Where statements in an affidavit are contradicted by official records concerning an event, the official records trump the statements in the affidavit

The Board of Trustees [Board] denied a Plaintiff's application for accidental disability retirement [ADR] benefits pursuant to the World Trade Center [WTC] Disability Law, Administrative Code of City of NY §13-252.1 based on its finding that the official New York Police Department [NYPD] records showed that Petitioner was not working at a WTC-qualifying site during the first 48 hours after the November 11, 2001, attack on the World Trade Center or for 40 hours any time during the qualifying time period.

Plaintiff appealed the Board's decision. Supreme Court, however, dismissed Plaintiff's CPLR Article 78 proceeding seeking to annul the Board's determination. The Supreme Court's ruling was unanimously affirmed by the Appellate Division.

The Appellate Division's decision notes that official NYPD records showed that Plaintiff worked at various nonqualifying locations in New York City during the relevant time period. The court explained that the Board "was entitled to discount [Plaintiff's] affidavit concerning his presence at WTC-qualifying locations, since the averments in that affidavit were contradicted by NYPD records, including roll call records that [Plaintiff] signed."  

In addition, the Appellate Division's decision indicates:

[1] Plaintiff's "affidavit was at odds with the WTC Notice of Participation form that [Plaintiff] completed with respect to his activities on 9/11; and

[2] "The Board was entitled to reject affidavits from [Plaintiff's] family and friends on the grounds that they were conclusory, insufficiently specific, or not based on the affiants' personal knowledge."

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

 

Accidental Disability Retirement benefits are awardable only where the individual's disability was the natural and proximate result of a service-related accident

Supreme Court granted the petition brought a New York City firefighter [Firefighter]  pursuant to CPLR Article 78 to annul the determination of Board of Trustees of the New York City Fire Department, Subchapter II Fire Pension Fund [Fund] rejecting a Firefighter's application for accidental disability retirement [ADR] benefits and for attorneys' fees. Fund appealed Supreme Court's ruling and the Appellate Division unanimously reversed the lower court's decision "on the law, without costs," and dismissed the proceeding brought pursuant to CPLR Article 78.

In the words of the Appellate Division, "ADR benefits are awardable only where the individual's disability was the natural and proximate result of a service-related accident, i.e., "a 'sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact'", citing Matter of Brown v Kelly, 100 AD3d 480, quoting Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of NY, Art. II, 57 NY2d 1010, 1012.

The Appellate Division explained "[Firefighter's] injury was the result of an incidental — not accidental — event," referencing Matter of Kelly v DiNapoli, 30 NY3d 674, because Firefighter's injury was sustained while Firefighter was performing routine duties, not as a result of an unexpected event as the dehydration suffered by Firefighter while running in hot weather in heavy gear was a foreseeable risk of the firefighting training exercise.

Further, citing Matter of A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, the Appellate Division observed Supreme Court should not have awarded Firefighter attorneys' fees as there was "no basis for the award absent an agreement, statute, or court rule providing for [such] relief".

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

***

Disability Benefits for New York State and municipal public sector personnel - an e-book focusing on administering the Retirement and Social Security Law, the General Municipal Law Sections 207-a/207-c and similar laws providing disability benefits to employees of the State of New York and its political subdivisions. For more information and access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/3916.html

 

Vacating an arbitration award pursuant to CPLR §7511

The Employer sought to terminate an Employee based on his arrest, criminal conviction, and the nature of the charges.

The collective bargaining agreement between the Employer and the Employee's collective bargaining representative [Union], provided arbitration is mandatory when the Employer seeks to discipline or terminate any employee. The Arbitrator was to decide whether the Employer had just cause for disciplining the employee and, if so, whether termination was the appropriate penalty.

The Arbitrator found that the Employer [1] had just cause to discipline Employee; [2] the Employee's actions created "adverse criticism" for the Employer; and [3] based on compelling mitigating factors, the appropriate penalty was a time-served suspension without pay rather than termination.

The Employer moved to vacate the award pursuant to CPLR 7511. The Union opposed the Employer's motion.

Noting that arbitration is highly favored in New York, Supreme Court, citing Falzone v NY Central Mutual Fire Insurance Company, 15 NY3d 530 and Goldfinger v Lisker, 68 NY2d 225, said although "courts seldomly disturb arbitration awards even if the courts would have reached a different conclusion ... [an] arbitration award, however, may be vacated upon a judicial finding that the rights of one of the parties was prejudiced by one of three reasons, the partiality of the arbitrator; or by corruption, fraud, or misconduct on the part of the arbitrator; or by a finding that the arbitrator exceeded her or his powers."

Observing that in Goldfinger the Court of Appeals expressly held that "precisely because arbitration awards are subject to such judicial deference, it is imperative that the integrity of the process, as opposed to the correctness of the individual decision, be zealously safeguarded", Supreme Court opined that although Arbitrator prepared a thorough 14-page Opinion and Award, "the Opinion part lacks neutrality."

In the words of the court, "The Arbitrator crossed the thin and often difficult line between a compassionate neutral and an advocate for one side, the employee. The Arbitrator mistakenly believed that his role was to render a decision that aided and supported the employee's re-integration into the community rather than fairly and objectively decide an employer-employee dispute. In doing so, the Arbitrator prejudiced the [Employer's] right to a fair and impartial arbitration process."

Supreme Court then vacated the award on the ground of partiality pursuant to CPLR 7511(b)1.[ii] and, in compliance with the applicable terms of the collective bargaining agreement, ordered the matter remitted "expeditiously to arbitration with another arbitrator."

* The employee plead guilty to the crime of attempted endangering the welfare of a child.

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

 

Selected links to items focusing on government operations posted on the Internet during the week ending November 3, 2023

Accelerating Traffic Safety Analysis

Biden Signs Executive Order Regulating Artificial Intelligence President Joe Biden is directing the government to take a sweeping approach to artificial intelligence regulation, his most significant action yet to rein in an emerging technology that has sparked concern and acclaim. READ MORE

Cyber Teams, Criminals Are Looking for Wins With Generative AI Companies are embracing cyber defenses based on generative AI hoping to outpace attackers’ use of tools like FraudGPT, the “villain avatar of ChatGPT.” But more effort is needed, experts warn. READ MORE

Digitizing Disbursements: The Next Step in Modernizing Government Transactions

Education Safety Summit Tackles Cybersecurity, Social Media The National Summit on K-12 School Safety and Security highlighted free cybersecurity resources for schools and explored how adults can work with children to address the mental health impacts of social media. READ MORE

Embracing Intelligent Automation

Federal Government Offers Cybersecurity Toolkit for Health Sector CISA and partners announced a toolkit bringing together advice and other resources to help health care and public health organizations improve their cyber postures. READ MORE

High-Velocity IT Service Management for Government

How Are State and Local Governments Navigating AI Regulation? President Joe Biden signed an executive order to regulate artificial intelligence, but how are state and local governments handling it? Many are exploring how AI can enhance services, while others are temporarily banning its use. READ MORE

Keeping Up With State and Local AI Policies and Guidelines Regulations around generative AI are rapidly evolving. This list will keep you up to date on what governments are doing to increase employee productivity and improve constituent services while minimizing risk. READ MORE

Learn How Public Sector IT Leaders are Closing Cyber Risk Gaps Created by Visibility Silos The mission: reduce the exposure of critical public infrastructure and services to cyberattacks. The roadblock: too many tools, yet not enough insight. The solution? Tanium. EXPLORE THE SOLUTION

Leveraging Identity: A Public Sector Guide for External Services

OMB Offers Draft AI Implementation Guidance for Comment New draft policy from the U.S. Office of Management and Budget aims to offer guidance for AI governance structures that will help agencies to implement and apply AI technologies in a responsible way. READ MORE

Personalizing Constituent Journeys: Measuring Digital Government Experiences 

Securing America's Digital Infrastructure We round up industry best practices on topics such as security, threats, and privacy. See how companies are helping state and local agencies tackle and prepare for all things cybersecurity.

The Public Sector Guide to Generative AI 

Tyler's New AI Acquisition Focuses on Government Field Work The gov tech giant has bought ARInspect, which sells an AI-backed platform for inspections of bridges, utilities and other public-sector assets and facilities. The move marks Tyler’s second AI buy in recent months. READ MORE

Vital U.S. Partnerships With Canada on All Things Cyber At the InCyber Forum North America, held this past week in Montréal, Canada, the importance of maintaining meaningful global partners in cybersecurity was never more evident. READ MORE

Website Redesign Tool Kit

What Artificial Intelligence Can Do for Public Works and Transportation

 

Evaluating an application for accidental disability retirement

Petitioner, a police officer, applied for accidental disability retirement benefits claiming that she was permanently incapacitated from performing her job duties due to injuries sustained in three incidents while "on the job".

At the hearing Petitioner conceded in her post hearing brief that the one incident, Incident #1, did not constitute an accident.* 

The Hearing Officer then found that the other two incidents reported did not constitute accidents within the meaning of the Retirement and Social Security Law. The Comptroller affirmed the Hearing Officer's determinations and Petitioner initiated a CPLR Article 78 proceeding challenging the Comptroller's decision.

The Appellate Division sustained the Comptroller's ruling, explaining:

1. The applicant for accidental disability retirement bears the burden of establishing that the disability arose from an accident within the meaning of the Retirement and Social Security Law;

2. The Comptroller's determination will be sustained if supported by substantial evidence, citing  Matter of McDermott v Gardner, 215 AD3d 1206];

3. For purposes of the Retirement and Social Security Law, an accident is defined as "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact"; and

4. An injury that results from "the performance of ordinary employment duties and is a risk inherent in such job duties" is not considered accidental, noting the Appellate Division's decision in Matter of Walsh v DiNapoli, 214 AD3d 1282.

Referencing Matter of Bodenmiller v DiNapoli, 215 AD3d 96, the Appellate Division opined: "precipitating events that arise out of a risk inherent in the petitioner's ordinary job duties, i.e., the work performed ... can never be considered accidents because, by definition, they are not unexpected and therefore cannot be the basis for an accidental disability pension ...". 

* During the administrative hearing Petitioner's had counsel conceded that Incident #1 was not an accident and did not cause Petitioner's permanent disabilities but subsequently  retreated from that concession. In her post administrative hearing brief Petitioner argued that Incident #1 was, indeed, an accident. The Hearing Officer found that the concession that Incident #1 was not an accident apparently was a mistake and proceeded to rule on the issue, affirmatively finding that Incident #1 was not an accident. Under the circumstances, the Appellate Division said given "the confusion" and the fact that Petitioner raised the issue concerning Incident #1 in her petition, and in her appeal brief, it elected to address Incident #1 "on the merits".

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

 

 ===============

Disability benefits for New York State and municipal employees

An e-book focusing on administering the Retirement and Social Security Law, General Municipal Law Sections 207-a/207-c and similar laws providing disability benefits to employees of the State of New York and its political subdivisions. 

For more information and access to a free excerpt of the material presented in this NYPPL e-book, click on http://booklocker.com/books/3916.html.

 

 

 

 

Former Morley Fire Volunteer Company treasurer pleads guilty to stealing over $16,000

On November 2, 2023, New York State Comptroller Thomas P. DiNapoli announced a  former treasurer of the Morley Volunteer Fire Co., Cindi Perkins, pleaded guilty to grand larceny in the fourth degree for stealing over $16,000 from the company over a three-year period.

DiNapoli said “Ms. Perkins was entrusted with money meant to protect her community. Instead, she betrayed the fire company and her neighbors by enriching herself.” Noting that combating fraud and protecting taxpayer money is a priority of his, the Comptroller thanked "St. Lawrence County District Attorney Gary Pasqua and the New York State Police for partnering with [his] office to bring her to justice.”

Perkins, who worked for the fire company from 2016 to 2019, made unauthorized cash withdrawals, failed to deposit fire company funds, made unauthorized purchases, and wrote unauthorized checks to herself. The monies were a combination of payments from the Town of Canton and the Morley Fire District, as well as fundraising dollars.

Investigators found the 58-year-old Perkins, who controlled all aspects of the fire company’s finances, made more than $16,000 in personal cash deposits soon after similar cash amounts were paid to the Morley Volunteer Fire Co.

Bank records also showed ATM withdraws made from the Morley Volunteer Fire Company accounts at the Del Lago Resort and Casino and the Turning Stone Resort Casino.

Perkins used the stolen money for personal purchases including groceries, makeup, and other retail consumer items, investigators found.

Perkins, of Canton, pleaded guilty in St. Lawrence County Court. She is due back in court for sentencing on Jan. 3, 2024.

In another case of alleged "Jobbery" -- Mirriam-Webster defines jobbery as "the improper use of public office or conduct of public business for private gain" -- State Comptroller DiNapoli, Steuben County District Attorney Baker and the New York State Police announced the arrest of a former Village of Addison official for an alleged theft of more than $1.1 million. Click HERE for details.

 ###

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.

 

New York City and New York State Human Rights Law complaints are generally analyzed under less demanding standard than are federal discrimination claims

Supreme Court's rejection of Defendants' [City Respondents] motion to dismiss Plaintiff's causes of action alleging discrimination and retaliation under the New York City Human Rights Law [City HRL] and New York State Human Rights Law [State HRL]; her aiding and abetting claims; and her claims under the Gender-Motivated Violence Act [GMVA]* was unanimously affirmed by the Appellate Division, without costs.

The Appellate Division held that dismissal of Plaintiff's federal discrimination claims at the pleading stage "does not preclude Plaintiff's City and State Human Rights Laws claims based on principles of collateral estoppel." 

In addition, the court noted that "employment discrimination claims brought under the City and State HRLs are generally analyzed under a more lenient notice pleading standard than federal discrimination claims and need only give a Defendant "fair notice" of the nature and grounds of Plaintiff's claims."

On a "motion to dismiss" a court a must accept allegations which evidence at least some gender-based animus as true. In this instance the Appellate Division found:

1. Plaintiff sufficiently pleaded her claims of discrimination and hostile work environment under the State and City HRLs by alleging she received more intense scrutiny and was excluded from meetings that her male, non-Black peer was invited to join;

2. Plaintiff had sufficiently pleaded her retaliation claim, as the complaint alleges, and therefore provides City Respondents with fair notice of City Respondents' alleged retaliatory conduct following Plaintiff's protected actions of filing various complaints and retaining counsel in response to City Respondents' allegedly discriminatory acts; and

3. Plaintiff sufficiently stated a claim under the GVMA as she alleged she had been physically harmed her by being struck by another individual and that individual had directed animus against another Black female employee in the past.

The Court said it must accept these allegations, which evidence at least some gender-based animus, as true on a motion to dismiss (Sassi v Mobile Life Support Servs., Inc., 37 NY3d 236, 241 [2021]).

* Administrative Code of City of NY § 8-903.

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

Request for exemption from the New York City Department of Education's COVID-19 vaccination requirement denied

The New York City Reasonable Accommodation Appeals Panel [Panel] denied an Educator's request for a religious exemption from the COVID-19 vaccination requirement for employees of the New York City Department of Education [DOE]. Supreme Court dismissed Educator's CPLR Article 78 petition appealing the Panel's decision, which ruling was unanimously affirmed by the Appellate Division, without costs.

The Appellate Division opined that the denial of Educator's request for a religious exemption and reasonable accommodations for her job as a school teacher was not arbitrary and capricious, noting DOE's argument that "allowing [Educator] to teach remotely while the DOE was resuming in-person instruction, would impose an undue hardship on the [DOE]".

The DOE's "Position Statement" explained that accommodating Educator would result in her being unable to perform her essential functions as a schoolteacher and given that more than 3,300 DOE employees had requested religious exemptions, "granting an exemption to the employees would impose on the DOE significant costs and operational difficulties associated with creating alternative assignments for the exempted employees, and retaining and hiring additional staff to perform the exempted employees' essential job functions". This, said the Appellate Division, "was a rational basis for the denial of [Educator's] request."

Addressing a procedural matter, the Appellate Division observing the fact DOE's Position Statement was "unsigned and undated hearsay", said "[h]earsay evidence can be the basis for an administrative determination", citing Matter of Gray v Adduci, 73 NY2d 741, and "this Court need not limit our review to the language in the Citywide Panel's decision, as the Panel noted that it had reviewed the DOE's determination as well as the documentation submitted to the agency, and that it based its decision on that review."

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

N.B. A decision by the United States Circuit Court of Appeals, Second Circuit, Candice D'Cunha v Northwell Health Systems, [23-476-cv], addresses alleged violations of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Americans with Disabilities Act of 1990 (“ADA”) when Northwell refused to accommodate D'Cunha's requests for a COVID-19 vaccine exemption and terminated her employment. Click HERE to access the D'Cunha decision posted on the Internet.

 

 

Civil Rights Law §50-a as amended by Chapter 96, Laws of 2020 held to apply to law enforcement officer personnel records retroactively

As is relevant here, former Civil Rights Law §50-a provided, with limited exceptions, that "[a]ll personnel records [of law enforcement officers] used to evaluate performance toward continued employment or promotion ... shall be considered confidential and not subject to inspection or review" (see Matter of New York Civ. Liberties Union v New York City Police Dept., 32 NY3d 556).

The legislature repealed Civil Rights Law §50-a [see Chapter 96, Laws of 2020] and made several related amendments to the State's Freedom of Information Law [FOIL], providing that such changes "shall take effect immediately".

In the words of the Appellate Division, "repeal of Civil Rights Law §50-a ... reflected a strong legislative policy promoting transparency of police disciplinary records and eliminated any claim of confidentiality in them" (see People v Castellanos, 72 Misc 3d 371)).

The Appellate Division then held that "the repeal of Civil Rights Law §50-a applies retroactively to records created prior to June 12, 2020", citing Schenectady Police Benevolent Assn. v City of Schenectady, 2020 WL 7978093; 2020 NY Slip Op 34346[U].

In the words of the Appellate Division, while "the legislature made no express statement in the repeal itself, or in the limited legislative history concerning the same, as to whether the repeal was to be applied retroactively [the amendments] "went into effect immediately and, by its plain reading and intent, applies to records then existing and not simply to records created at a time subsequent to the enactment of the legislation."

Citing Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, the court said "While the characterization of a statute as remedial is not dispositive, as a general matter, "remedial legislation should be given retroactive effect in order to effectuate its beneficial purpose".

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

 

Regulating the risks of artificial intelligence

CNN reports the White House rolled out a sweeping executive order on October 30, 2032 "that aims to monitor and regulate the risks of artificial intelligence while also harnessing its potential."

Click HERE to access the CNN article posted on the Internet.

Attendance and Leave Policy Bulletins posted on Internet on October 30, 2023 by the New York State Department of Civil Service

The New York State Department of Civil Service has published the following Attendance and Leave Policy Bulletins:

• Policy Bulletin 2023-04, Rights of Employees to Express Breast Milk in the Workplace
• Policy Bulletin 2023-05, Implementation of the Productivity Enhancement Program for 2024

If you wish to print these bulletins a version in PDF format is posted at:

https://www.cs.ny.gov/attendance_leave/PB2023-04.pdf

https://www.cs.ny.gov/attendance_leave/PEP2024Combined.pdf

To view previous Attendance and Leave bulletins issued by the Department of Civil Service, visit: https://www.cs.ny.gov/attendance_leave/index.cfm

OATH Administrative Law Judge recommended the appointing authority terminate an employee found guilty of assaulting a co-worker

New York City Office of Administrative Trials and Hearings Administrative Law Judge [ALJ] Julia H. Lee recommended the termination of the employment of an administrative manager [Respondent] the ALJ found guilty of disciplinary charges that alleged Respondent had assaulted a co-worker [Co-worker] by striking him on the head with a metal pipe.

Co-worker did not testify at the trial* but the Appointing Authority [Employer] presented the testimony of six employees who "heard a commotion and arrived on scene" and witnessed the interaction between Respondent and Co-worker.

The failure of Co-worker to testify triggered the Respondent's asking the ALJ to apply the sanction of "adverse inference"** based on Employer’s failure to call Co-worker as a witness. 

Judge Lee opined that "An adverse/negative inference based on a missing witness may be appropriate where the moving party has laid a foundation that the witness has knowledge about a material issue, that he would naturally be expected to give testimony favorable to the party who failed to call him, and that the witness is available to that party," citing Comm’n on Human Rights ex rel. Brehshiek Marquez v. Fresh & Co., OATH Index No. 434/22 at 24-25.

Considering the particular facts of this case and the ALJ's credibility determinations with respect to the testimony of the Respondent and the testimony of the Employer’s witnesses, Judge Lee:

[1] Declined to draw an adverse inference as the result of Co-worker’s refusal to testify at the disciplinary hearing or the Employer’s failure to call Co-worker as a witness, noting "The factfinder’s drawing of an adverse inference is permissive, not required", citing People v. Gonzalez, 68 N.Y.2d at 431, and LLC v. Ward, 276 A.D.2d 277, 278; and 

[2] Did not credit the Respondent’s testimony that Co-worker had struck her first.

Judge Lee, duly noting Respondent's employment by the agency for 36 years, concluded that the gravity of the "violent conduct" of Respondent which resulted in the instant disciplinary action, and that Respondent had been involved in "four prior incidents of disruptive behavior", warranted termination and recommended that the penalty of dismissal be imposed on Respondent by the Employer.

 * The disciplinary hearing was conducted via WebEx videoconference.

 ** The "adverse inference" sanction is based on the theory that if a litigant fails to present certain known evidence or testimony, such evidence or testimony would not be helpful, or might even be harmful, to the litigant. In Varriale v City of New York, 148 AD3d 650, the Appellate Division opined the failure of a defendant in an administrative disciplinary procedure to testify concerning an event permits a disciplinary hearing officer to draw the strongest inference against the defendant permitted by the record.

Click HERE to access Judge Lee's findings and recommendation posted on the Internet.

 * * *

A Reasonable Disciplinary Penalty Under the Circumstances. NYPPL's public personnel law handbook focusing on determining an appropriate disciplinary penalty to be imposed on an officer or an employee in the public service of the State of New York and its political subdivisions in instances where the individual has been found guilty of misconduct or incompetence. For more information and access to a free excerpt of the material presented in this e-book, click HERE.