Selected links to items focusing on government operations posted on the Internet during the week ending December 8, 2023

2023: The Year Generative AI Gained Ground in Gov Tech While the likes of ChatGPT and its competitors may give pause to leaders in both the private and public sectors, it would be hard to find a state or local CIO dismissive of the potential and influence of generative AI. READ MORE

 

2023’s Dark Horse Cyber Story: Critical Infrastructure Attacks There are several cybersecurity trends that truly deserve top attention when we look back at 2023 — and they will get it. Meanwhile, cyber attacks against critical infrastructure quietly grow, despite a lack of major attention. READ MORE

 

3 Ways AI Can Make a Splash in Government, Fast At a recent gathering of public- and private-sector technology leaders, discussions included several examples of how AI can help the public sector without piling onto time and resource burdens. READ MORE

 

A Growing Momentum to Invest in Programs That Work It’s happening in red and blue states alike: Policymakers and civil servants are increasingly relying on evidence to transform how taxpayer dollars are spent. 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

 

Cities Hope AI Camera Enforcement Can Improve Bus Service Philadelphia, New York and Washington, D.C., are using bus-mounted cameras with AI technology to better enforce parking violations, hoping to clear transit lanes of vehicles and make public transit faster and safer. READ MORE

 

Colorado Dodged a Recession This Year. Can It Do It Again? Despite job gains moving at their slowest pace since 2011 and extreme stress in commercial real estate, Colorado managed to stave off a recession this year. Many are wondering whether it can keep an economic downturn at bay again next year. READ MORE

 

Cybersecurity Trends Point to More Sophisticated Attacks Ahead As ransomware attacks have continued to hit state and local organizations — and tech advancements like generative AI have continued apace — cyber experts predict evolving malicious tactics for 2024. READ MORE

 

Dallas Wins $5M Grant to Help Relocate Housing Voucher Holders The city’s Housing Authority received the federal grant to help voucher holders relocate to areas of high opportunity. The DHA estimates that more than 3,500 families are living in non-high-opportunity areas. READ MORE

 

Election Workers Push Back on Disruptions and Threats Election offices in California, Georgia, Nevada, Oregon and Washington received powder-filled letters around the November election. But states and workers are increasing efforts to protect democratic elections amid continued risk. READ MORE

 

EVs Are a Tough Sell in Texas. Here’s Why. A new survey found that only about 5 percent of Texans currently drive an electric vehicle and, of those who don’t currently own or lease an EV, about 60 percent said they probably wouldn’t consider one in the future either. READ MORE

 

How Did Georgia’s Budget Reserve Grow So Big So Fast? In 2021, the state’s surplus was $3.7 billion and a year later it had grown by nearly another $3 billion. Now with $16 billion reserved, it’s likely that increased spending will occur in next year’s session. READ MORE

 

How Technology Is Shaping Parking Policy, Pricing and Enforcement A digital parking technology pilot in Arlington County, Va., is providing fresh, real-time data related to which areas of the city experience the highest parking demand and how to better manage those spaces. READ MORE

 

In the World of Smart Cities, No One Wants a ‘One-Hit Wonder’ Too often, urban technology doesn’t scale across cities because it’s simply not ready for prime time, experts argued at the recent Smart Cities Connect Conference and Expo in National Harbor, Md. READ MORE

 

Long Beach CIO Opts to Stay on Post-Cyber Attack Long Beach CIO Paula Crowell was set to take over as Santa Monica’s CIO Dec. 18, but the far-reaching impacts of a November cyber attack prompted her to reconsider the transition. 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

 

Los Angeles Aims to Shift to Local Water Reliance by 2045 The nation’s largest county currently imports 60 percent of its water supply. The water plan that the Board of Supervisors adopted on Tuesday outlines how it will shift to sourcing 162 billion gallons locally instead. READ MORE

 

Niagara Considers Apprenticeship Requirement for County Projects A proposed law would require successful bidders for county construction work valued at $1 million or more to meet the standards of a New York State Apprenticeship program in an effort to retain trade students. READ MORE

 

Northeast Ohio Schools Ask: Should We Ban Cellphones? Nearly 100 percent of students use their phones for an average of 42 minutes during the school day, with social media being the top reason. A study found that adolescent smartphone use during weekdays resulted in worsened mental health. READ MORE

 

Ohio Creates Policy and Council to Govern Statewide AI Use Ohio’s new policy aims to ensure AI accountability with human verification mandates, plus a council to set requirements for how agencies must use the new technology, among other considerations. READ MORE

 

Preservica Launches Public Records Archiving and FOIA Tool The new product embeds in Microsoft 365 and can save officials from labor-intensive work to save minutes, correspondence and other documents. Other companies, too, have found opportunity in this gov tech niche. READ MORE

 

Professors Cite Data Privacy, Cheating Among Top AI Concerns Based on a recent professional development course about generative AI, college professors still have reservations about data privacy, plagiarism, accessibility and mixed messages around the technology. READ MORE

 

Public Pensions Are Losing Top Talent. Isn’t It Time to Rethink Compensation? High-profile departures of senior-level executives reflect not only an aging workforce and a more politicized operating environment in government but also salaries and benefits that need to be competitive with the private sector’s. 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

 

Ransomware Incident Affects Scores of Credit Unions Credit union solutions provider Ongoing Operations experienced a cyber incident in late November. About 60 credit unions are believed to be suffering a level of disruption as a result. READ MORE

 

Texas Chided for Conditions for Mentally Disabled Foster Youth A U.S. district judge has scolded the Texas Health and Human Services Commission for ignoring complaints of maltreatment and horrible living conditions for foster children with intellectual disabilities. READ MORE

 

The District of Columbia Unveils an AI-Powered Career Platform Career Ready DC, a new AI-matching technology platform from the DC Department of Employment Services and Eightfold AI, aims to help match residents with employment opportunities more efficiently and equitably. READ MORE

 

The YIMBY Movement Needs to Go Commercial Even in a work-from-home era, deregulation — fewer restrictions on commercial property development — would lead to more business creation and more jobs with higher wages. READ MORE

 

Thousands of Alaskans Wait on Food Aid Amid SNAP Backlog  More than 12,000 state residents who applied or attempted to recertify for the Supplemental Nutrition Assistance Program, commonly known as food stamps, are still awaiting for their benefits to be processed months later. READ MORE

 

Two Schemes for Fighting Poverty: Which One Works Better? Investing in poor neighborhoods or dispersing the poor citywide each have their proponents. But place-based strategies — improving neighborhoods — may be our only feasible option. 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

 

Watch for AI to Find Its Way Into Smart City Upgrades As cities update timeless technology like streetlights, they are laying the groundwork for smart city connectivity and data gathering. Artificial intelligence will help sift through the mounds of data these projects create. READ MORE

 

What Are the Best Measures to Thwart a School Shooting? “The school district doesn’t want law enforcement sitting around watching kids in the school during the day and law enforcement doesn’t want to sit around and watch kids during the school day either.” 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

 

What Is Citrix Bleed? The Next Ransomware Patch You Need Adopting a patch released in October — and removing any threat actors that may already be exploiting unpatched instances of the software — is important to defending against new actors known to exploit this flaw. READ MORE

 

What's New in Digital Equity: Checking on the National Broadband Map 3.0 Plus, Maryland to put $27 million toward getting Internet devices for residents of underserved households, Colorado releases a new broadband workforce plan, and more. READ MORE

 

Who Will Pay for New Orleans’ Updated Power Grid? A New Orleans power utility wants customers to pay for the $750 million to $1 billion price tag, which could raise bills an additional $11.86 per month. But the city has pushed back saying there must be an affordable option for ratepayers. READ MORE

 

Wisconsin’s AI Strategy: Upskilling, Not Displacing Workers The chair of the Wisconsin Governor’s Task Force on Workforce and Artificial Intelligence shares how the state is aiming to be one of the first states to harness the power of AI by redefining the workplace. READ MORE

 

The Workers' Compensation Board is required address all the arguments raised by Claimant seeking benefits on administrative appeal and provide an explanation for its determination

This applicant for Workers' Compensation benefits [Claimant] worked as a mass transit customer service agent for the self-insured employer [Employer]. On January 14, 2021, Claimant was confronted by an emotionally disturbed person. This person came up to Claimant, then in her enclosed booth, and banged on the windows while screaming and threatening to kill her. Thereafter, claimant took a three-month unpaid leave from work under the Family and Medical Leave Act (29 USC §2601 et seq.) and was treated by a private medical provider. 

When claimant returned to work she suffered a panic attack, and her supervisor advised her to file a workers' compensation claim. Claimant was referred to a medical provider authorized by the Workers' Compensation Board, who diagnosed her with causally-related anxiety and acute stress reaction.

Employer submitted a First Report of Injury form on June 15, 2021, indicating the Claim Type as "M — Medical Only" and the Agreement to Compensation as "L — With Liability." The Workers' Compensation Board issued a Notice of Case Assembly and advised the parties and Claimant filed a claim for workers' compensation benefits on June 21, 2021, asserting that she sustained post-traumatic stress disorder [PTSD]. The following day, June 22, 2021, Claimant began treating with a licensed social worker, who diagnosed her with causally-related PTSD, opined that she remained unable to return to work at that time and submitted a medical report to the Board.

Employer controverted the claim and argued that, because the Board had not indexed the case, the 25-day time period in which to file a notice of controversy under Workers' Compensation Law §25 (2) (b) had not been triggered. A Workers' Compensation Law Judge [WCLJ] found prima facie medical evidence of PTSD, agreed that Employer was entitled to controvert the claim and, thus, afforded it the opportunity to schedule an independent medical examination. 

Employer later filed a Subsequent Report of Injury controverting and denying the claim based on, among other grounds, no compensable accident. Claimant's treatment providers were deposed in December 2021, and claimant testified at the next hearing regarding the incident and her inability to work.

The WCLJ credited Claimant's testimony but disallowed the claim, finding that the incident did not qualify as an accident in that Claimant testified that she frequently experienced verbal abuse while working in the transit system and, thus, did not establish that the stress that caused her psychiatric injury was greater than that which other similarly-situated workers experienced in a normal work environment.

Ultimately the Workers' Compensation Board [Boar] affirmed the decisions of the WCLJ, agreeing that, because it never indexed the claim, the provisions of Workers' Compensation Law §25 (2) (b) did not apply. The Board further upheld the WCLJ's finding of no compensable accident. Claimant appealed the Board's determination.

The Appellate Division reversed the Board's determination, noting the Board did not address any of the related arguments raised by Claimant, including:

1. Employer's First Report of Injury form, indicating acceptance of the claim with liability and that report was binding on Employer; and

2. Employer's subsequent actions in controverting the claim violated the purpose of 12 NYCRR 300.37(c).

The matter was remitted to the Board "for it to satisfy its obligation to address the issues raised by Claimant on administrative appeal and provide an explanation for its determination."

The Appellate Division also observed "The Attorney General elected not to participate in this matter, involving significant questions of statutory and regulatory interpretation, while urging this Court not to draw any adverse inference from that lack of participation. This was also the case the last time these arguments were raised to this Court" (see Matter of Williams v New York City Tr. Auth., 214 AD3d 1099) and "strongly encourage such participation on any potential appeal following this remittal".

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

 

Municipal and School Audits released by New York State Comptroller Thomas P. DiNapoli

On December 7, 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 a summary and the complete audit report.

Village of Schaghticoke – Board Oversight (Rensselaer County)

The board did not provide adequate oversight of financial operations. As a result, the board cannot be sure it has accurate financial information to make decisions and gauge the village’s financial condition. The board did not establish controls or other oversight procedures to compensate for the clerk-treasurer performing all functions of the financial and recordkeeping duties or audit the clerk-treasurer’s records and reports for the fiscal year ending May 31, 2022.

 

Putnam/Northern Westchester Board of Cooperative Educational Services (BOCES)

The board did not always ensure non-instructional employee overtime was properly monitored, approved or calculated. The 15 highest overtime earners received overtime totaling $254,820 during the audit period. A review determined BOCES officials may have been able to reduce overtime by up to $28,337, or almost 11%. BOCES officials paid a total of $66,295 to 13 employees for work on Saturdays that included $22,091 additional pay for working overtime. However, the BOCES Classified Employees’ Association collective bargaining agreement supports a Tuesday through Saturday work week. Therefore, this overtime may have been avoided if some employees worked Tuesday through Saturday instead.

 

City of Newburgh – Budget Review (Orange County)

The city’s use of approximately $3.4 million of general fund balance to close gaps in the budget decreases the fund balance that is available to cover unforeseen circumstances. The city has also appropriated approximately $2.5 million of sewer fund balance and appropriated $24,770 of fund balance for the water fund. However, the water fund already has a deficit fund balance of $58,722. In addition, the city should refrain from including the $1.5 million revenue and corresponding expenditures in their 2024 adopted budget for the New York State Touring Route Program because there is no assurance the state will appropriate additional money for this program. Also, the city could potentially face shortfalls based on revenue estimates for sewer usage and sale of metered water and the budgeted overtime funding for police of $1.1 million is likely underestimated by a total of at least $715,000. During the review of the city’s proposed 2024 budget, two conflicting proposed budget documents were posted to the city’s website.

 

Town of Vestal – Former Police Chief’s Separation Agreement (Broome County)

Town officials paid severance payments to the former police chief, totaling $229,251, pursuant to a separation agreement with the town. While the separation agreement included $13,383 for earned, but unused leave accruals, neither the board or other town officials were able to provide any additional written documentation to support the town’s decision to pay the additional $215,868 in severance payments. 

 

City of Salamanca – Employee Benefits (Cattaraugus County)

Separation payments were not properly authorized, adequately supported or accurately calculated. This resulted in unsupported and possibly improper payments being made. Of the 23 separation payments made between April 1, 2020 and Oct. 31, 2022, to 18 employees, totaling approximately $306,000,  seven payments totaling approximately $13,400 did not have adequate support and six additional payments totaling approximately $6,800 included leave balances that were not authorized to be paid at separation. This included $3,400 paid to one employee that did not leave city employment. In addition, one payment totaling approximately $45,000 was based on more than nine years’ worth of leave accrual records.

 

City of Salamanca – City Comptroller’s Financial Reports (Cattaraugus County)

The former comptroller used improper accounting practices and did not complete timely and accurate annual and monthly financial reports. As a result, the council did not have accurate and up-to-date financial information when making significant financial decisions. Fiscal year-ending 2021 general fund cash was overstated by approximately $330,000 and annual financial reports for 2018 through 2021 were not filed until after the resignation of the former comptroller. The longest overdue report was more than four years past its due date and monthly financial reports included erroneous reporting of revenue and expenditures. In addition, the mayor and council did not ensure annual reports were accurate and submitted in a timely manner. Monthly financial reports were inaccurate because the former comptroller was using improper accounting practices that the council did not detect.

 

Town of Colesville – Procurement (Broome County)

Officials did not always use a competitive process when purchasing goods or services and some officials were unfamiliar with the town’s procurement policy requirements. Of the 28 purchases reviewed totaling $1.2 million, officials did not properly seek competition for three purchases totaling $170,575.

 

St. Lawrence-Lewis Board of Cooperative Educational Services (BOCES) – Capital Assets  

BOCES officials did not properly monitor and account for Information Technology (IT) assets. As a result, officials cannot ensure that assets are in BOCES’ possession and protected against loss or unauthorized use. Officials did not maintain accurate and up-to-date inventory records, affix identification tags to all assets, periodically conduct physical inventories, and ensure sensitive data was erased before assets with hard drives were disposed of. Sixty-nine out of 140 recorded IT assets could not be located. Also, 30 out of 95 assets on hand were not listed in the inventory records. In addition, none of the 39 IT assets purchased and placed in service during the 2022-23 school year were added to the inventory records and none of the 25 computer disposals tested had evidence that the hard drives were sanitized prior to disposal. Furthermore, 11 other computers were sanitized and disposed of but were still active in the inventory records. The inventory records also did not always show the proper location of IT assets and sometimes were missing key information such as serial numbers, locations, purchase dates and costs.

 

Tonawanda City School District – Procurement (Erie County)

The board and district officials did not always use a competitive process to procure goods and services. As a result, they did not comply with district policies or state law and may have paid more than necessary for goods and services. The board and district officials procured 167 interactive panels for $684,132 without obtaining competitive bids and did not obtain quotes or request proposals in accordance with district policies for 23 purchases totaling $102,378.

 

Village of Greene – Investment Program (Chenango County)

Village officials developed a comprehensive investment program but did not effectively manage the program. During the 22-month audit period, the village earned approximately $5,800 from money on deposit in the village’s checking and savings accounts, which had an average daily balance of approximately $3.7 million. Had officials considered other legally permissible investment options, the village may have earned approximately $96,900. Officials also did not prepare monthly cash flow forecasts to estimate funds available for investment or monitor investments and did not formally solicit interest rate quotes or consider other legally permissible investment options.

 

Dobbs Ferry Union Free School District – Facilities Department Overtime (Westchester County)

District officials did not properly approve and monitor overtime worked by employees. As a result, employees may have worked unnecessary overtime. Officials paid 10 employees $198,716 in overtime for emergency, non-emergency and absenteeism during the 21-month audit period. Approximately $186,330 of overtime work to be performed was not properly approved. Officials paid 10 employees a total of $36,734 in overtime to conduct 270 building checks. However, officials lacked the required building check forms to support that 267 checks were performed, and officials did not follow up with the employees to confirm the checks were conducted. While the overtime costs for the audit period examined accounted for 24% of department employees’ total compensation, officials did not perform a cost benefit analysis or determine other options that may have reduced overtime.

 

University Preparatory Charter School for Young Men – Payroll (Monroe County)

School officials did not always accurately compensate employees or require adequate support for hours worked as payroll errors went undetected and resulted in unnecessary and erroneous payments. Auditors reviewed policies and documents and examined payroll-related records for 25 of the 138 individuals employed by the school and determined that officials lacked records to support compensation totaling $18,527 paid to three hourly employees and twelve employees received pay that was not consistent with their employment agreements, authorized pay rates or board policy resulting in compensation errors totaling $5,188. Officials also could not support they provided sufficient information for the board to perform its oversight duties or ensure that the chief executive officer authorized salaries within the board-approved range. In addition, officials did not adequately segregate payroll duties or establish sufficient compensating controls, which could allow other discrepancies to occur.

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Application to reopen a matter earlier adjudicated by the Commissioner of Education

In this appeal to the Commissioner of Education the Petitioner sought to reopen Application of Rickson, 63 Ed Dept Rep, Decision No. 18,347, which denied her application to remove certain school officers and employees from their positions with the Albany-Schoharie-Schenectady-Saratoga Board of Cooperative Educational Services.

The Commissioner denied the Petitioner's application to reopen Commissioner's Decision No, 18,347, explaining Petitioner "has not established grounds to reopen the underlying decision in accordance with the standard set forth in 8 NYCRR 276.8".

Click HERE to read more.

 

Plaintiff's tort claims, claims of violations of the New York City Human Rights Law and allegations that he was forced him to retire from his position dismissed

Plaintiff, a former detective with the New York City Police Department [NYPD], commenced this action against the defendants [Defendants] alleging a number of tort claims and claims under the New York City Human Rights Law and alleged that Defendants' conduct forced him to retire from the NYPD.

Citing General Municipal Law §50-e and Umeh v New York City Health & Hosps. Corp., 205 AD3d 599, the Appellate Division held that Plaintiff's tort claims were properly dismissed as untimely as he failed to file a notice of claim within 90 days of their accrual.

In contrast, the Appellate Division held that Plaintiff "has sufficiently alleged that Defendants failed to accommodate his disability under the New York City Human Rights Law in that his complaint alleges that Defendants were aware of Plaintiff's medical problems after his being hospitalized for COVID-19, but failed to engage him in a good-faith interactive process to assess his needs and consider his request to work from home.

These allegations, said the court, coupled with his allegation that he would have continued working if his request for reasonable accommodation was granted, are sufficient to state a cognizable claim for failure to accommodate his disability under the City's Human Rights Law.

Notwithstanding this, the Appellate Division held that Plaintiff's discrimination claim was properly dismissed, explaining "the complaint fails to allege that 'Plaintiff' was 'treated less well' or 'disadvantaged' because of his disability".

Addressing Plaintiff's retaliation claim, the court said "vague, generalized complaints" about a NYPD physician's treatment of him to an unspecified person or authority do not constitute protected activity nor did Plaintiff allege facts showing that Defendants "took an action that disadvantaged [him]" after his complaining about alleged discriminatory conduct.

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

 

Seeking a recount of the results of a school board election

Petitioner, an unsuccessful candidate for one of five open board seat, sought a vote recount, the voiding of board actions taken after the election if appropriate and the revision of the school district's policies relating to board elections.

The Commissioner held that the appeal must be dismissed for failure to join necessary parties as any person or entity whose rights would be adversely affected by a determination in favor of a petitioner is a necessary party and must be joined as such. In an appeal regarding a school district election, the petitioner must join the district’s board of education as well as “each person whose right to hold office is disputed.

However, said the Commissioner of Education, even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. The Commissioner explained that "To invalidate the results of a school district election, the petitioner must either:  (1) establish not only that irregularities occurred but also that any irregularities actually affected the outcome of the election or were so pervasive that they vitiated the electoral process; or (2) demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law".

In contrast, the Commissioner noted that "It is well settled that mere speculation as to the existence of irregularities or the effect of irregularities provides an insufficient basis on which to annul election results, citing Appeal of Holliday, 60 Ed Dept Rep, Decision No. 17,947 and  Appeal of Dodson, et al., 54 id., Decision No. 16,764).

Further, in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief. In addition, opined the Commissioner, Petitioner has not established that school district violated any legal requirement or that the act of which she complains affected the outcome of the election.

As to Petitioner’s argument is that the school district improperly failed to advise her of her right to observe the opening of absentee ballots on the evening of the election, the Commissioner viewed this argument is unavailing as the school district had submitted an affidavit from its district clerk asserting that the public was, in fact, invited to observe the opening and the tallying of absentee ballots on the evening of the election and that “numerous” observers did so.  

In any event, even assuming that the school district had not extended this invitation, the Commissioner noted it has been previously held that there is no requirement that absentee ballots be opened in the presence of the candidate or their representatives, citing Appeal of Jarmond, 56 Ed Dept Rep, Decision No. 17,108 and Appeal of Georges, 45 id. 453, Decision No. 15,380.

In sum, the Commissioner found Petitioner has failed to meet her burden of proof to establish that there were voting irregularities that affected the outcome of the election. 

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

 

New York State Workers’ Compensation Board webinar series for workers and their advocates

New York State Workers’ Compensation Board continues to offer its webinar its webinar series for workers and their advocates. Workers’ Comp 202: Best Practices to Access Benefits for Workers, A presentation by the Office of the Advocate for Injured Workers, webinars is currently scheduled to be held on Wednesday, December 13, 2023.

The sessions are free and time for questions will be provided.

Wednesday, December 13, 2023
10:00 A.M. - 11:30 A.M.
Register here

Topics include:

• Understanding labor market attachment
• Details on benefit periods and how benefit rates are calculated
• The importance of items such as the degree of disability and the Carrier Continue Payments (CCP) order
• How advocates can help workers and comply with privacy provisions
• The Workers’ Compensation Board’s New York Medical Treatment Guidelines, and more!

 

Employee required to demonstrate his objection to receiving COVID-19 vaccines is based on a sincerely held religious belief

In this challenge to a denial of the employee's [Petitioner] request for a religious exemption from the COVID-19 vaccination requirement for employees of the City of New York, brought pursuant to CPLR Article 78, the Appellate Division unanimously affirmed the Citywide Panel's determination denying the Petitioner's application for the exemption.

The court said the Petitioner had failed to demonstrate that the Citywide Panel's determination was arbitrary and capricious or made in violation of lawful procedure as the Citywide Panel had a rational basis for denying Petitioner's administrative appeal from the denial of his application for a religious exemption from the vaccination requirement, based on the Citywide Panel's findings that: Petitioner:

1. Petitioner failed to establish that his objection to receiving any of the COVID-19 vaccines was based on a sincerely held religious belief, given that he "had no demonstrated history of refusing medications or vaccines" other than declining to receive flu vaccinations for unspecified reasons; and 

2. Petitioner failed to address whether he had "avoided any other vaccines or medications based on the same objection he raised to the COVID-19 vaccines". 

Citing Matter of Marsteller v City of New York, 217 AD3d 543, the Appellate Division noted "It is not dispositive that the Citywide Panel's determination did not set forth any reasoning; a member of the Panel clarified the basis for the determination in an affirmation submitted in the article 78 proceeding".

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

 

 

New York State's Freedom of Information Law [FOIL] as amended does not limit disclosures

The New York State Legislature repealed Civil Rights Law §50-a* and amended the Freedom of Information Law [FOIL] relating to the disclosure of law enforcement disciplinary records and the types of redactions to be made thereto prior to disclosure effective June 12, 2020,.**

Addressing an appeal by Petitioner in a proceeding pursuant to CPLR Article 78 to compel the production of certain records pursuant to FOIL, the Appellate Division noted that Supreme Court's judgment, insofar as appealed from, denied branches of the petition which were to compel the production of the records sought in three Freedom of Information Law requests and, in effect, dismissed that portion of the proceeding.

As to the three FOIL requests at issue in this action, NCPD had withheld all documents relating to complaints that were not determined to be substantiated on the ground that such documents were categorically exempt from disclosure as an "unwarranted invasion of personal privacy" pursuant to Public Officers Law §87(2)(b).

The Appellate Division opined that "records concerning unsubstantiated complaints or allegations of misconduct are not categorically exempt from disclosure as an unwarranted invasion of personal privacy, and the NCPD is required to disclose the requested records, subject to redactions with particularized and specific justification under Public Officers Law §87(2), as mandated by §87(4-a), or as permitted by §87(4-b).

The Appellate Division observed that "By their nature, FOIL requests seek records that were generated prior to the request date." In amending the Public Officers Law to provide for the disclosure of records relating to law enforcement disciplinary proceedings, "the Legislature did not limit disclosure under FOIL to records generated after June 12, 2020, and we will not impose such a limitation ourselves", citing Matter of Friedman v Rice, 30 NY3d at 478.***

* The former Civil Rights Law §50-a provided a blanket shield from public disclosure for police officer personnel records, including records relating to disciplinary proceedings arising out of allegations of misconduct. See Matter of New York Civ. Liberties Union v New York City Police Dept., 32 NY3d 556).

** See Chapter 96 of the Laws of 2020.

*** There are statutory prohibitions to public disclosure of certain public records. Education Law, §1127 - [Confidentiality of records] and §33.13, Mental Hygiene Law [Clinical records; confidentiality] are examples of such statutory limitations. 

Click HERE to access the full text of the Appellate Division's analysis and decision posted on the Internet.

 

Selected judicial decisions posted on the Internet during the week ending December 1, 2023 posted on the Internet

ANTHONY SANDERS, ET AL V. COUNTY OF VENTURA Civil Rights, Labor and Employment Law US Court of Appeals for the Ninth Circuit 

 

Cities Management, Inc. v. Commissioner of Revenue Business Law, Constitutional Law, Government and Administrative Law, Tax Law Minnesota Supreme Court

 

Gray v. Hawthorn Children's Psychiatric Hospital Government and  Administrative Law, Labor & Employment Law, Personal Injury Supreme Court of Missouri

 

Harper v. Springfield Rehab & Health Care Center Government & Administrative Law, Labor & Employment Law, Personal Injury Supreme Court of Missouri

 

Hart v. Illinois State Police Government & Administrative Law Supreme Court of Illinois

 

Highroller Transportation, LLC v. Nev. Transportation Authority Government & Administrative Law, Transportation Law Supreme Court of Nevada

 

Jones v. Regents of the University of California Labor and Employment Law, Personal Injury California Courts of Appeal

 

League of Women Voters of Ohio v. Ohio Redistricting Comm'n Constitutional Law, Election Law, Government and Administrative Law Supreme Court of Ohio

 

Matter of Didier Constitutional Law, Government and Administrative Law North Dakota Supreme Court

 

Mellowitz v. Ball State University Contracts, Education Law, Health Law Supreme Court of Indiana

 

Singh v. Garland Government & Administrative Law, Immigration Law US Court of Appeals for the First Circuit

 

State ex rel. Ames v. Ondrey Government and Administrative Law Supreme Court of Ohio

 

State ex rel. Block v. Industrial Commission of Ohio Government & Administrative Law, Labor and Employment Law, Personal Injury Supreme Court of Ohio

 

State ex rel. Clark v. Ohio Dep't of Rehabilitation & Correction Criminal Law, Government and Administrative Law Supreme Court of Ohio

 

Stufkosky v. Department of Transportation Government and Administrative Law, Personal Injury, Products Liability California Courts of Appeal

 

Thomas v. The Regents of the University of California Education Law, Entertainment and Sports Law, Personal Injury

 

 

Counting provisional service towards completing probation upon permanent appointment to the position subject of The New York State Department of Civil Service's General Information Bulletin 23-04

On November 30, 2023, Jessica Rowe, the New York State Department of Civil Service's Director of Staffing Services, advised Department and Agency Directors of Human Resources, Personnel and Affirmative Action Officers, Equal Opportunity Specialists, Diversity and Inclusion Specialists as follows:

"On September 7, 2023, Governor Kathy Hochul signed Chapter 356 of the laws of 2023. This Chapter amends subdivision (1) of Civil Service Law (CSL) section 63, entitled 'Probationary term,' to include the following language:

"This statute requires that on or after September 7, 2023, any employee serving provisionally in a title that receives a permanent appointment immediately following the provisional service to the same title shall have all actual service time in provisional status counted towards completing the required probationary period as set forth in Title 4, Chapter 1 of the Rules for the Classified Service (4NYCRR)*. All provisional service that meets such criteria shall be credited regardless of when the qualifying provisional service first began. This change to the law does not impact individuals who served provisionally and were permanently appointed to the same title before September 7, 2023.

"This statue applies only to provisional employees appointed in accordance with section 65 of the CSL and does not apply to employees appointed in temporary status in accordance with section 64 of CSL. Provisionals who have their status changed to “temporary revocation” upon eligible list establishment shall have such service considered as provisional service for the purposes of meeting the requirements of CSL section 63."

The text of General Information Bulletin 23-04 is posted on the Internet at: https://www.cs.ny.gov/ssd/Manuals/SPMM/GIBS/GIB23-04.cfm

* N.B. Except as otherwise specified in any particular rule, these rules shall apply to positions and employments in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service.