A final determination and the exhaustion of administrative remedies are typically essential to obtaining judicial review of the administrative determination

In Rosado-Ciriello, et al, [Plaintiffs] v Yonkers City School District, et al, [District], the Appellate Division considered a proceeding pursuant to CPLR Article 78 to review a determination of the District, and to compel the District to consider "telework" as a viable work accommodation for the Plaintiffs' members in the collective bargaining unit.

Supreme Court had granted the District's cross-motion, in effect denying the Plaintiffs petition and dismissed the proceeding. Plaintiffs appealed the Supreme Court's ruling.

The Appellate Division noted "a proceeding under [Article 78] shall not be used to challenge [an administrative] determination ... which is not final," explaining that an administrative determination must be final, and thus justiciable, i.e., ripe "for judicial review."

Quoting Matter of Village of Kiryas Joel v County of Orange, 181 AD3d at 685 [internal quotation marks omitted], the Appellate Division explained "[ripeness] is a justiciability doctrine designed to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties". Further, said the court, an administrative determination becomes "final and binding" when two requirements are met: "completeness (finality) of the determination and exhaustion of administrative remedies."

Finding that the alleged determination was not final and binding "because it did not inflict concrete harm" and further steps, including the submission of applications with supporting documents, were available to the Plaintiffs who were seeking the "telework accommodations," the Appellate Division held that Supreme Court "properly granted the [District's] cross-motion," in effect, denying the Plaintiffs' petition, and dismissing the Article 78 proceeding.

The exhaustion of administrative remedies rule, however, "is not inflexible and need not be followed where an agency's action is challenged as either unconstitutional or wholly beyond its grant of power" [see Watergate II Apartments v Buffalo Sewer, 46 NY2d 52] or where it is alleged that the administrative agency or process followed by the administrative agency violates the individual's constitutional rights to due process [see Levine v Board of Education, 173 A.D.2d 619]."

Further, as the decision in Walton v New York State Department of Correctional Servs., 25 AD3d 999, modified, 8 NY3d at 191, notes, "an individual is not required to exhaust the available administrative remedy where such action would constitute an exercise in futility." 

In deciding the point at which petitioner's administrative remedies are exhausted, "courts must take a pragmatic approach and, when it is plain that 'resort to an administrative remedy would be futile' ... an Article 78 proceeding should be held ripe, and the statute of limitations will begin to run."

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

 

New York State Public Personnel Law e-books

The Discipline Book - For information and access to a free excerpt of the material presented in this e-book, Click HERE.

A Reasonable Disciplinary Penalty - For information and access to a free excerpt of the material presented in this e-book, Click HERE .

The Layoff, Preferred List and Reinstatement Manual - for information and access to a free excerpt of the material presented in this e-book, Click HERE .

Disability Leave for fire, police and other public sector personnel - for information and access to a free excerpt of the material presented in this e-book, Click HERE .

 

Seeking a court order in the nature of mandamus to compel a public officer or agency to perform a specified act

Among the several ancient writs which haves survived through the eons is the Writ of Mandamus.* Mandamus is sought in an effort to compel a governmental entity or officer to perform a ministerial duty.

In contrast, the Writ cannot be used to compel an act that involve[s] an exercise of judgment or discretion on the part of the public officer or entity. Citing Matter of Mensch v Planning Bd. of the Vil. of Warwick, 189 AD3d 1245, the Appellate Division explained that a discretionary act involves the exercise of reasoned judgment which could typically produce different acceptable results whereas "a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result".

In this action the Appellate Division held that the Petitioners seeking a court order in the nature of mandamus "failed to establish that there existed a clear legal right to the relief sought." Rather, opined the court, Petitioners "sought to compel conduct involving the application of the discretion and judgment of the [Employer]."

Accordingly, the Appellate Division concluded that the remedy of mandamus was not available to the Petitioners.

* Other surviving ancient common law writs include the Writ of Prohibition, issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction"; the Writ of Injunction - a judicial order preventing a public official from performing an act; the Writ of Certiorari, compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the Writ of “Quo Warranto” [by what authority].

GOVTECH TODAY Newsletter item

On August 28, 2023 GOVTECH TODAY posted the item listed below on the Internet. Click on the text in color to access the report.

"Bringing live translation to public meetings".

 

From the Blogs: The Art of Filing an Appeal

Addresses the critical components of a compelling appeal, from gathering evidence to structuring your arguments. "Tips and best practices to make your appeal stand out." 

Posted on the Internet by the Law Firm of Kevin P. Sheerin, Esq.

 Continue Reading…

School bus transportation contractor sues for payment for contract services the school district claimed were not required for a four month period

We Transport, Inc. [Plaintiff] commenced this action against the Westbury Union Free School District [Westbury] seeking to recover damages for an alleged breach of contract.

Plaintiff, a school bus transportation contractor for Westbury, alleged Westbury breached a contract between the parties by refusing to pay for transportation services that the Plaintiff alleged it stood ready to provide during the months of March, April, May, and June of the 2020 but which services were neither required by the school district nor provided to it by Plaintiff.

Westbury moved to dismiss the complaint. Supreme Court denied Westbury's motion and Westbury appealed the court's ruling.

Citing Shah v Exxis, Inc., 138 AD3d 970, the Appellate Division explained that "[on] a motion pursuant to CPLR §3211(a)(7) to dismiss [an action] for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory".

The Appellate Division then ruled that Supreme Court should have granted that branch of the Westbury's motion to dismiss the cause of action alleging breach of contract, noting that the essential elements of a breach of contract cause of action are: [1] the existence of a contract; [2] the plaintiff's performance under the contract; [3] the defendant's breach of that contract; and [4] resulting damages.

The Appellate Division opined that to state a cause of action to recover damages for a breach of contract, the plaintiff's allegations must identify the provision of the contract that it contends was breached.

Finding Plaintiff's complaint "failed to specify the provision of the parties' contract that was allegedly breached" and no provision was identified that would permit the Plaintiff to recover payment from Westbury in exchange for "being available to provide transportation services", the Appellate Division reversed the Supreme Court's order "insofar as appealed from" and granted Westbury's motion pursuant to CPLR §3211(a)(7) to dismiss Plaintiff's complaint.

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

 

New York City's failure to pay for certain pre-shift and post-shift work it required certain of its employees to perform held a willful violation of the federal Fair Labor Standards Act

In Perry, et al, v The City of New York, et al, Docket No. 21-2095, decided August 25, 2023, the United States Court of Appeals for the Second Circuit, said:

"In this collective action, a group of 2,519 EMTs and paramedics allege that their employer, the City of New York, willfully violated the Fair Labor Standards Act by requiring them to perform work before and after their shifts without paying them for that work unless the plaintiffs specifically requested overtime compensation from the City.

"A jury agreed following a twelve-day trial, and the U.S. District Court for the Southern District of New York (Broderick, J.) entered a $17.78 million judgment against the City.

"The City now appeals, raising four arguments:

"(1) the jury’s liability verdict cannot stand because plaintiffs failed to request overtime pay for the work at issue;

"(2) the jury’s willfulness finding was not supported by the evidence;

"(3) due to an erroneous instruction, the jury failed to make a necessary factual finding regarding the calculation of damages; and

"(4) the district court incorrectly forbade the jury from considering whether one component of the plaintiffs’ post-shift work was de minimis and therefore non-compensable.

'The City accordingly asks that we reverse the jury’s verdict or remand for a new trial on damages."

The Second Circuit declined to do so and instead affirmed the district court's decision "in toto."

Click HERE to access the text of the Second Circuit's decision posted on the Internet.

 

 

Attorneys invited to consider a career in public service with the State of New York

The New York State Department of Civil Service invites attorneys to consider a career in public service with the State of New York.

For information about current employment opportunities click HERE.

Municipal and school audits released by the New York State Comptroller

On August 24, 2023, New York State Comptroller Thomas P. DiNapoli announced the following local government and school audits were issued.

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

 

Town of Homer: Non-Payroll Disbursements (Cortland County)

The board and supervisor did not provide adequate oversight of non-payroll disbursements. As a result, the town made duplicate payments totaling $79,806, and has an increased risk that errors or irregularities could occur and remain undetected and uncorrected. Auditors found the board and supervisor did not, as required,  segregate duties or implement compensating controls relating to non-payroll disbursements; did not, as required, establish procedures to detect and prevent duplicate payments from occurring; or did not, as required, conduct or ensure an annual audit of the supervisor’s records and reports was performed.

 

Chatham Central School District – Financial Management (Columbia County)

The board and district officials did not properly manage fund balance and reserves. The board and district officials’ consistent practice of appropriating fund balance that is not needed and maintaining unreasonable reserve balances circumvents the statutory limit on surplus fund balance and lacks transparency. The district annually appropriated over $1.3 million of fund balance they did not need or use to finance operations; therefore, taxpayers were taxed more than necessary. The district, on average, annually over-estimated appropriations by $3.2 million (9.9%) and maintained four reserves totaling $6.6 million without demonstrating they were reasonably funded.

 

Blind Brook-Rye Union Free School District – Capital Project Change Orders (Westchester County)

The board and district officials did not ensure that all project change orders were submitted as required to the State Education Department (SED) for approval. As a result, officials created a risk that SED could reduce the district’s building aid reimbursement for all unapproved work. For the 151 change orders reviewed totaling about $3.8 million: 122 (81%) totaling approximately $2.7 million were not submitted to SED, as required. In addition, six change orders totaling $155,173 were approved by the commissioner for only $74,002 and the assistant superintendent was not aware that they were approved and had no explanation for the difference in the amount received.

 

Village of Port Dickinson – Capital Asset Accountability (Broome County)

Village officials did not properly record and account for all capital assets. As a result, the village has an increased risk its assets could be lost, stolen or misused without detection. The board did not adopt a written capital asset policy or conduct periodic inventories and officials did not maintain a complete and current capital asset list. Auditors were unable to definitively locate 32 of 35 assets reviewed to the village’s asset list because the asset, purchase invoice and asset list did not contain specific identifying information.

 

Village of East Syracuse – Board Oversight of Cash Receipts and Disbursements (Onondaga County)

The board did not adequately monitor cash receipts and disbursements. Due to the lack of oversight and compensating controls, there is an increased risk that errors and irregularities could occur and remain undetected and uncorrected. The treasurer performed nearly all aspects of the cash receipts and disbursements processes, and the board did not establish controls to help ensure cash was safeguarded. The board did not review, or designate anyone to review, bank statements and canceled check images, bank reconciliations and bank transfers, or compare receipts with deposits to help ensure cash was accounted for and records were accurate. The board also did not ensure village officials reviewed and certified all payroll payments to provide assurance employees received accurate pay. In addition, the treasurer paid 49 claims totaling $258,182 without the board’s audit and approval.

 

Ulster Board of Cooperative Educational Services: Network User Accounts (Ulster County)

Officials did not adequately manage and monitor network user accounts to help prevent unauthorized use, access, or loss. In addition to sensitive information technology control weaknesses that were communicated confidentially to officials, auditors found that officials did not disable 17 unneeded network user accounts or review and did not disable 76 potentially unneeded user accounts.

 

Town of Sempronius – Real Property Tax Exemptions Administration (Cayuga County)

The assessor did not properly administer all of the real property tax exemptions reviewed and did not ensure applicants provided documentation required to grant an exemption or maintain the documentation. Auditors reviewed 58 exemptions totaling $2.7 million and found that 32 exemptions (55%) totaling $1.4 million lacked one or more pieces of documentation needed to verify eligibility and the assessor’s exemption calculation. Because each exemption impacts the tax roll, a miscalculated or inappropriately granted exemption can cause inequity among taxpayers.

 

Hamlin Morton Walker Fire District – Financial Management (Monroe County)

The board and officials did not effectively manage fund balance. From 2020 through 2022, restricted fund balance declined by $676,641 (66%). As of Dec. 31, 2022, unrestricted fund balance was $34,092, which was less than 4% of the 2023 appropriations. The board underestimated expenditures by nearly $1.5 million (45%) and underestimated revenues by $215,772 (8%) for 2020 through 2022. The district also did not have a written multiyear financial plan or adequate capital plan, which inhibits the board and officials from effectively managing finances and addressing future operating and capital needs.

 

Social Media Changes Are Impacting Government Messaging

Government agencies are working to conform to a changing social media landscape these days, with Twitter’s rebranding to X — among other things — presenting challenges.

Click HERE to access the text of Government Technology's report posted on the Internet.

Essentials in judicial review of an employee administrative disciplinary action

In a proceeding pursuant to CPLR Article 78 to review a determination of the Town terminating the plaintiff [Employee] based on the findings and recommendation of a disciplinary hearing officer, Supreme Court [a] denied the Town's motion to dismiss the Employee petition; [b] granted Employee's petition to the extent of annulling the penalty imposed; and [c] remitting the matter to the Town for the imposition of a less severe penalty.

The Town appealed the Supreme Court's decision.

The Appellate Division:

[1.] Confirmed the Town's disciplinary determination; 

[2.] Denied the Employee's petition; 

[3.] Granted the Town's motion to dismiss the Employee's petition; and 

[4.] Dismissed the proceeding "on the merits".

The Appellate Division explained:

1. "In an [administrative] employee disciplinary case, judicial review of factual findings made after a hearing pursuant to Civil Service Law §75 is limited to consideration of whether that determination was supported by substantial evidence";

2. "Substantial evidence is related to the charge or controversy and involves a weighing of the quality and quantity of the proof; the term means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact";

3. "When there is conflicting evidence or different inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the administrative agency"; and

4. Employee's petition raised the issue of whether the Town's determination was supported by substantial evidence, and the parties did not raise, nor did the Supreme Court address, any objection that could have terminated the proceeding within the meaning of CPLR 7804(g), the Supreme Court should have transferred the proceeding to this Court without disposing of the substantial evidence issue.

The Appellate Division opined that contrary to the Employee's contention, the record before the hearing officer contained substantial evidence to sustain the findings of misconduct and, citing Matter of Haug v State Univ. of N.Y. at Potsdam, 32 NY3d at 1046, and, contrary to the Employee's assertion, noted that "hearsay statements ... were admissible" in a Civil Service Law §75 administrative disciplinary action.

Further, said the court, "Judicial review of an administrative penalty is limited to whether the measure or mode of penalty or discipline imposed constitutes an abuse of discretion as a matter of law" and "An administrative penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law" (see Matter of Bolt v New York City Dept. of Educ., 30 NY3d 1065).

In the words of the Appellate Division: "The penalty of termination of employment imposed upon [Employee under the circumstances] did not shock one's sense of fairness," particularly considering that the incident triggering the disciplinary action was not the first time that Employee was disciplined "for engaging in such behavior."

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

========

A Reasonable Disciplinary Penalty Under the Circumstances - a 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Click http://booklocker.com/books/7401.html for more information. 

 

Seeking the production of certain governmental agency records pursuant to a New York States "Freedom of Information Law" request

New York State's Freedom of Information Law [FOIL] is applicable to a governmental  "agency" but FOIL's definition of "agency" expressly excludes the records of the "judiciary" and thus such records are not within the ambit of FOIL.

In Lockwood v County of Suffolk the Appellate Division addressed whether certain Suffolk County agency records that were sought pursuant to a FOIL request were exempt from disclosure under color of being "judicial records".

Finding that Supreme Court had not determine whether those "certain records" were "judicial records", Suffolk County was directed to produce those records for an in camera inspection by Supreme Court and the matter was remitted to Supreme Court for a new determination of that branch of Lockwood's petition based upon the results Supreme Court's in camera inspection.

The full text of the Appellate Division's decision in Lockwood is set out below.

 

Matter of Lockwood v County of Suffolk

2023 NY Slip Op 04316

Decided on August 16, 2023

Appellate Division, Second 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 on August 16, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
ANGELA G. IANNACCI, J.P.
CHERYL E. CHAMBERS
DEBORAH A. DOWLING
HELEN VOUTSINAS, JJ.

2021-02862
(Index No. 607383/20)  

[*1]In the Matter of Scott Lockwood, appellant,

v

County of Suffolk, et al., respondents.

Scott Lockwood, Deer Park, NY, appellant pro se.

Dennis Brown, Acting County Attorney, Hauppauge, NY (Lisa Azzato of counsel), for respondents.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to compel the production of certain records pursuant to the Freedom of Information Law (Public Officers Law art 6), the petitioner appeals from a judgment of the Supreme Court, Suffolk County (David T. Reilly, J.), dated March 22, 2021. The judgment denied the petition and dismissed the proceeding.

ORDERED that the judgment is modified, on the law, by deleting the provision thereof denying that branch of the petition which was to compel the production of records pertaining to the training of clerks of the Suffolk County Traffic and Parking Violations Agency, and substituting therefor a provision granting that branch of the petition to the extent that the respondents are directed to produce those records for an in camera inspection by the Supreme Court, Suffolk County; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for a new determination of that branch of the petition based upon the in camera inspection.

The petitioner submitted a request to the Suffolk County Traffic and Parking Violations Agency (hereinafter the TPVA) pursuant to the Freedom of Information Law (Public Officers Law art 6; hereinafter FOIL) for the production of two categories of records held by the TPVA: materials pertaining to determinations by the Clerk of the TPVA to reject or accept motions submitted to the agency; and training materials for TPVA clerks. The TPVA denied the request, stating that it did not possess any materials pertaining to the first category of records sought, and that with respect to the second category, its training materials for clerks fell within Public Officers Law § 87(2)(g), exempting certain intra-agency materials from disclosure. After his request was denied, the petitioner pursued an administrative appeal. The appeals officer declined to order the production of records held by the TPVA on the ground that the TPVA is part of the judiciary and, thus, its records are not the records of an "agency" as defined in Public Officers Law § 86(3). Alternatively, the appeals officer concluded that the TPVA did not possess responsive records. The petitioner then commenced this proceeding pursuant to CPLR article 78 to compel the production of the requested records. The Supreme Court denied the petition and dismissed the proceeding. The petitioner appeals.

"In order to promote open government and public accountability, FOIL imposes a broad duty on government to make its records available to the public" (Matter of Tuckahoe Common Sch. Dist. v Town of Southampton, 179 AD3d 929, 930). "To this end, FOIL provides that all records of a public agency are presumptively open to public inspection and copying unless otherwise specifically exempted" (Matter of Law Offs. of Cory H. Morris v County of Nassau, 158 AD3d 630, 631; see Public Officers Law § 87[2]). Exemptions are construed "narrowly, and an agency has the burden of demonstrating that an exemption applies 'by articulating a particularized and specific justification for denying access'" (Matter of Kosmider v Whitney, 34 NY3d 48, 54, quoting Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 566; see Matter of Abdur-Rashid v New York City Police Dept., 31 NY3d 217, 225).

FOIL is applicable to "agency" records, but its definition of "agency" expressly excludes the "judiciary" (Public Officers Law § 86[3]). "The TPVA is a 'hybrid agency that exercises both prosecutorial and adjudicatory responsibilities,' and [ ] the prosecutorial function is 'distinct from the adjudicatory function'" (Matter of Law Offs. of Cory H. Morris v County of Nassau, 158 AD3d at 632, quoting Matter of Dolce v Nassau County Traffic & Parking Violations Agency, 7 NY3d 492, 498). "Accordingly, to the extent that a TPVA record concerns the nonadjudicatory responsibilities of the TPVA, it is not exempt from disclosure under the definition of 'agency' in Public Officers Law § 86(3)" (Matter of Law Offs. of Cory H. Morris v County of Nassau, 158 AD3d at 632).

Here, the Supreme Court properly determined that the first category of records sought related to the TPVA's adjudicatory responsibilities. In any event, the TPVA established that it possessed no such materials (see Matter of Jewish Press, Inc. v New York City Dept. of Corr., 200 AD3d 1038, 1039-1040).

However, with respect to the second category, without examination of the records that the petitioner seeks, the Supreme Court could not determine that the training materials requested were exempt from disclosure as records of the "judiciary" (see Matter of Law Offs. of Frank DeSousa v Nassau County, 171 AD3d 925, 926; Matter of Law Offs. of Cory H. Morris v County of Nassau, 158 AD3d at 632). Similarly, examination of those records was required to determine whether they were exempt intra-agency materials. To the extent that intra-agency materials contain "instructions to staff that affect the public," they remain subject to disclosure pursuant to FOIL (Public Officers Law § 87[2][g]; see Matter of Gedan v Town of Mamaroneck [N.Y.], 170 AD3d 833, 834-835; see generally Matter of Xerox Corp. v Town of Webster, 65 NY2d 131, 133).

Accordingly, we modify the judgment so as to grant that branch of the petition which was to compel the production of records pertaining to the training of TPVA clerks to the extent of directing the TPVA to produce those records for an in camera inspection by the Supreme Court, Suffolk County, and remit the matter to the Supreme Court, Suffolk County, for a new determination of that branch of the petition based upon the in camera inspection.

IANNACCI, J.P., CHAMBERS, DOWLING and VOUTSINAS, JJ., concur.

ENTER:

Darrell M. Joseph

Acting Clerk of the Court