Selected links to items focusing on government operations posted on the Internet during the week ending December 15, 2023

2023 Cyber Review: The Year GenAI Stole the Show This was a year unlike any other in the brief history of the cybersecurity industry, with generative artificial intelligence disrupting plans and ushering in unparalleled change to security. READ MORE

 

3 Months After Cash Bail Ended, County Jail Population Declines Effingham County, Ill., has seen a decrease in the number of inmates and a reduction in caseloads just three months after the state ended cash bail. However, the long-term impacts of the end of cash bail remains to be seen. READ MORE

 

A Union-Backed Bill Would Tackle New York Workplace Bullying Proposed legislation that has garnered support from a public employees union would provide greater protection to state workers who file complaints of bullying, which is mostly not illegal in the state. READ MORE

 

After Major Progress in 2023, Digital Equity Looks Ahead

 

AI Is Coming Soon for Governments’ Information. What’s It Worth? States and localities may have hidden treasure in their data that can be profitably unearthed by commercial interests. Governments need to be able to realize the value of their data while still protecting the public. READ MORE

 

Airport Screening of the Future It may be just around the calendar. READ MORE

 

An Eye for Equity and Emerging Tech, CIO James Weaver Charts a Course With an election that promises to usher in a new administration for North Carolina, CIO James Weaver is focusing his energy on improving the foundations of state IT while also embracing new — and unstoppable — technologies. READ MORE

 

Annual NASCIO Survey Highlights Dramatic Shifts in IT Priorities
For the first time since 2007, NASCIO’s annual survey of state IT leaders was tied between two top priorities. That spot, normally dominated by cybersecurity and risk management, was joined this year by digital government and services. READ MORE

 

California Considers Everything, Even Fiscal Emergency, for Budget Gap Gov. Gavin Newsom and state legislators this year made budget cuts and deferred spending as a way to address the $31.5 billion spending gap. But, as tax revenues were delayed by winter storms, the gap has grown to $68 billion. READ MORE

 

California Considers Everything, Even Fiscal Emergency, for Budget Gap Gov. Gavin Newsom and state legislators this year made budget cuts and deferred spending as a way to address the $31.5 billion spending gap. But, as tax revenues were delayed by winter storms, the gap has grown to $68 billion. READ MORE

 

Can your Android phone share your medical data with 911? READ MORE

 

City Halls Should Be the Souls and Hearts of Their Communities Government centers can be more than simply places where official business is conducted. They can be places for residents to meet, interact and celebrate each other. READ MORE

 

Colorado Legislators Work to Improve State’s Mental Illness Care A group of state lawmakers, advocates and parents are working to change a Medicaid rule that limits psychiatric hospital stays to 15 days a month, but the change would need $7.2 million annually and federal approval. READ MORE

 

Colorado OIT Seeks to Fill Two Executive-Level Tech Roles The Colorado Office of Information Technology is officially looking to hire for two executive-level IT roles: deputy executive director and chief information security officer. READ MORE

 

Crooks Can’t Dodge the Real-Time Crime Center ‘Double Click’ “When a call happens today, we can listen in immediately. We’re hearing the person calling in saying, ‘Hey, there’s a shooting.’ And that [information] hasn’t even popped on our dispatcher’s screen yet.” READ MORE

 

Cybersecurity Funded, Now What? Indiana’s CIO Shares 2024 Plan For Indiana CIO Tracy Barnes, elevating cybersecurity, creating IT leadership training, enacting AI policy and laying the framework for a statewide digital ID program will take center stage in 2024. 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 Creates New Police Unit to Promote Transparency and Discipline The new unit will be composed mostly of civilian employees. It will publish an annual accountability report that evaluates the department on its policies and training, compared to best practices nationwide. READ MORE

 

Despite Opposition, Newsom Advances Delta Tunnel Project The California governor and his administration are moving forward with a plan to build a 45-mile water tunnel between the Sacramento-San Joaquin River Delta, even as the project has received heavy pushback from environmental groups. READ MORE

 

Digitally Distracted Students Have Lower Academic Performance The Program for International Student Assessment found that about 54 percent of students got distracted by others using digital devices. Those who were distracted scored 15 points lower in math. READ MORE

 

Forensic Investigation Goes Mobile Take your forensic investigations to the next level with a comprehensive multi-biometric identification solution. READ MORE

 

Former Dallas DA Craig Watkins, Creator of Nation's First Conviction Integrity Unit, Dies at 56 The Dallas native was the state’s first Black district attorney and used DNA testing in cases, leading to about two dozen exonerations. His Conviction Integrity Unit has been nationally and internationally recognized. READ MORE

 

Gates Foundation Seeks (and Funds) New Strategies to Address Economic Mobility Fifty million Americans are living in poverty or near it. A new grant program will help nonprofits address inequities and promote upward mobility. READ MORE

 

Georgia Technology Authority Names State Insider as CTO The Georgia Technology Authority has appointed government technology veteran Subramanian Muniasamy to serve as chief technology officer. He brings public-sector IT experience from another Georgia state agency to the role. READ MORE

 

Glenn Marchi Named CIO of Orange County, N.Y. Marchi previously spent seven years leading the Office of Central and Information Services for nearby Dutchess County, N.Y., with both jurisdictions being located just north of New York City. READ MORE

 

How Digitization Can Make Government More Equitable As experts recently discussed at Code for America’s FormFest 2023 event, the digitization of government forms and processes can create more equitable access to government services for constituents. READ MORE

 

How Indiana Is Offering Free Cybersecurity Resources to Cities Armed with federal money, Indiana is giving endpoint detection and response services to local governments, with 31 entities signing up so far. But can the state make this last after the money runs out? READ MORE

 

Minnesota's Top Transit Agency Tries New Approaches to Public Safety Metro Transit in Minneapolis-St. Paul is using new methods of fare enforcement, as well as partnering with social service nonprofits, in an effort to combat open drug use and generally make trains feel safer. READ MORE

 

Modernizing Legacy Systems Is Ultimately User-Centered Work In 2023, we checked in with states on where they are with updating their major systems of record, from DMVs to ERPs. Many are overcoming tech debt with the end goal of a better resident experience. READ MORE

 

More Than Stenography: Exploring Court Record Options (Part 1) As courts grapple with a growing need for more reporters, some are considering turning to automated speech-to-text tools and other less traditional alternatives. READ MORE

 

More Than Stenography: Exploring Court Record Options (Part 1) As courts grapple with a growing need for more reporters, some are considering turning to automated speech-to-text tools and other less traditional alternatives. READ MORE

 

NASCIO Resource Offers States 12 Key Considerations for AI A new resource from NASCIO offers 12 key considerations intended to serve as guidance for states as they work to develop road maps to guide implementation of artificial intelligence technologies. READ MORE

 

New Jersey Schools Still Waiting for Aid Two Years After Ida The federal government promised $23 million to assist with recovery efforts after Hurricane Ida wreaked havoc on 49 schools and nine colleges and universities across the state. Many are still waiting for those funds. READ MORE

 

North Texas City Drives Ahead With Driverless Vehicles Arlington has been using May Mobility to run its Rideshare, Automation and Payment Integration Demonstration program since 2021, which utilizes a fleet of four self-driving vehicles to transport 150 to 200 riders daily. READ MORE

 

Opening Up Primary Elections Is a Voting Rights Issue The primary is often the only real contest in choosing those who will represent us. Closed party primaries are unrepresentative and undemocratic, and they disenfranchise more than half of the voting public: independents. READ MORE

 

Oregon Taps Former Bank of America Senior VP as New CTO Jimmy Godard previously spent more than two decades with the bank, holding roles such as senior vice president of strategy and governance and senior vice president of program service delivery manager. READ MORE

 

Oregon’s Paid Leave Program Offers Frustration Instead of Payment Wait times to speak to customer service representatives have risen to an average of more than 52 minutes, and as many as 1,500 people are experiencing delays due to the identity verification process. READ MORE

 

Over Two Decades, Much of the West Has Turned Blue. Why Hasn't Texas? Its sprawling size is one reason. But there are other factors at work, including discouraged Democrats and Republicans’ success at courting Hispanic voters. READ MORE

 

Pennsylvania Considers Annual Fee for Electric Vehicle Owners The proposed bill would charge electric vehicle owners $290 a year to supplement decreased revenue lost from the state’s gas tax. It is estimated the fee would generate as much as $20 million annually for the state. READ MORE

 

Political Spending by Public-Sector Unions Is Deep Blue More than 95 percent of PAC spending by the four biggest public-sector unions went to Democrats, according to the Commonwealth Foundation. READ MORE

 

Post-pandemic federal funding for digital equity and broadband initiatives has pushed connectivity work forward exponentially. As the new year approaches, experts ask: How do we keep this going? READ MORE

 

Post-Twitter, Government Social Media Remains Up in the Air Facebook. TikTok. X. In a year that saw major upheaval across popular social platforms, are these sites still viable options for delivering vital public information? 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

 

Red States Struggle to Clean Voter Rolls Without ERIC Republican-led states that withdrew from the Electronic Registration Information Center are now struggling to find new ways to adequately update their voter rolls. Prior to 2022, more than half the states participated in the program. READ MORE

 

San Francisco CIO Linda Gerull Announces Retirement City and county of San Francisco CIO Linda Gerull has set her retirement for Dec. 29. Chief Information Security Officer Michael Makstman will serve as the interim director of the Department of Technology. READ MORE

 

Secrets Behind Successful 311 Apps: Unlocking User Satisfaction How do some agencies create apps residents like to use? The minds behind some of the highest-rated 311 apps share best practices and recommendations to improve performance and citizen experience. READ MORE

 

Smarter Urban Tech Gives Transportation New Data to Leverage New understandings related to parking, micromobility safety, intersection activity and more are being realized thanks to smart transportation technologies. Officials say the data they are able to collect opens the door to new innovations. READ MORE

 

States Increasingly Boost Workforce with Nontraditional Hires From eliminating four-year degree requirements to major reskilling programs and a focus on building agency culture, state IT shops are looking to new ways to overcome persistent staffing concerns. READ MORE

 

Texas Ends Legal Challenge to Tax Cuts, Increased Teacher Pensions In what seems to be a coordinated effort between the governor, attorney general and secretary of state, six lawsuits challenging voter-approved property tax cuts and increases to teachers’ pensions have been blocked. READ MORE

 

Tools to Combat Voter Intimidation, from the 19th Century and Today A successful lawsuit based on 19th-century laws to combat the Ku Klux Klan has renewed attention on how police officers can help protect voters. It's part of a broader effort to crack down on intimidation. READ MORE

 

Transportation, Infrastructure Move Toward Electrification As cities work to get more electric vehicles and micromobility options like e-bikes onto streets, they're also putting livability and equity at the center of how technology can improve the urban experience. READ MORE

 

What Caused California's $68B Budget Hole? California’s projected $68 billion shortfall for the coming fiscal year represents a big challenge. Still, California’s deep reserves can reduce the burden. READ MORE

White House Taps National Security Vet as Cybersecurity Lead Harry Coker Jr. is now the second official national cyber director for the federal government, and he comes to the job with a resume that includes leadership stints with the CIA and the NSA. READ MORE

 

Will 2024 be the Year of Car-Charging Made Easy (or Easier)? Seamless and easy car-charging is the goal for drivers and the auto industry. But getting to complete interoperability is still an elusive target requiring widespread coordination among multiple stakeholders and standards. READ MORE

 

 

Teacher's aide denied unemployment insurance benefits after being found to have left his employment for personal and noncompelling reasons

An individual [Claimant] had been employed as a teacher's aide. He quit this position in order to become a full-time student and earn his bachelor's degree. Claimant had filed for unemployment insurance benefits but the New York State Department of Labor issued an initial determination finding that Claimant was disqualified from receiving unemployment insurance benefits.

After an administrative hearing, an Administrative Law Judge [ALJ] affirmed the Department of Labor's denial of Claimant's application for unemployment insurance benefits.

The Unemployment Insurance Appeal Board [Board] sustained the ALJ's ruling, explaining that the Claimant was disqualified from receiving unemployment insurance benefits as the result of Claimant's having "voluntarily left his employment without good cause." Claimant appealed the Board's determination.

Citing Matter of Lee [Commissioner of Labor], 190 AD3d 1170, and other court decisions, the Appellate Division affirmed the Board's decision, noting "It is well established that resigning from a position in order to pursue academic studies, while commendable, constitutes a personal and noncompelling reason for separating from one's employment, disqualifying a claimant from receiving unemployment insurance benefits."

The Appellate Division said it was undisputed that Claimant left his employment in order to complete an undergraduate degree program. Accordingly, substantial evidence supported the Board's finding that Claimant was disqualified from receiving unemployment insurance benefits as he had "voluntarily left his employment without good cause," and dismissed Claimant's appeal.

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

 

State Comptroller Thomas P. DiNapoli reports a decline in local government employment outside New York City

On December 14, 2023, New York State Comptroller Thomas P. DiNapoli issued a report indicating a decline in local government employment in New York State in contrast to the nation as a whole. The Comptroller's report indicates that although the nation as a whole saw a 2% increase in the number of full-time employees over a 15-year period, employment in New York's local government workforce levels contracted, mostly due to two key events: the Great Recession of 2007-09 and the COVID-19 pandemic.

“We all rely on local government employees for essential services such as education, public safety, health care, and much more,” DiNapoli said. “But local governments were hard hit by two major events, most recently the pandemic, that have taken their toll on staffing levels. Local officials must continue to meet the difficult task of balancing their budgets while making certain they have the staff in place to ensure critical services are there for their residents.

"DiNapoli’s report shows the state’s full-time local government workforce outside New York City decreased by 50,000 workers (11.1%) since the end of the Great Recession. While this was similar to the national trend, New York experienced more year-over-year volatility and a longer period of overall economic decline. As full-time workforce numbers were starting to rebound, the onset of the COVID-19 pandemic led to another reduction. While billions of dollars in federal pandemic relief aid to local governments and school districts likely helped employment numbers recover some in 2022, they remain below 2009 levels.

"DiNapoli’s report also found the following with respect to full-time local government workers outside New York City:

• Regionally, more local employees worked upstate (55%) as opposed to downstate in 2022. Upstate local governments employed 415 workers per 10,000 residents, significantly more than downstate (381).

• Funding from various federal emergency relief programs, as well as the restoration of state aid cuts and a rebound in sales tax collections, helped many local governments through the pandemic enabling them to restore full-time staffing to near pre-pandemic levels in 2022. Despite this, overall employment was still below 2009 levels.
• School districts were the largest local government employer in 2022, with 271,611 full-time workers, of which over two-thirds were instructional staff. Counties were second, with 92,413 employees, followed by cities and villages (54,395), and towns (28,418).
  
• The average annual salary for full-time local government employees was approximately $76,700 in 2022, up from about $53,900 in 2007. However, after adjusting for inflation, the average annual salary was nearly flat with an overall increase of 2.1% from 2007 to 2022.
• Workers employed in police protection were the highest paid local government employees in 2022, with an average annual salary of $104,742, followed by fire protection employees ($91,300). Public welfare employees had the lowest average annual salary at $59,133."

Click the URL below to access the Comptroller's Report posted on the Internet:

Local Government Workforce Trends in New York State

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

On December 13, 2023, New York State Comptroller Thomas P. DiNapoli announced the following Municipal and School audits were issued.

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

 

Fillmore Central School District – Credit Cards and Purchase Cards (Allegany County) Although the 230 charges reviewed by auditors totaling approximately $40,000 were for appropriate district purposes, charges were not properly approved or adequately supported. All 230 charges had one or more exceptions that could have led to potentially inappropriate card use, including approximately $38,000 in charges were not properly approved prior to the card being used; and approximately $12,000 in charges did not have adequate support to show what was purchased.

 

Hastings-on-Hudson Union Free School District - Information Technology (IT) (Westchester County) District officials did not ensure that unneeded network user accounts were disabled in a timely manner. As a result, 21% of the district’s network user accounts were unneeded and provided additional entry points that could have been used to inappropriately access the network and view personal, private and sensitive information, make unauthorized changes to records, deny legitimate access to electronic information, or gain access to or control over other IT functions. Auditors found that officials did not convey management’s expectations for managing network user accounts through written policies and procedure or disable 551 unneeded network user accounts.

 

Stafford Fire Department Inc. - Financial Management (Genesee County) The board and treasurer did not properly manage the department’s finances. The board did not adopt realistic budgets or take an active role in monitoring department finances. As a result, the operating budget was underestimated by $29,667 in 2021 and by $33,298 in 2022. Auditors found the board did not:  include revenue estimates in the budgets for 2021, 2022 and 2023. It did not develop a written multiyear financial or capital plan to help guide budget development and save for capital asset and equipment purchases.

 

Town of Baldwin – Claims Auditing (Chemung County) The board did not always properly audit claims before approving them for payment. Due to insufficient documentation, auditors were unable to determine, and the board was unable to support, it approved claims before payment. A review of 71 claims totaling approximately $55,100 determined that town officials did not comply with the town’s procurement policy. In addition, 23 claims totaling approximately $35,000 did not contain evidence that the required competition was sought and nine claims totaling approximately $7,400 were not supported with sufficient documentation such as detailed receipts, weigh tickets or itemized invoices.

 

Town of Berkshire – Procurement and Conflict of Interest (Tioga County) The board did not consistently seek competition for purchases or avoid conflicts of interest. As a result, goods and services may not have been procured in a cost-effective manner. Of the 113 purchases totaling $771,727 auditors reviewed, officials did not seek or could not support that they sought competition for 36 purchases totaling $211,171, or 27.  The town may have saved $3,891 on diesel fuel purchases if town officials had used the New York State Office of General Services contract to purchase diesel fuel. Additionally, the highway superintendent had a prohibited interest in a contract between the town and his construction company, providing construction services totaling $3,000.

 

Town of Hamburg - Finance Office (Erie County) The board and town officials did not ensure that credit card purchases were supported and for proper purposes. As a result, the former director of finance made improper credit card purchases totaling approximately $2,000 and approved her own credit card purchases. The former director was arrested in September 2022 for charges relating to her use of the town’s credit card. She pleaded guilty to disorderly conduct in December 2022. Additionally, the board and town officials did not ensure the finance office payroll was accurate and supported. The town also made improper, questionable and unsupported payroll payments totaling more than $19,000 to the former director while an employee who reported to her received unsupported out-of-title payroll payments totaling approximately $1,400. Additionally, personnel directors approved their own overtime pay totaling more than $5,000. 

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Challenging the denial of Petitioner's request to use school facilities and seeking the removal of certain school personnel

The Petitioner in this appeal to the Commissioner of Education:

[1] challenged the Board of Education's denial of his request to use district facilities in order to "operate an afterschool program" for a second year: and 

[2] sought the removal of the superintendent.

With respect to Petitioner's application seeking the removal of the superintendent, the Commissioner said Petitioner's application to remove the Superintendent must be denied because Petitioner's application lacked "the notice required by section 277.1(b) of the Commissioner’s regulations".

Citing Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055, and other Decisions of the Commissioner of Education, the Commissioner explained "a removal application that does not include the specific notice required by 8 NYCRR 277.1(b) is fatally defective and must be denied."*

Turning to the merits of the Petitioner's appeal, the Commissioner indicated  Education Law §414 provides that "boards of education may permit the use of district grounds and other property when not in use for school business for certain specific purposes. Further, the Commissioner noted that the New York State Court of Appeals has held that local school boards "exercise ultimate authority for access to students, school buildings and school property generally"** and that a school board’s determination in this regard may only be reversed if it is determined to be arbitrary or capricious.

Referring to information in the record, the Commissioner found that the school board "possessed ample justification to decline [Petitioner’s] request to utilize its facilities", opining that permitting Petitioner to continue using school facilities "could foreseeably lead to safety or liability issues."

Accordingly, the Commissioner dismissed Petitioner's appeal and denied Petitioner's application.

* §277.1(b) sets out the specific notice required for removal applications pursuant to Education Law §306, which is distinct from the notice required under §275.11(a) for appeals pursuant to Education Law §310.

** See Matter of Lloyd v. Grella, 83 NY2d 537.

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

 

State and other entity audits released by New York State Comptroller Thomas P. DiNapoli

On December 13, 2023, New York State Comptroller Thomas P. DiNapoli announced audits of the following State and other entities were issued.

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

 

Department of Motor Vehicles – Language Access Services (2022-S-38)
A statewide language access policy to assist Limited English Proficiency individuals and provide equal access to government programs and services requires State agencies that provide direct public services, including the Department of Motor Vehicles (DMV), to provide interpretation services and to translate vital documents into the most common non-English languages in the State based on census data. Auditors determined that due to gaps in the Executive Law, DMV does not have sufficient authority to enforce its language access policies at office locations operated by County Clerks, despite these offices accounting for over 75% of the total customer-facing DMV offices. In addition, auditors determined that DMV’s contracted interpretation vendor was not providing on-demand interpretation services for all languages and dialects needed, and calls for 20 different languages had an average hold time of over 30 minutes. Further, office locations operated by DMV cited issues with dialects and disconnected calls as well as a lack of interpreters.

 

Department of Health – Medicaid Claims Processing Activity October 1, 2022 Through March 31, 2023 (2022-S-36) During the six-month period ended March 31, 2023, eMedNY processed over 233 million claims, resulting in payments to providers of nearly $45 billion. OSC’s audit of Medicaid claims processing activity identified over $20.6 million in improper Medicaid payments for claims that were not processed in accordance with Medicaid requirements. The audit also identified three providers in the Medicaid program who were charged with or found guilty of crimes that violated laws or regulations governing certain health care programs. The Department of Health removed two of the providers from the Medicaid program; the remaining provider was under the Office of the Medicaid Inspector General’s review.

 

City University of New York – Course Offerings (Follow-Up) (2023-F-7)
Based on City University of New York (CUNY) data, many full-time students studying toward a bachelor’s degree do not graduate within four to six years of first-time enrollment. A prior audit, issued in September 2020, found that CUNY was not effectively matching course offerings to student demands, comprehensively tracking students’ use of financial aid, monitoring their graduation rates, or formally surveying students to consider their feedback when preparing course schedules. The follow-up found that, while CUNY deployed new applications to facilitate course scheduling and registration; offered more online, hybrid, weekend, and off-hour courses; and implemented a new communication system between students and department advisors; it did not formally survey students for their feedback. Of the initial report’s seven recommendations, two were implemented, three were partially implemented, and two were not implemented.

 

Office of Addiction Services and Supports – Oversight of Chemical Dependence Residential Services (Follow-Up) (2023-F-17)  The Office of Addiction Services and Supports (OASAS) oversees prevention, treatment, and recovery programs, including community residential programs, which provide supervised services to individuals transitioning into abstinent living, and supportive living programs intended for those who have completed treatment and are transitioning to independent living but do not require on-site staff on a 24-hour basis. A prior report, issued in December 2021, found OASAS did not adequately monitor the programs, did not meet the recertification review requirements, and did not always conduct appropriate follow-up of programs to verify that all deficiencies had been addressed. The follow-up found that OASAS made progress addressing the issues identified during the initial audit: of the three recommendations, two were implemented and one was no longer applicable.

 

Department of Environmental Conservation – Oversight of New York State Forest Tax Programs (Follow-Up) (2023-F-18) To encourage the long-term management of privately owned woodlands to sustainably produce forest crops and increase the likelihood of both healthy forests and a stable forest economy, New York enacted Real Property Tax Law 480a – a tax incentive program for qualifying private forest landowners. The Department of Environmental Conservation (DEC) has general oversight responsibility for the program. A prior report, issued in April 2022, found monitoring and enforcement weaknesses in DEC’s oversight of the program that undermined its ability to ensure program forest lands continue to be protected and that only eligible properties receive local tax exemptions. Additionally, for the 795 properties spanning 260,669 acres under the program, landowners had been benefiting from local tax reductions for over 45 years, but the properties were largely unmonitored by DEC or localities. The follow-up found that DEC made progress in addressing the issues identified during the initial audit, partially implementing both of the initial report’s recommendations.

 

Metropolitan Transportation Authority—Long Island Rail Road – Rolling Stock Programs Department – Selected Aspects of the M9 Rail Car Project Management (Follow-Up) (2023-F-10) In 2013, the Long Island Rail Road (LIRR) awarded a contract to procure new M9 rail cars to replace its M3 cars and expand its fleet in preparation for service into Grand Central Terminal, budgeting $355.9 million for an initial base order of 92 cars. A prior report, issued in March 2022, found that LIRR was over budget by $8.9 million and the contractor was behind schedule for the delivery of all 92 base cars by nearly three years—the first cars weren’t delivered until September 2019 and, as of July 2020, only 64 cars had been delivered. Furthermore, LIRR did not assess the contractor for the allowed liquidated damages, which totaled $5.5 million as of September 2020, and all 64 cars were delivered with defects and deficiencies, but LIRR conditionally accepted them (allowed as long as the deficiencies do not affect safety or function) and put them into service. The follow-up found that LIRR assessed $4.9 million of the liquidated damages by withholding payment but, to date, no repairs have been completed, and no date has been set to start the repairs. Of the initial 12 recommendations, three were implemented, three were partially implemented, and six were not implemented.

 

State Education Department (Preschool Special Education Audit Initiative) – Handicapped Children’s Association of Southern New York, Inc. – Compliance With the Reimbursable Cost Manual (2022-S-49) Handicapped Children’s Association of Southern New York, Inc. (HCA), a Johnson City-based not-for-profit organization, is approved by the State Education Department (SED) to provide preschool special education itinerant teacher services to children with disabilities who are between the ages of three and four years. For the fiscal year ended June 30, 2018, HCA reported approximately $1.9 million in reimbursable costs for the SED preschool cost-based program. Auditors identified $66,009 in reported costs that did not comply with requirements.

 

Department of Health – Improper Managed Care Payments for Misclassified Patient Discharges (2023-F-26) Many of the State’s Medicaid recipients receive their services through managed care, whereby the Department of Health (DOH) pays managed care organizations (MCOs) a monthly premium for each enrolled recipient and, in turn, MCOs pay for services their members require. When billing an MCO for an inpatient stay, the codes the hospital uses are important because payments may vary significantly depending on whether a patient is transferred or discharged. An initial report, issued in August 2022, identified from a judgmental sample of 166 claims totaling $2,474,162, that 47 claims were overpaid $323,531 because they were incorrectly coded as discharges when the patients were actually transferred to another facility. Further, 13 claims, totaling $101,447, were incorrectly billed as inpatient claims when outpatient services were actually provided. The follow-up found DOH made minimal progress in addressing the issues identified in the initial audit report, implementing none of the five recommendations.

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Appealing an administrative determination

In Matter of Saratoga Economic Development Corporation [Corporation] v State of New York Authorities Budget Office [NYABO], Corporation challenged NYABO's administrative determination requiring Corporation to comply with the Public Authorities Accountability Act of 2005.

In Matter of Smith v City of Norwich, 205 AD3d 140 the Appellate Division held that in the event an administrative determination is made where an evidentiary hearing is not required by law, court review is limited to whether the administrative determination had a rational basis and was not arbitrary and capricious.* 

Further, in Matter of Froehlich v New York State Dept. of Corr. & Community Supervision, 179 AD3d 1408, the court said "So long as [the administrative determination] has a rational basis, [courts] will sustain the [administrative] determination, even if it would have also been rational for the administrative agency to have reached a different result."

In contrast, observed the Appellate Division, in the event an agency is engaged in pure statutory interpretation, a court "need not pay deference to the agency's interpretation and may instead undertake that analysis anew." Where, however, "the interpretation of a statute or its application involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom", the Appellate Division, citing Matter of Peyton v New York City Bd. of Stds. & Appeals, 36 NY3d 271, noted courts "regularly defer to the governmental agency charged with the responsibility for administration of the statute".

The Appellate Division then opined the courts defer to an agency's statutory interpretation "where the general statutory language and legislative history indicate that the Legislature intended to adopt a broad policy approach to the subject matter of the statute, delegating to the administrative agency comprehensive, interpretive and subordinate policy-making authority, interstitially to 'fill in the blanks' consistently with the over-all policy of the statute, either by administrative rule making or case-by-case decisions."

Finding that NYABO rationally concluded that Corporation is a local authority in that there is a "close relationship between Corporation and local governments" and Corporation "is the type of entity that the Legislature intended to subject to the provisions of the [Public Authorities Reform Act, Laws of 2009, Chapter 506]", the Appellate Division ruled that NYABO's determination was rational and therefore entitled to deference, rejecting Corporation's reliance on Matter of Farms First v Saratoga Economic Dev. Corp., 222 AD2d 861.**

Reversing the judgment of Supreme Court "on the law" and without costs, the Appellate Division dismissed Corporation's petition, and "... declared that [Corporation] is a local authority subject to the Public Authorities Law".

* In a footnote the Appellate Division explained that where no administrative hearing is held, "the agency may submit an employee's or official's affidavit to explain the information that was before the agency and the rationale for its decision, and courts may consider such an affidavit even though it was not submitted during the administrative process," citing Matter of Hammonds v New York State Educ. Dept., 206 AD3d 1334.

** The Appellate Division noted that in support of the proposition that it is not a local authority, Corporation cited Matter of Farms First, contending it was an independent entity formed by private businessmen to further their own interests, has never been furnished offices at County expense, has never had a County employee serve on its board and receives some of its funding from private individuals and corporations.

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

 

Plaintiff's claims of unlawful discrimination on the basis of race, gender, and national origin evaluated by the 2nd Court of Appeals and held to be without merit

Plaintiff, proceeding pro se, sued the New York State Division of Human Rights [Division] alleging violations of Title VII of the Civil Rights Act of 1964 for discriminating against him on the basis of race, sex, and national origin; creating a hostile work environment; and retaliating against him when he complained about unfair treatment. In addition, Plaintiff also brought a variety of state-law claims against the Division, his supervisors, and certain coworkers.

The United Stated District Court granted summary judgment to Division on all of Plaintiff’s federal claims. The court then determined that the Eleventh Amendment barred his state-law claims brought against individual named Defendants in their both their official capacity and in their personal capacities, explaining "individual supervisors and coworkers (other than the Plaintiff’s actual employers) are not subject to liability under Title VII."

The U.S. Circuit Court of Appeals, Second Circuit, said Plaintiff’s claims of discrimination and retaliation under Title VII are evaluated "under the familiar McDonnell Douglas burden-shifting framework, citing Vega v Hempstead Union Free Sch. Dist., 801 F.3d 72, (discrimination) and Gorzynski v. JetBlue Airways Corp., 596 F.3d 93 (retaliation). The Circuit Court said that under this framework, "a plaintiff must demonstrate a prima facie case of discrimination or retaliation, after which the employer must point to a legitimate, nondiscriminatory reason for the challenged conduct; if the employer does so, the burden shifts back to the plaintiff to prove that “discrimination was the real reason for the employment action.”

Agreeing with the district court that Plaintiff failed to make a prima facie showing of discrimination, i.e. as relevant here, “circumstances [that] give rise to an inference of discrimination.” As relevant here, “similarly situated” coworkers of a different race, sex, or national origin Plaintiff contended were subject to more favorable treatment, the court noted that such comparators must be similarly situated “in all material respects”—they must be “subject to the same performance evaluation and discipline standards” as Plaintiff and must have engaged in “comparable conduct.” The Circuit Court opined that while Plaintiff "identifies a handful of coworkers who, he claims, completed fewer than 108 cases a year while on probation, that similarity alone is insufficient, as there is no evidence by which a reasonable jury could find that those coworkers shared [Plaintiff] issues with work quality and insubordination. Lacking a similarly situated comparator, the court explained Plaintiff "cannot show circumstances that give rise to an inference of discrimination and so cannot prove his prima facie case.

As to Plaintiff's reliance "on comparisons to nonprobationary employees," the court said they are not subject to the same performance evaluation and discipline standards and thus are not similarly situated.

Further, agreeing with the district court, the Circuit Court said "even assuming [Plaintiff] proved his prima facie case, he failed to demonstrate that the nondiscriminatory reasons proffered by the Division for extending his probation and then terminating his employment were a pretext for unlawful discrimination.

Plaintiff contended that the Division’s assertions that he was fired due to poor work performance and insubordination were pretextual because those charges were false. In particular, Plaintiff pointed to perceived irregularities in his performance evaluations, which he argues contained false information and unexpectedly turned overly critical at the time his supervisors extended his probation and terminated him. 

Significantly, the Circuit Court said that "Even if [Plaintiff] could refute the charges of inadequate performance, that would not demonstrate that his supervisors did not believe what they asserted, let alone that the actual reason for extending his probation or terminating his employment was animus based on a protected characteristic."

Accordingly, the court concluded that Plaintiff was "unable to demonstrate pretext for discrimination."

Addressing Plaintiff's retaliation claim, the Circuit Court concluded "[on] this record, no reasonable jury could find that Plaintiff engaged in protected activity." Although Plaintiff "complained to his supervisors about unfair treatment generally, there is no indication that those complaints were premised on or related to discrimination based on his protected status."

The Circuit Court then indicated that summary judgment was also warranted on Plaintiff’s hostile work environment claim as he failed to establish the alleged harassment was “sufficiently continuous and concerted” to create an objectively hostile work environment “so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions” of [Plaintiff's] employment were altered.

Considering Plaintiff's "State-Law Claims", the court held that Plaintiff had abandoned any challenge to the dismissal of his official-capacity claims by failing to raise the issue in his brief. The Circuit Court noted that it has consistently held that, “[i]n general, where the federal claims are dismissed before trial, the state claims should be dismissed as well,” citing N.Y. Mercantile Exch., Inc. v. Intercontinental Exch., Inc., 497 F.3d 109.

After considering Plaintiff's remaining arguments, the Circuit Court said it found them "to be without merit" and affirmed the judgment of the district court.

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

 

Conducting an administrative hearing remotely via WebEx teleconferencing during the COVID pandemic

In this CPLR Article 78 action plaintiff [Petitioner] sought a judicial annulment of a decision by the New York State Department of Motor Vehicles Administrative Appeals Board affirming an adverse determination of an Administrative Law Judge.

The Appellate Division explained that "In order to annul an administrative determination made after a hearing, a court must conclude that the record lacks substantial evidence* to support the determination", citing Matter of Khan v New York State Dept. of Motor Vehs., 215 AD3d 844, and Matter of Lau v NYC DOB, 209 AD3d 858.

Addressing Petitioner's challenge to the administrative hearing having been conducted remotely via a WebEx teleconference during the recent COVID pandemic, the Appellate Division opined that, contrary to the Petitioner's contention:

1. "The Administrative Law Judge did not abuse her discretion by denying Petitioner's untimely request for an adjournment made during the course of the scheduled hearing; and

2. "There is no merit to Petitioner's contention that any purported procedural errors made by the ALJ in conducting the hearing, 'including holding the hearing which took place during the COVID pandemic via WebEx teleconference,' violated certain of his rights, nor has he demonstrated any prejudice that resulted therefrom, that 'so permeate[d] the underlying hearing ... to render it unfair'".

* The Appellate Division note substantial evidence is such relevant proof as "a reasonable mind may accept as adequate to support a conclusion or ultimate fact" and substantial evidence is a minimal standard that requires "less than a preponderance of the evidence" and "demands only that a given inference is reasonable and plausible, not necessarily the most probable".

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

 

 

Employer Resources for New York State Paid Family Leave posted by the NYS Workers’ Compensation Board

Since first launching in 2018, New York State Paid Family Leave (PFL) has provided critical benefits to improve the lives of hundreds of thousands of working New Yorkers and their families. As the Board looks ahead to 2024, there are exciting updates to share!

New! 2024 employee contribution rate and weekly benefit

Good news! Employees will be paying less for PFL in 2024. The employee contribution rate will decrease to 0.373% of an employee’s gross wages each pay period, capped at an annual maximum of $333.25. This is $66.18 less than 2023. Employers may begin taking deductions at the new rate starting January 1, 2024.

Additionally, the maximum weekly benefit for employees taking PFL will rise to $1,151.16 for leave that begins on or after January 1, 2024. This is about $20 more per week than 2023.

Employer resources

New York State has a created several resources to help employers communicate Paid Family Leave updates to your employees.

• Model Language for Employee Materials – Updated for 2024 – provides model language you can use, either in an employee handbook or other written materials, and customize based on your PFL policies and procedures.
• Employee Notice of Paid Family Leave Payroll Deduction for 2024 – a template you can use to tell employees what their expected payroll deduction will be.
• Statement of Rights for Paid Family Leave – outlines employees’ PFL rights and steps to apply.
• PFL At-A-Glance – provides a snapshot of the benefit, along with information on who can request PFL and how.

New York State offers complete details on PFL at PaidFamilyLeave.ny.gov, including a special page with updates for 2024, where you’ll find the above employer resources along with frequently asked questions and other information. You can also view the employer page of the website for additional resources.

Employer webinars

In October, the NYS Workers’ Compensation Board hosted a Paid Family Leave webinar for employers and HR professionals. If you weren’t able to attend, you can view the recording or access the slides.

On Tuesday, December 12 at 12:00pm, the Board will be hosting a Q&A webinar for employers and HR professionals, where we’ll review the most frequently asked questions, and leave time to answer questions live. More information, and the link to join, is on the webinar page.