Selected links to items focusing on government operations posted on the Internet during the week ending December 1, 2023

A Shrinking Labor Force Isn’t Entirely Bad News Tight labor markets can be hard on corporations. But they can help marginal workers find jobs. READ MORE

 

Anne Arundel Makes Free Transportation More Accessible Last fall, the county’s ridership averaged around 18,000 a month; now, it’s nearly at 30,000 monthly riders. The Call N’ Ride program use, which offers free transit, has increased 222 percent over the last year. READ MORE

 

Building Resilience in State and Local Government IT As we turn toward the new year, the Center for Digital Government looks at what it takes to survive and thrive as a gov tech leader in even the most challenging of circumstances. READ MORE

 

Building Trust in the Exponential Age — ICYMI Zencity CEO and co-founder Eyal Feder-Levy discusses the evolving ways in which government leaders can make informed, transparent and effective decisions to earn the trust of the communities they serve. READ MORE

 

California AI Report Tempers Benefits With Potential Risks The Newsom administration's new examination of generative artificial intelligence tools in state government identified significant areas of potential risk, including privacy, security and several others. READ MORE

 

California Report Offers Glimpse at AI Use in State Government How might California government make use of generative artificial intelligence? Officials suggest several ways that the technology could be introduced to state government functions. READ MORE

 

California Weighs Pros and Cons of AI in Government A new report analyzes how artificial technology could be used in stage government without risking data privacy, misinformation, equity or bias. Gov. Gavin Newsom called the report an important first step. READ MORE

 

Chicago Mayor’s Budget Relies 15% More on Fines and Fees Brandon Johnson had previously critiqued how the city has used a tax structure that relies on property taxes, fines and fees, and yet his 2024 proposed budget counts on $46 million more in fines and fees than this year. READ MORE

 

Citizen Cyber Brigades Held Promise — Have They Delivered? Amid struggles to fill open cybersecurity positions, some states have looked toward volunteer citizen brigades trained to respond when smaller jurisdictions need help. Experts consider whether the benefits outweigh the risks. READ MORE

 

Climate Report Highlights Illinois’ Environmental Equity Issues The fifth National Climate Assessment found that the Midwest region faces threats caused by rising temperatures, drought and extreme precipitation. Since 1980, the region has incurred over $49 billion in economic damage due to flooding. READ MORE

 

Demand for Downtown Seattle Office Space Declines: A Bad Sign Interest in leasing new office space was at just 21 percent of pre-pandemic levels for the third quarter of 2023. However, there was a slight increase in tenants looking for mid-sized office space. READ MORE

 

Democratic Groups Embrace 'Freedom' for Their Policy Frameworks Democrats at the local, state and federal levels are all using freedom as a catchall, believing the value helps promote their various policy ideas. READ MORE

 

Despite Less Driving, Traffic Deaths Still Increasing Fatalities increased 18 percent from 2019 to 2022, despite the fact that the overall number of miles traveled decreased by 3 percent. Policymakers are trying to find ways to curb speeding and reckless driving. READ MORE

 

Do States Need Digital Accessibility Coordinators? A new brief from the National Association of State Chief Information Officers underlines the importance of and reason for having a position dedicated to statewide digital accessibility coordination. READ MORE

 

FCC Proposes Cybersecurity Pilot for Libraries, K-12 Schools The Federal Communications Commission's $200 million initiative would help income-eligible districts and libraries identify what data protection measures are needed and provide discounted cybersecurity tools. READ MORE

 

Feds Issue Warning on Ransomware Group Targeting Public Sector The FBI and CISA, along with the MS-ISAC, issued a joint advisory explaining Rhysida ransomware actors’ known tactics, techniques and procedures and indicators of compromise — and ways to better defend. READ MORE

 

Florida Considers How to Cool Prisons Ahead of Next Summer Over three-quarters, or more than 500 dorms, of state-run correctional housing units don’t have air conditioning, but proposed legislation would make it a requirement to provide some cool air to the units by July 1. READ MORE

 

Houston’s Transportation Leaders Are Becoming More Diverse As the city approaches a population of 8 million, transportation leaders will need to find ways to improve movement across the region before the growth becomes unsustainable. Leaders with more diverse backgrounds may help with the solution. READ MORE

How Green Does a City Need to Be? One scholar thinks we have carried our penchant for urban tree-worship a bit too far, giving nature too much credit for city-dwellers’ mental health. READ MORE

 

How Important Is Surveillance Tech on Public Transit? As a major California public transit agency grapples with ongoing public safety, funding and ridership challenges — the same issues many transit agencies are facing — its use of surveillance technology is evolving. READ MORE

 

How Popular Are Generative AI Apps? In the past year, ChatGPT has become one of the fastest growing online services ever. But how popular are the generative AI apps? A recent study reveals the data behind the growth. READ MORE

 

Huber Heights, Ohio, Suffers Ransomware Attack on Systems A weekend morning ransomware attack on Huber Heights, Ohio, is affecting systems like finance, utilities and human resources. The city expects the disruption to last through the week. READ MORE

 

I Oversaw Border Protection. Chicago and NYC Are Doing What They Can to Ease the Migrant Crisis There are no easy solutions to America’s growing immigration challenges, but Chicago Mayor Brandon Johnson and New York Mayor Eric Adams should be recognized for the decisive action they have taken. READ MORE

 

Iowa Offers Schools Free EDR, 24-Hour Monitoring Services The state Department of Management Division of Information Technology will provide K-12 schools with 16 months of endpoint detection and response services, including 24-hour monitoring and incident response. READ MORE

 

Is California’s Transitional Kindergarten Worth the Costs? The state has pledged billions of dollars to its pre-kindergarten program, which will be available to 4-year-olds for free, but has no plans to formally evaluate its benefits. Many are wondering: Is the program effective? READ MORE

 

Long Beach Restores Some Services Equipped With Emergency Powers Long Beach, Calif., continues to grapple with a Nov. 14 network security incident. It declared a local emergency on Nov. 17 and on Nov. 22 announced the restoration of a few services. READ MORE

 

Long Beach, Calif., Mulls Emergency Declaration Over Cyber Incident The City Council will meet at noon today to decide whether to ratify the city manager’s push for emergency powers to help the city respond to a cyber incident that struck its systems Tuesday. READ MORE

 

Michigan Deploys ZeroEyes Gun Detection at State Capitol This marks the first ZeroEyes deployment in a state capitol building. The company, whose tools work with security cameras, recently raised $23 million and hopes to sell more often to public agencies, along with schools. READ MORE

 

Michigan Establishes Energy Storage Standard, First in Midwest Once the legislative package gets signed into law, the state will have plans for at least 2,500 megawatts of energy storage and all state-regulated utilities will need to submit storage plans to the Public Service Commission by 2030. READ MORE

 

Modernizing the Transportation Workforce The U.S. government is spending hundreds of billions of dollars to modernize the nation’s transportation infrastructure, making it safer and more sustainable. But making the best use of modern digital technologies requires a properly trained transportation workforce. DOWNLOAD NOW

 

Most of LAPD Body Cam Footage Goes Unseen. Can AI Help? Los Angeles spends millions on body cameras to help provide transparency and accountability, but most of the footage never gets seen. Now department leaders are wondering if artificial intelligence can help solve the issue. READ MORE

 

New Jersey Unveils AI Policy to Guide Use by State Employees The state of New Jersey now has a new policy to guide the use of generative AI by state employees; this closely follows the state’s creation of the Artificial Intelligence Task Force last month. READ MORE

 

New Jersey Will Transition to All Electric New Car Sales by 2035 Transportation emissions accounted for 35 percent of greenhouse gas emissions in the state, the most of any sector. The Advanced Clean Cars II mandate will require 51 percent of new car sales to be electric in 2027. READ MORE

 

New Massachusetts Commission Aims to Improve Policing The Peace Officer Standards and Training Commission is able to examine the conduct of officers and issue discipline, regardless of whether or not they are found at fault by their peers. The discipline can be anything from retraining to decertification. READ MORE

 

New Report Examines Pressing K-12 Cybersecurity Concerns Schools faced off against ransomware, banking Trojans, cryptominers and other threats, while citing limited cyber funding. This year, more schools struggled with threat detection and incident response management. READ MORE

 

New York State Library is preparing to hold a digital equity roundtable, a report details the lack of Internet at rural Pennsylvania schools, and more. READ MORE

 

No, Criminal Justice Reform Isn’t Driving Rising Crime States around the country are enacting common-sense, bipartisan reforms that will help break the cycle of poverty, crime and incarceration, making our system fairer and our communities safer. READ MORE

 

Ohio Supreme Court Upholds New Redistricting Maps The 4-3 ruling approved the new state House and Senate maps and will enact them through 2030, dismissing lawsuits that claimed the new maps were illegally gerrymandered. READ MORE

 

One Transit Fan Takes on Miami Metrorail’s Lack of Transparency What started as a simple question, “when will Metrorail riders on evenings and weekends be spared the longer waits for train arrivals,” has turned into a 5,757-page journey of emails and attachments, all without an answer. READ MORE

 

Outgoing Colorado CIO Shares Progress in Digital Services, Culture As outgoing Colorado CIO Anthony Neal-Graves reflects on his achievements during his time with the state, he welcomes David Edinger into the role to continue to build on advances in digital government. READ MORE

 

PayIt Hires Accela Vet Tom Nieto as President and COO PayIt sells payments, licensing and outdoor permitting tech, and recently raised $90 million. Nieto talks about how the company intends to grow in 2024, and what his experience helping to lead Accela taught him. READ MORE

 

Pennsylvania House Approves Bill for Striking Worker Pay The measure would grant unemployment benefits to striking workers by amending existing state law. Republicans oppose the measure, making the bill’s future in the GOP-controlled Senate uncertain.
READ MORE

 

Ransomware Impacts Health-Care Systems in Six States The affected health-care systems were hit by the cyber attack on Thanksgiving Day, and they were forced to divert ambulances in the aftermath, according to officials with Ardent Health Services. READ MORE

 

S.F. Closes Fake COVID Testing Sites That Offered Cash City officials have successfully shut down the lime-green tents that were advertising “Free COVID Testing” and were offering $5 cash to individuals in exchange for personal information and test samples. READ MORE

 

States Enact Measures to Protect Residents from Extreme Heat The summer of 2023 was the hottest on record globally as was the 12-month period ending Oct. 31. Nationally, 1,784 people have died from heat-related causes so far this year, almost double the amount in 2018. READ MORE

 

Texas Drops More Than 810,000 Children from Its Medicaid Rolls Since the end of the pandemic-era continuous Medicaid renewals, 1.4 million Texans have been dropped from the federal health insurance program and 58 percent of them have been children. READ MORE

 

The Culture of Policing Needs to Change, and It Can
The warrior mentality is perpetuated from generation to generation. An ex-cop’s thoughtful new book suggests pathways for reform. READ MORE

 

U.S. DOT Boosts Digital Construction in 10 States with $34M Grant According to the Federal Highway Administration, the grant funding, allocated under the Bipartisan Infrastructure Law, aims to propel digital construction tools such as computer modeling and 3D design in 10 state DOTs. READ MORE

 

What Cyber Response Can Learn from Traditional Disasters Government has battle-tested playbooks for dealing with hurricanes, tornadoes and wildfires. As cyber emergencies become both more common and more devastating, what can cyber responders learn from physical emergency response? READ MORE

 

Wisconsin Fills Vacant Chief Information Security Position Wisconsin’s Division of Enterprise Technology has a new senior leader in Troy Stairwalt. He brings more than 25 years of experience in the private sector to the chief information security officer role. READ MORE

 

Wisconsin’s Volunteer Cyber Team Explodes in Membership The volunteer group can assemble a response team seven minutes after a request for help — usually from a small city, county or school district. The number of participants has grown alongside the number of attacks. READ MORE

 

With Homelessness Surging, Mayors Share Possible Solutions One of the hallmarks of effective homeless response is coordinated effort. Mayors met in Los Angeles, the nation's homeless capital, to figure out how they can work together to reduce the entrenched problem. READ MORE

 

Workplace EV Charging Support Services Coming Online Both CALSTART and Forth Mobility have put forward resources to help businesses navigate the new terrain for installing electric vehicle chargers to serve their workforce. READ MORE

 

Recent decisions by Administrative Law Judges posted on the Internet by New York City's Office of Administrative Trials and Hearings

Accommodating a disability

OATH Administrative Law Judge Christine Stecura recommended an agency engage with its employee in a cooperative dialogue to discuss potential accommodations for the employee’s disability.

In a Civil Service Law Section 72 proceeding regarding the employee’s fitness to perform her duties, Judge Stecura found the agency established that the employee has a disability which rendered her unfit to perform her duties when working physically in the office.

The ALJ found the employee had requested a reasonable accommodation to work from home and the agency failed to engage in a cooperative dialogue with her to determine if her disability could be reasonably accommodated by employee working at home.

The ALJ also found the agency failed to establish that it had probable cause to place the employee on one of two emergency leaves and recommended restoration of salary or leave balance to the employee for that period of emergency leave.

Click HERE to access Judge Stecura's findings and recommendations posted on the Internet.

 

Inability to perform the duties of the position

OATH Administrative Law Judge Julia Davis recommended dismissal of disciplinary charges filed against an employee she found suffered a disability that resulted in frequent outbursts at work, interfered with her ability to interact with colleagues and supervisors, prevented her from completing the training required for her position, and resulted in other disruptive behavior at work. 

Judge Davis indicated that disciplinary penalties cannot be imposed "if the alleged acts of misconduct were caused by a disability."

Finding the employee has neither acknowledged her issues nor sought help and there is no present possibility that her medical condition will improve, the ALJ recommended placing the employee on an involuntary leave of absence as the employee’s disability renders her "unable to perform the functions of her job".

Click HERE to access Judge Davis' findings and recommendations posted on the Internet.

Woman pleads guilty to stealing her deceased grandmother’s state pension payments

On November 30, 2023, a 55-year-old Buffalo woman pleaded guilty to stealing more than $54,715 in state pension payments meant for her deceased grandmother. Comptroller Thomas P. DiNapoli and Erie County District Attorney John J. Flynn announced "the defendant, Bernadette Russell, was convicted of grand larceny,"

“Bernadette Russell schemed to hide her grandmother’s death in order to steal from the state retirement system,” DiNapoli said. “Thanks to the work of my investigative team and the Erie County District Attorney’s Office, her crime was exposed, and she has been held accountable. My office will continue to vigorously root out attempts to defraud the state pension system and its members.”

“By defrauding the state retirement system, this defendant stole from the taxpayers of New York. I want to thank the New York State Comptroller’s Office for their work on this case and their partnership with our office. Together, we will continue to investigate fraudulent activity and hold any offenders accountable,” said Erie County District Attorney John J. Flynn.

Russell’s grandmother, Lorraine Stenclik, retired in 1985 from the City of Buffalo and was receiving a pension via direct deposit into her bank account. She passed away in October 2019 and her pension payments should have stopped then. However, her family did not notify the state retirement system of her death, and the system did not learn she was deceased until July 2022, at which time it stopped payments.    

The investigation of Russell began after the Comptroller’s Office received a phone call from someone purporting to be Lorraine Stenclik, asking why she had not received her July 2022 pension payment. The call came from a phone number that was registered to Russell.

There were 33 monthly pension deposits totaling $54,715 into Stenclik’s bank account after she died. Investigators determined numerous ATM withdrawals were made with Stenclik’s debit card in the years since. They also found payments from Stenclik’s bank account to one of Russell’s utility accounts.

Russell pleaded guilty in Erie County Court before Judge Paul Wojtaszek. Her sentencing is scheduled for Feb. 8, 2024.

###

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 investigations@osc.ny.gov, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

Hearsay evidence can be the basis for an administrative determination

The Appellate Division unanimously affirmed, without costs, a ruling by Supreme Court which denied the Plaintiff's petition to annul a determination of the City of New York Reasonable Accommodation Appeals Panel [Citywide Panel] denying [1] Plaintiff's  request for a reasonable accommodation from the New York City Board of Education's [DOE] COVID-19 vaccine mandate, [2] Plaintiff's motion for limited discovery, and [3] dismissed the proceeding brought pursuant to CPLR Article 78.

The court said the Citywide Panel's finding — that the DOE demonstrated that granting petitioner an accommodation of masking, testing, and social distancing, or alternatively teaching remotely, when the DOE was returning to in-person instruction, would impose an undue hardship — was not arbitrary and capricious or made in violation of lawful procedure.

Opining that it "need not limit [its] review to the language in the Citywide Panel's decision, as the Panel noted that it had 'carefully reviewed (the DOE's) determination' as well as 'all of the documentation submitted to the agency,' and that it had based its decision on that review", the Appellate Division found "The DOE's Position Statement explained in detail why granting the accommodation would create an undue hardship for the DOE, in conformity with the factors listed in the New York City Human Rights Law (City HRL) including 'identifiable cost of the accommodation' due to, among other things, 'retaining or hiring employees or transferring employees ... in relation to the size and operating cost of the employer,' and '(t)he number of individuals who will need the particular accommodation'," citing the "Administrative Code of City of NY §8-107(3)(b).

Noting Matter of Gray v Adduci, 73 NY2d 741, and other decisions, the Appellate Division explained the fact that the Position Statement was unsigned and undated, or amounted to hearsay, was of no moment, as "(h)earsay evidence can be the basis for an administrative determination".

Citing the decision in Matter of Marsteller, 217 AD3d 543, the Appellate Division said "(t)he affirmation of Eric J. Eichenholtz, Chief Assistant Corporation Counsel for Employment Policy and Litigation, who served as a final reviewer for Citywide Panel determinations," was appropriately considered by Supreme Court, as "there was no administrative hearing" and the affirmation "explain(ed) the information that was before the agency," including it noting that the DOE Position Statement was submitted to the Citywide Panel and was relied upon for the final appeal determination.

In addition, the Appellate Division noted DOE employees were informed how to apply for religious accommodations and appeal denials and Plaintiff "availed h(er)self of this process, (DOE) explained why h(er) application did not qualify for an accommodation [and the] parties further engaged in the administrative appeals process," and DOE "submitted evidence" that it received over 3,300 religious accommodation requests that needed to be "resolve(d) under a constrained timeline during an evolving public health emergency".

As Plaintiff "[had] not established that, under these circumstances, the City HRL required a more robust or individualized dialogue than the process (s)he received", the Appellate Division opined that Supreme Court properly denied Plaintiff's motion seeking leave for limited discovery in this special proceeding, as she failed to show "ample need" or "unusual circumstances".

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

 

Court finds the "heart presumption" set out in the Retirement and Social Security Law was "successfully rebutted" by the Retirement System

Petitioner, a correction officer, suffered a heart attack in 2007 and was diagnosed with and treated for high blood pressure. Petitioner returned to work in 2008, voluntarily joining a unit tasked with returning parole absconders to the counties of their convictions. In February 2017, Petitioner, complaining of fatigue and edema, sought treatment from a cardiologist, who diagnosed petitioner with coronary artery disease, heart failure and high blood pressure. Approximately one month later, Petitioner sought further treatment after experiencing chest pains and shortness of breath while at work, and he did not thereafter return to work.

Petitioner applied for performance of duty disability retirement benefits in September 2017, contending he was permanently incapacitated from the performance of his duties as the result of a heart condition. Although Petitioner was found to be permanently incapacitated, his application for benefits was denied upon the ground that his disability was not sustained as a result of the performance or discharge of his duties.

Following a hearing and redetermination, the Hearing Officer upheld the denial, finding that Petitioner's heart disease was not caused by his employment. The State Comptroller adopted the Hearing Officer's findings of fact and conclusions of law, and Petitioner commenced this CPLR Article 78 proceeding challenging the Comptroller's determination.

The Appellate Division affirmed the Comptroller's determination, noting that the New York State and Local Employees' Retirement System concedes that Petitioner is permanently incapacitated from the performance of his duties as a correction officer as a result of his heart condition and, further, that the "heart presumption"*  embodied in Retirement and Social Security Law §507-b(c) applies. However, said the court, citing  Matter of Park v DiNapoli, 123 AD3d 1392; Matter of Walters v DiNapoli, 82 AD3d 1487; and Matter of Rivera v DiNapoli, 78 AD3d 1295, "the issue distills to whether the Retirement System successfully rebutted the heart presumption, which, in turn, required the Retirement System to demonstrate -- through expert medical proof -- that Petitioner's cardiac condition was caused by risk factors other than his employment".

The Retirement System's medical expert [Expert] reviewed Petitioner's job description, together with numerous medical records, test reports and office notes, and conducted a physical examination of Petitioner in January 2018. After examining Petitioner, Expert diagnosed Petitioner with "nonobstructive coronary artery disease, very mild congestive heart failure and diabetes (not well controlled)". According to Expert, diabetes is "a major risk factor" for, among other things, heart attack and coronary artery disease; Petitioner's "additional risk factors for coronary artery disease included hypertension, dyslipidemia, obesity and a sedentary lifestyle."

In the words of the Appellate Division, "Although Expert agreed that Petitioner was permanently incapacitated from the performance of his duties as a correction officer as a result of his cardiovascular disease, Expert was adamant that Petitioner's correctional officer duties were not the cause of such disease, stating that '(c)oronary artery disease is not occupation specific.' Rather, Expert opined, there are 'well-defined risk factors for coronary artery disease,' including the various risk factors previously attributed to Petitioner. With respect to work-related stress, Expert acknowledged that stress could be a contributing factor to, for example, Petitioner's high blood pressure, but he made clear that stress was neither a recognized risk factor for developing coronary artery disease nor a cause of coronary artery disease or hypertension in the first instance (see Matter of Walters v DiNapoli, 82 AD3d at 1488). Expert further opined that the identified risk factors could not be viewed in isolation, i.e., no one individual risk factor may be said to have caused [Petitioner's] coronary artery disease; rather, such disease was the 'collective' effect of the recognized risk factors identified in Expert's report.

The Appellate Division said Expert's testimony, in its view, was sufficient to exclude Petitioner's employment as a causative factor in the development of his disabling coronary artery disease and, as such, the statutory presumption was effectively rebutted. Further, opined the court, "The testimony offered by Petitioner's treating cardiologist, which the Comptroller was free to reject ... does not warrant a contrary result, as such testimony -- at best -- establishes that stress "appears to" or may "possibl(y)" have some effect upon the development or progression of coronary artery disease. The decision then notes that Petitioner's remaining arguments on this point, to the extent not specifically addressed, had been examined and found to be "lacking in merit" by the Appellate Division.

* RSSL §507-b(c) provides as follows: c. Notwithstanding any provision of this chapter or of any general or special law to the contrary, any condition of impairment of health caused by diseases of the heart, resulting in disability or death to a member covered by this section, presently employed and who shall have sustained such disability while so employed, who successfully passed a physical examination on entry into service as a correction officer or security hospital treatment assistant, which examination failed to disclose evidence of any disease or other impairment of the heart, shall be presumptive evidence that it was incurred in the performance and discharge of duty, unless the contrary be proved by competent evidence.

Click HERE to access the Appellate Divisions decision posted on the Internet.

 

Absent action by the State Legislature, New York State's statewide policy in favor of collective bargaining in the public sector controls

The collective bargaining agreements [CBA] in place between the City of Rochester and the Rochester Police Locust Club, Inc. [Locust Club], the union representing police officers in the City since the 1980's, had governed the procedure for disciplining police officers. In 2019, the Council of the City of Rochester adopted, the Mayor of the City of Rochester signed, and voters approved via referendum, Local Law No. 2, which created the Police Accountability Board [PAB], a body of nine City residents whose powers included the exclusive authority to "investigate and make determinations respecting" any police officer accused of misconduct.*

The PAB's authority included the power to conduct a hearing on the alleged misconduct and to impose disciplinary sanctions, up to and including dismissal, if the officer were found guilty. The City's police chief was free to impose additional punishment upon that officer, but was obliged at a minimum to implement the sanction determined by the PAB.

There is no dispute that the disciplinary procedures set forth in Local Law No. 2 deviated in significant respects from the agreed-upon procedures set forth in the CBA then in effect and that they were not agreed to by the Locust Club. The Locust Club and others commenced this combined CPLR Article 78 proceeding and declaratory judgment action to challenge Local Law No. 2 and, in particular, its transfer of police disciplinary authority to the PAB. 

Supreme Court ultimately granted the petition in part and held, among other things, that Local Law No. 2 was invalid to the extent that it transferred that authority to another entity. The City Council appealed the Supreme Court's ruling; Appellate Division affirmed the Supreme Court's decision. (196 AD3d 74 [4th Dept 2021]).

The Appellate Division held that the City was obliged to negotiate with the Locust Club on the issue of police discipline because in 1985 the City had repealed the provision of its charter vesting a local official in charge of the police force with unilateral authority over police discipline and that the City's effort to revive that authority in Local Law No. 2 necessarily failed under the Municipal Home Rule Law because it was inconsistent with a general law, "the Taylor Law's mandate of collective bargaining for police discipline" (196 AD3d at 84). The court granted the City Council's motion for leave to appeal and now affirm.**

Noting that this case was the latest of a series in which the Court of Appeals has addressed the issue of when police disciplinary procedures are subject to collective bargaining, the Court said:

1."In 1958, the Legislature enacted Civil Service Law §§75 and 76 to specify "the procedures for disciplining public employees, including police officers, . . . [and] provide for a hearing and an appeal" (See Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Public Empl. Relations Bd., 6 NY3d 563.

2. "[A]lthough Civil Service Law §§75 and 76 generally govern police disciplinary procedures, preexisting laws that expressly provide for control of police discipline were 'grandfathered' under Civil Service Law §76 (4), which provides that nothing in sections 75 and 76 'shall be construed to repeal or modify any general, special or local' laws or charters" (See Matter of City of Schenectady v New York State Pub. Empl. Relations Bd., 30 NY3d 109, 114 [2017], quoting Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc., 6 NY3d at 573).

3. "Thereafter, the Taylor Law was enacted in 1967 to enshrine 'the "strong and sweeping" public policy in favor of collective bargaining in this state' and require good faith bargaining between recognized employee organizations and public employers over the terms and conditions of employment (See Matter of City of Long Beach v New York State Pub. Empl. Relations Bd., 39 NY3d 17, 22 [2022], quoting Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73, 78 [2000]; see Civil Service Law § 200 et seq., as added by L 1967, ch 392; Matter of City of Schenectady, 30 NY3d at 114).

4. "Although the disciplinary procedures set forth in Civil Service Law §§ 75 and 76 predate the Taylor Law, [the Court of Appeals] previously 'held that the policy of the Taylor Law prevails, and collective bargaining is required [for disciplinary procedures], where no legislation specifically commits police discipline to the discretion of local officials' (See Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc., 6 NY3d at 571; see Matter of Auburn Police Local 195, Council 82, Am. Fedn. of State, County & Mun. Empls., AFL-CIO v Helsby, 62 AD2d 12 [3d Dept 1978], affd [for reasons stated in] 46 NY2d 1034 [1979]).

5. "[The Court of Appeals'] prior decisions have also addressed the situation where a law grandfathered under Civil Service Law §76(4) gives rise to a conflict 'between the strong and sweeping policy of the State to support collective bargaining under the Taylor Law and a competing policy . . . favoring strong disciplinary authority for those in charge of police forces' (See Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc., 6 NY3d at 571 [internal quotation marks and citation omitted]; see Matter of City of Schenectady, 30 NY3d at 114; Matter of Town of Wallkill v Civil Service Empls. Assn., Inc. [Local 1000, AFSCME, AFL-CIO, Town of Wallkill Police Dept. Unit, Orange County Local 836], 19 NY3d 1066, 1069 [2012]). 

6. The Court of Appeals said it had "resolved that tension by holding that the specific goal of strong disciplinary authority for the leader of a police force prevails over the general one of supporting collective bargaining" and that, where "legislation specifically commit[ting] police discipline to the discretion of local officials . . . is in force, the policy favoring control over the police prevails, and collective bargaining over disciplinary matters is prohibited" (citing Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc., 6 NY3d at 571-572; see Matter of City of Schenectady, 30 NY3d at 115; Matter of Town of Wallkill, 19 NY3d at 1069).

7. In the words of the Court of Appeals, "To put it simply, 'some [municipalities] have the right to bargain about police discipline, and some do not' (Matter of City of Schenectady, 30 NY3d at 118), and the difference depends upon whether there is applicable legislation 'specifically commit[ting] police discipline to the discretion of local officials . . . in force' (See Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc., 6 NY3d at 571-575)."

Applying those principles in the instant matter, the Court of Appeals observed that the parties are in agreement that §330 of the 1907 City Charter constituted prior legislation committing police discipline to the discretion of the City official in charge of the police force which was grandfathered under Civil Service Law §76(4). The provision would have prohibited collective bargaining over police disciplinary procedures had it remained "in force" (See Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc., 6 NY3d at 572).

That said, the Court explained the "Municipal Home Rule Law expressly vests the City with the power to "revise and amend its charter by local laws that are not inconsistent with the constitution or general law" (Matter of St. Lawrence County v City of Ogdensburg, 40 NY3d 121, 126 [2023]; see Municipal Home Rule Law §10[1][ii][c] [1]), as well as the power to "adopt and amend local laws not inconsistent with the provisions of the constitution or not inconsistent with any general law relating to its property, affairs or government" (Municipal Home Rule Law §10[1][i])."

It was further established that the City could exercise that power in a way that surrendered authority granted to it under the 1907 City Charter and, indeed, as the City itself pointed out, a referendum was required to approve Local Law No. 2 of 2019 precisely because that law "[a]bolishe[d], transfer[red] or curtail[ed]" the charter power of the Mayor to appoint and remove all members of boards (Municipal Home Rule Law §23[2][f]).

As to the City Council's suggestion that it did not intend for the 1985 law to require the City to collectively bargain police discipline but, even accepting that its intent is relevant in view of the plain text of the law itself, there is no evidence in the record to support that claim. In any event, by 1985 the case law was clearly established that police discipline was a proper subject of collective bargaining where the procedures of Civil Service Law §§ 75 and 76 applied, and the City Council certainly should have been aware of that fact (see Matter of Town of Greenburgh [Police Assn. of Town of Greenburgh], 94 AD2d 771, 771-772 [2d Dept 1983], lv denied 60 NY2d 551 [1983]; Matter of Auburn Police Local 195, 62 AD2d at 17).

The High Court said "It follows that, upon the enactment of Local Law No. 2 of 1985, there was no longer a conflicting charter provision in force that 'specifically commit[ted] police discipline to the discretion of local officials'; therefore, 'the policy of the Taylor Law prevail[ed], and collective bargaining [was] require' on the issue of police discipline (Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc., 6 NY3d at 571)."

Further, the Court of Appeals opined, "The [State] Legislature may therefore act to articulate a public policy that would prevail over the "strong and sweeping" one favoring collective bargaining that it has already adopted in the Taylor Law (id. at 78 [internal quotation marks omitted]) and, if it does so, this Court will enforce that policy just as stringently as we have the one set forth in the Taylor Law. Absent such action by the [State] Legislature, however, the statewide policy in favor of collective bargaining must control."

A majority of the Court of Appeals affirmed the Appellate Division's decision, insofar as appealed from, with costs.

 * The PAB's authority included the power to conduct a hearing on the alleged misconduct and to impose disciplinary sanctions, up to and including dismissal, if the officer were found guilty.

** Chief Judge Wilson dissented in an opinion in which Judges Rivera and Halligan concur. Judge Troutman took no part.

Click HERE to access the Court of Appeals' majority decision and Chief Judge Wilson's dissent.

 

Determining if a lump sum payment to a member of a New York State public retirement system is includable in calculating a member of the retirement system's final average salary

Petitioner was employed as a police officer for the Village pursuant to a series of collective bargaining agreements [CBA] and employment contracts negotiated by the Police Benevolent Association [PBA] from 1989 until his retirement on March 30, 2019, when he began to collect his pension.

In April 5, 2021, Petitioner received a final determination by New York State and Local Employees Retirement System advising him that three $25,000 lump sum payments (totaling $75,000) that he received on March 1 of each year from 2017 through 2019 were not includable in his final average salary for purposes of calculating his pension benefits.* 

This resulted in a recalculation of and reduction in Petitioner's pension benefits and a directive that the overpayments be recouped from his pension payments.

Following a hearing, a Hearing Officer agreed that the lump sum payments had been properly excluded from the calculation of Petitioner's final average salary. The Comptroller adopted the Hearing Officer's decision.

Petitioner then commenced this proceeding pursuant to CPLR Article 78 challenging the Comptroller's determination.

Citing Matter of Bohlen v DiNapoli, 34 NY3d 434, the Appellate Division explained the "Comptroller is vested with exclusive authority to determine applications for retirement benefits and such determination, if supported by substantial evidence, must be upheld". Further, opined the Appellate Division, "where substantial evidence exists to support the [Comptroller's] determination, a court may not substitute its judgment for that of the agency, even if there is evidence supporting a contrary conclusion".

Petitioner bears the burden of establishing his entitlement to the inclusion of the lump sum payments in the calculation of his final average salary, said the Appellate Division, and this he failed to do. 

"Consistent with the provisions of the Retirement and Social Security Law, a member's retirement benefit is based upon his or her final average salary, i.e., 'the average salary earned by such ... member during any three consecutive years which provide the highest average salary' ".**

Noting that a court "need not defer to the Comptroller's interpretation of the statutory exclusion for lump sum 'credits for time not worked' [the court said it was] in agreement with the Comptroller's determination as applied to the facts of this matter."

*This Retirement System determination was based upon its finding that the lump sum payments made pursuant to an October 17, 2017 memorandum of agreement between the Village and the PBA was not for "time worked" and, as such, were not pensionable.

** Annual compensation is defined as "(t)he salary or wages annually earnable by a member" (see Retirement and Social Security Law §302(2)(a).

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