein, the Appellate Division the court explained that the burden of proving that the educator had abandoned her tenured teaching position was upon the appointing authority and must be supported  "by clear and convincing evidence" that a teacher, by a "voluntary and deliberate act" intended to relinquish her teaching position and forfeit her tenure rights. Otherwise, opined the court, a tenured teacher may be terminated only in accordance with the disciplinary procedures set out in §3020-a of the Education Law.

* Teachers serve in positions in the Unclassified Service.

The finding of an unwarranted invasion of privacy an exception to disclosure of medical records pursuant to New York State's Freedom of Information Law

In this appeal the Appellate Division held that Supreme Court had properly determined that an exception to New York State's Freedom of Information Law [FOIL] disclosure requirements for "an unwarranted invasion of privacy", applied to the medical records of Petitioner's murder victim, citing Public Officers Law §87[2][b] and Newton v District Attorney of Bronx County, 186 AD2d 57,

In addition, the Appellate Division held that "Autopsy records concerning the Petitioner's victim were also exempt from disclosure," citing Public Officers Law §87[2][a]; the New York City Charter §557[g]; and Mitchell v Borakove, 225 AD2d 435, [appeal dismissed 88 NY2d 919.

Addressing the Respondent's denial of access to graphic photographs of the victim of the murder pursuant to Public Officers Law §87(2)(b), the Appellate Division opined that Petitioner "failed to articulate any public interest in disclosure of these photographs which would require the court to balance the public's interest in disclosure against the victim and her family's privacy rights", citing Matter of New York Times Co. v City of N.Y. Fire Dept., 4 NY3d 477, and Matter of Edwards v New York State Police, 44 AD3d 1216.

Click HERE to access the opinion of the Appellate Division posted on the Internet.

Retired county police officer alleged to have taken unlawful pension benefits from the New York State and Local Retirement System

On February 7, 2023, New York State Comptroller Thomas P. DiNapoli and Ulster County District Attorney David J. Clegg announced the indictment* of a former Ulster County BOCES criminal justice instructor, a retired Westchester County Police Officer. The retired police officer allegedly stole over $163,000 from the New York State and Local Retirement System (NYSLRS) by taking unlawful pension payments and forging a required certificate purportedly issued by the State Education Department (SED).

“The defendant allegedly submitted forged documents to scam the New York state retirement system,” DiNapoli said. “He will now face the consequences of his actions. Safeguarding the New York State and Local Retirement System and maintaining its integrity are priorities for my office. I thank District Attorney Clegg, the State Education Department and the State Police for their partnership in holding accountable those who think they can swindle the pension system.”

After retiring from the Westchester Police Department in 2005, Anthony Sciacca was hired as an instructor at Ulster County BOCES teaching criminal justice and earning a salary of over $70,000. As a retiree under the age of 65 at the time, without a waiver, Sciacca was not allowed to earn more than $30,000 annually in other New York State public employment while continuing to receive his full NYSLRS pension benefit.**

The joint investigation revealed that while Sciacca had a lawful waiver from Sept.1, 2005 through June 30, 2011, he did not have a lawful waiver for the next eight years. However, he continued to earn his Ulster County BOCES public salary in excess of $70,000 on top of receiving his monthly NYSLRS pension payments.

When the NYSLRS discovered that Sciacca’s income was over the limit and that it had no waivers on file, Sciacca’s pension was suspended, and he was asked to provide copies of any waivers he had been granted. In response to NYSLRS’ inquiry, Sciacca allegedly supplied the retirement system with falsified documents. These documents stated that his waivers had been approved.

The investigation revealed that these documents were fraudulent, and that no such waivers had been obtained. Through his scheme, Sciacca was able to collect over $163,000 in NYSLRS pension payments to which he was not entitled.

DiNapoli’s investigation was spurred by SED’s examination of Sciacca’s credentials. During this review, SED also discovered that Sciacca had allegedly forged a document to show that he had received a “Security Operations, Professional Certificate,” which was a requirement of his continued BOCES employment. 

Sciacca was arraigned in Ulster County Criminal Court before Judge Bryan E. Rounds on Feb. 6, 2023, and is due back in court on Feb. 22, 2023. He was charged with Scheme to Defraud, Grand Larceny, Defrauding the Government, four counts of Forgery, two counts of Offering a False Instrument for Filing, two counts of Falsifying a Business Record and Retirement Fraud. Ulster County Assistant District Attorney Felicia S. Raphael, chief of the Financial & Cyber Crimes Bureau, is prosecuting the case.

The charges add to those first brought against him when he was arrested on July 14, 2022, which then included Grand Larceny, three counts of Forgery, three counts of Filing a False Instrument, three counts of Falsifying Business Records and one count of retirement fraud.

* The charges filed in this case are merely accusations and the defendant is presumed innocent unless and until proven guilty in a court of law.

** See, generally, Article 7 of the Retirement and Social Security Law, which addresses the reemployment of retired public employees of the State of New York in the public service in the State of New York.

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Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at https://www.osc.state.ny.us/investigations, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

Employer's motion to confirm an arbitration award granted

The Appellate Division affirmed Supreme Court's denial of the Respondent union's cross motion to vacate the arbitration award, explaining courts lacks the authority, to "examine the merits of an arbitration award and substitute its judgment for that of the arbitrator [, even if] it believes its interpretation would be the better one"*, citing Matter of United Fedn. of Teachers, Local 2, AFT, AFL—CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72.

Noting the ruling in Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, [cert.  dismissed 548 US 940], the Appellate Division said "It is well settled that judicial review of arbitration awards is extremely limited", although "CPLR 7511(b)(1)(iii) permits vacatur of an award where ... the arbitrator exceeds his or her power."

The Appellate Division then observed that the arbitrator exceeds his or her power where his or her award "violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power," citing Barone v Haskins, 193 AD3d 1388, appeal dismissed 37 NY3d 1032, lv denied 37 NY3d 919 [see Matter of New York City Tr. Auth. v Transport Workers' Union of Am., Local 100, AFL-CIO, 6 NY3d 332].

The Appellate Division opined that in the instant matter "the arbitrator merely interpreted and applied the provisions of the relevant collective bargaining agreement (CBA), as she had the authority to do," citing Lackawanna Professional Fire Fighters Assn., Local 3166, IAFF, AFL-CIO, 156 AD3d at 1408, and that the court was "powerless to set aside that interpretation even if we disagree with it...."

* The Appellate Division indicated that the plain language of the Collective Bargaining Agreement [CBA] supported the arbitrator's interpretation of the CBA.

Click HERE to access the Appellate Division's decision posted on the Internet.

Compelling disclosure of records pursuant the New York State's Freedom of Information Law

 

Matter of Puig v New York State Police

2023 NY Slip Op 00258

Decided on January 19, 2023

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered:January 19, 2023

534648

[*1]In the Matter of Kenneth Puig, Appellant,

v

New York State Police et al., Respondents.

Calendar Date:December 15, 2022
Before:Garry, P.J., Lynch, Aarons, Reynolds Fitzgerald and Ceresia, JJ.

Law Offices of Cory H. Morris, Melville (Cory H. Morris of counsel), for appellant.

Letitia James, Attorney General, Albany (Laura Etlinger of counsel), for respondents.

 

Ceresia, J.

Appeal from a judgment of the Supreme Court (Catherine E. Leahy Scott, J.), entered November 17, 2021 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent New York State Police denying petitioner's Freedom of Information Law request.

Following the repeal of Civil Rights Law § 50-a (see L 2020, ch 96, § 1) — which formerly shielded law enforcement personnel records from inspection or review without a court order— petitioner, an attorney, made a Freedom of Information Law (hereinafter FOIL) request for, among other things, copies of all disciplinary records of any state trooper who had been disciplined. Respondent New York State Police (hereinafter respondent) denied the request on the ground that it failed to reasonably describe the records sought and was exceedingly broad. Specifically, respondent stated that it had employed thousands of individuals throughout its history and noted that disciplinary records are maintained by individual employee, such that a search of every employee's file would constitute a monumental task. Petitioner sent respondent a letter administratively appealing this determination and, within that letter, modified his request, indicating that he was only seeking disciplinary records of active troopers assigned to the Counties of Orange, Dutchess and Ulster. In response to the administrative appeal, respondent affirmed the denial of the broader request but remitted the narrower, modified request to its Records Access Office for a determination. Upon remittal, that office denied petitioner's modified request on the basis that it still failed to reasonably describe the records sought, because respondent's employee files, in which disciplinary records are kept, cannot be searched by county of assignment. Petitioner administratively appealed, and respondent failed to rule on the appeal.

Petitioner thereafter commenced this CPLR article 78 proceeding to compel disclosure of the records sought in his modified request. Petitioner also sought an order directing respondent to undergo training regarding its legal obligations under FOIL, as well as an award of counsel fees and litigation costs. Following joinder of issue, Supreme Court dismissed the petition, finding that respondent had established a valid basis to deny the modified request — namely, that it was unable to search for and locate the records sought when described by county. The court also denied the additional requested relief. Petitioner appeals.^[FN1]

It is well settled that, "[u]nder FOIL, agency records are presumptively available for public inspection" (Matter of Empire Ch. of Associated Bldrs. and Contractors, Inc. v New York State Dept. of Transportation, ___ AD3d ___, ___, 2022 NY Slip Op 06852, *1 [3d Dept 2022] [internal quotation marks and citations omitted]). While Public Officers Law § 89 (3) (a) requires that the records sought be "reasonably described," an agency denying a FOIL request for lack of a reasonable description "bears the burden to establish that the descriptions were insufficient for purposes of locating and identifying the documents sought" (Matter of Jewish Press, Inc. v New York State Police, 207 AD3d 971, 974 [3d Dept 2022] [internal quotation marks and citations omitted]; see Matter of Konigsberg v Coughlin, 68 NY2d 245, 249 [1986]). With particular respect to records that are maintained electronically, the agency must show "that the descriptions provided are insufficient for purposes of extracting or retrieving the requested document[s] from the virtual files through an electronic word search . . . [by] name or other reasonable technological effort" (Matter of Pflaum v Grattan, 116 AD3d 1103, 1104 [3d Dept 2014]; see Matter of Reclaim the Records v New York State Dept. of Health, 185 AD3d 1268, 1269 [3d Dept 2020], lv denied 36 NY3d 910 [2021]).

As noted above, in denying petitioner's modified request, respondent indicated that it was not able to conduct a search of its disciplinary records based upon a trooper's county of assignment. Thus, respondent reasoned, it would be necessary to search "every employee's individual file[], a herculean task that is not required under FOIL." Respondent elaborated upon this reasoning in its answer to the petition by submitting the sworn affidavit of an attorney assigned to assist respondent with FOIL requests, who claimed that, although respondent has the ability to "track discipline electronically [going] back to 1999," respondent "does not file, maintain or index employee records by what county they work out of. To the extent that [respondent] is an agency that services the entire State of New York, there may be instances where [m]embers of [respondent] work across county lines or in multiple counties on the same day."

Notwithstanding this position, the parties acknowledge that the three counties at issue in petitioner's modified request are served by only two of respondent's 11 troops — Troop F and Troop K. Respondent concedes that troopers are generally assigned to work in a specific troop. Thus, given that the records sought by petitioner are confined to two identifiable troops, we find that the description in petitioner's modified request was reasonable and sufficiently detailed to enable respondent to locate and identify the requested records.

However, the question of whether a request contains a reasonable description is separate from consideration as to whether the request is unduly burdensome (see Matter of Jewish Press, Inc. v New York City Dept. of Educ., 183 AD3d 731, 733 [2d Dept 2020]; Matter of New York Comm. for Occupational Safety & Health v Bloomberg, 72 AD3d 153, 162 [1st Dept 2010]). While an agency may not "evade the broad disclosure provisions of FOIL by merely asserting that compliance could potentially require the review of [a large volume] of records" (Matter of Ruberti, Girvin & Ferlazzo v New York State Div. of State Police, 218 AD2d 494, 499 [3d Dept 1996]), we note that the record concerning this issue is not sufficiently developed, in that it does not demonstrate how many troopers' files would need to be searched or the particular manner in which such a search would be conducted. Accordingly, we remit the matter to Supreme Court for a determination as to whether it would be unduly burdensome for respondent to comply with petitioner's modified request (see Matter of Jewish Press, Inc. v New York City Dept. of Educ., 183 AD3d at 733; Matter of New York Comm. for Occupational Safety & Health v Bloomberg, 72 AD3d at 162). Upon remittal, the court shall also reconsider whether petitioner is entitled to counsel fees and costs (see Public Officers Law § 89 [4] [c] [ii]).

Garry, P.J., Lynch, Aarons and Reynolds Fitzgerald, JJ., concur.

ORDERED that the judgment is modified, on the law, without costs, by reversing so much thereof as denied petitioner's modified requests for records, counsel fees and costs; matter remitted to the Supreme Court for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.

Footnotes

Footnote 1: To the extent that petitioner now challenges the denial of his original request for all trooper disciplinary records statewide, that claim is unpreserved as it was not raised in the petition (see Matter of Urena v Mulligan, 201 AD3d 1215, 1218 [3d Dept 2022]; Marshall v City of Albany, 184 AD3d 1043, 1044 [3d Dept 2020]).

Concerning confirming or vacating an arbitration award

Noting that judicial review of arbitration awards is limited, the Appellate Division indicated an arbitration award would be vacated:

1. When the arbitrator's award is "so imperfectly executed ... that a final and definite award upon the subject matter submitted was not made"; or

2. When the arbitration award is indefinite or nonfinal for purposes of CPLR §7511 because:

            a. it does not dispose of a particular issue raised by the parties; or

            b. it leaves the parties unable to determine their rights and obligations; or

            c. it does not resolve the controversy submitted; or

            d. it creates a new controversy;

Citing Union-Endicott Cent. Sch. Dist. v Peters, 123 AD3d 1198; Matter of Rochester City School Dist. [Rochester Teachers Assn. NYSUT/AFT-AFL/CIO], 38 AD3d 1152, and Matter of Civil Serv. Empls. Assn. v County of Nassau, 305 AD2d 498, the Appellate Division explained that in this instance the arbitrator denied the contract grievance in full, resolving the stipulated issue of whether the County violated the collective bargaining agreement, and held "the Supreme Court properly confirmed the original arbitration award as it was not indefinite or nonfinal, and it completely disposed of the issue before the arbitrator."

Further, opined the Appellate Division, arbitrators are without power to render a new award or to modify an original award, except as provided in CPLR 7509" although an arbitrator may modify an award, inter alia,* where "the arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted."

*Among other things.

Click HERE to access the Appellate Division's decision posted on the Internet.

Follow-up on reports concerning school districts facing "fiscal stress"

New York State Comptroller Thomas P. DiNapoli reports school districts designated in fiscal stress dropped to record lows largely due to aid increase.

The Comptroller's office has been tracking local government and school district fiscal stress for nearly a decade through its Fiscal Stress Monitoring System and now reports that its finds that for fiscal year 2021-22 indicates only 14 school districts were designated in fiscal stress. This is the lowest number of districts in stress since the System’s inception.

Major increases in aid over the last two years from both the federal government (temporary) and the State (ongoing) have helped – particularly for many high-need districts that have struggled to avoid fiscal stress in recent years.

For more, see the Comptroller's: 

Report on Fiscal Year 2021-22 Results; and the

Lists of School Districts in Stress and all School District FSMS Scores.

Reports and fiscal stress scores for all counties, cities, towns and villages are available. For more information and for the Comptroller's most recent data, visit the Fiscal Stress Monitoring System main page.  

Characteristics of a hostile work environment for the purposes of litigating claims brought pursuant to 42 U.S.C. §1983

To prevail in a “hostile work environment” action brought pursuant to 42 U.S.C. §1983  the Plaintiff must set out claims alleging racial discrimination, retaliation, and a hostile work environment and demonstrate that his “workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment.”  

The Circuit Court Appeals, Second Circuit held that Plaintiff’s hostile work environment claim was based on the same conduct underpinning his racial discrimination and retaliation claims: his being given work orders to change light bulbs and, from time to time, receiving work orders for items not in need of repair. 

The Circuit Court explained that such "identified conduct falls far short of the conduct required to sustain a hostile work environment claim." The Circuit Court then affirmed the District Court’s grant of summary judgment dismissing Plaintiff’s complaint.

The District Court had dismissed Plaintiff's claims, in part, because Plaintiff failed to identify any adverse employment action. The Circuit Court, agreeing with the District Court that the Plaintiff failed to identify an adverse employment action, affirmed the lower court's ruling and opined that it "need not address any of the other grounds identified by the District Court as supporting summary judgment". 

Click HERE to access the Circuit Court's decision posted on the Internet.

Applying the Doctrine of Res Judicata

Federal district court dismissed Plaintiff's cause of action pursuant to the doctrine of res judicata. 

The U. S. Circuit Court of Appeals, Second Circuit, affirmed the lower court's ruling explaining “res judicata bars re-litigation of a claim if :

    (1) the previous action involved an adjudication on the merits; [and]

    (2) the previous action involved the same parties or those in privity with them; [and] 

    (3) the claims asserted in the subsequent action were, or could have been, raised in the prior action.”

In this instance the Plaintiff and the Defendants were parties in both this case and the prior litigation and the prior action was decided on the merits through a motion to dismiss. 

The Circuit Court also noted that Plaintiff's current claims against Defendants could have been brought in the earlier action if they were not and, accordingly, the District Court properly determined that the claims against Defendants were barred by res judicata. 

As to another claim advanced by Plaintiff, the Circuit Court observed that "defamation claims against the attorneys relating to their work in the prior lawsuit are precluded by the common law litigation privilege," citing Martirano v. Frost, 25 N.Y.2d 505. The court opined that "a courtroom statement is absolutely privileged unless it is 'so outrageously out of context as to permit one to conclude, from the mere fact that the statement was uttered, that it was motivated by no other desire than to defame'”. 

Click HERE to access the Circuit Court's decision.

Report by New York State Comptroller issued January 25, 2023 identifies school districts in fiscal stress

Fourteen school districts statewide were designated in some level of fiscal stress under State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System for the school year (SY) ending on June 30, 2022, down from 23 districts in fiscal stress the prior year. This is the lowest incidence of fiscal stress recorded for schools since the system’s inception in the 2012-13 school year.

“The number of districts designated in a fiscal stress category has fallen considerably over the past three years. This year there was a particularly steep drop because of significant increases in both federal and state aid,” DiNapoli said. “High need districts in urban and suburban areas, which typically have the highest incidence of fiscal stress, received some of the largest increases in aid. However, the federal aid is temporary so school district officials may face difficult operational and staffing decisions in determining how to best provide services to their students in the future.”  

The Comptroller’s Fiscal Stress Monitoring System was designed to identify issues that school districts, counties, cities, towns and villages are having with budgetary solvency, or the ability to generate enough revenues to meet expenses. The Comptroller releases fiscal stress scores for the various categories of government three times a year. School districts are given a fiscal stress score based on several factors: year-end fund balance, operating deficits and surpluses, cash position, and reliance on short-term debt for cash-flow. The higher the score the more severe the level of stress.

The monitoring system, which excludes New York City and the “Big Four” City School Districts of Buffalo, Rochester, Syracuse and Yonkers, found one school district in “significant fiscal stress,” which is the highest category - Mount Vernon City School District in Westchester County.

Five districts were designated as being in moderate fiscal stress. Only one of these, East Ramapo Central School District in Rockland County, saw a decrease in its stress score since last year. The remaining four – Arkport Central School District (Steuben County) Harrisville Central School District (Lewis County), New Suffolk Common School District (Suffolk County), and Roscoe Central School District (Sullivan County) – had score increases.

In response to the COVID-19 pandemic, the federal government passed three major multiyear grants of aid targeted to low-income school districts. In total, school districts included in FSMS reported receiving nearly $1 billion in temporary federal aid during SY 2021-22.

DiNapoli’s report also notes many school districts also saw a substantial increase in ongoing state aid. In State Fiscal Year 2021-22 Enacted Budget, the state committed to fully funding Foundation Aid for school districts by SY 2023-24. Total state aid reported by school districts (excluding New York City and the Big Four) increased from $13.8 billion in SY 2020-21 to $15 billion in SY 2021-22, an increase of $1.1 billion, or 8.5%.

Lists [Click on text set out in color to access the data.]

School Districts in Stress for Fiscal Year Ending 2022

Complete List of School District Fiscal Stress Scores

Report

Fiscal Stress Monitoring System: School Districts Fiscal Year 2012-22 Results

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Track state and local government spending at Open Book New York. Under State Comptroller DiNapoli’s open data initiative, search millions of state and local government financial records, track state contracts, and find commonly requested data.

Amending the New York State Assembly maps

The Appellate Division, First Department, affirming an order entered by Supreme Court Justice Laurence L. Love which, to the extent appealed from, ordered New York State's Independent Redistricting Commission (IRC):

1. Initiate the constitutional process for amending the New York State Assembly maps;

2. Conduct public hearings consistent with Article III, §4(c) of the New York State Constitution; 

3. Make plans, data and information available for the public to view at least 30 days prior to the first public meeting; and

4. Submit to the legislature an Assembly redistricting plan or plans and implementing legislation by April 28, 2023.

This plan would be voted upon by the legislature in a single bill.

Justice Love further ordered that should either house of the legislature failed to approve the implementing legislation, or if the Governor vetoed such legislation," the IRC would, within 15 days and in no case later than June 16, 2023, prepare a second redistricting plan and implementing legislation.

In the event either the legislature failed to approve the second plan and implementing legislation, or if the Governor vetoed it, then the legislature would introduce such implementing legislation with any amendments deemed necessary.

Click HERE to access the Appellate Division's decision posted on the Internet.