Selected links to items focusing on government operations posted on the Internet during the week ending March 15, 2024

4 Ways AI Can Enhance Justice This thought leadership paper details how artificial intelligence (AI) and machine learning (ML) can improve court systems and the judiciary in four areas: timeliness, access, fairness and effectiveness. DOWNLOAD

 

AI Being Used to Create Porn Featuring Images of Minors Celebrities aren't the only victims of deepfakes and revenge porn. With more children being exploited, states are tightening laws. READ MORE

 

AI in Hiring: Can It Reduce Bias? As governments increasingly fold artificial intelligence into their hiring processes, the question emerges: Does AI increase or reduce bias? Some experts argue that, when implemented responsibly, it reduces bias and directs a focus on skills. READ MORE

 

Alabama Releases Millions to Support Broadband Work Contracts and federal grant monies aim to rapidly bring high-speed Internet to many of the state’s 67 counties. The developments follow last-mile broadband work paid for by more than $82 million in state funding. READ MORE

 

Amid Scramble for Final ESSER Funds, an Unorthodox Suggestion: Drones Reusable, durable technology that has a long shelf life of technical support, one vendor says, could have a leg up in the liquidation approval process. Remaining ESSER money must be earmarked by Sept. 30. READ MORE

 

Body Cam Seller Halo, Seeking to Expand Presence, Raises $20M The company sells subscription-based offerings to law enforcement but, like Axon, wants to build sales in other industries such as health care and retail. With its Series A funding round closed, AI and hiring are also on Halo’s to-do list. READ MORE

 

Building the Child-Care Workforce We Need Pay and benefits are important, but a better-trained, more professional workforce is crucial as well. State child-care administrators and agencies are key to making it happen. READ MORE

 

California Ranks as State With Most Ransomware Attacks in 2023 Plus U.S. social media rankings, the 60 football field-sized data centers worth $25 billion coming to Arizona and Chipotle's pilot for a robot to make its guacamole. READ MORE

 

Charging, Cost Still Roadblocks to EV for Ride-Hail Drivers Despite electric vehicles’ lower operational costs, a lack of charging access and purchase incentives still creates obstacles for taxi and ride-hailing drivers. Advocacy groups and public agencies hope to stimulate improvements. READ MORE

 

Colorado Exempts Lawmakers from Parts of Open-Meetings Law Gov. Jared Polis signed a bill that will allow legislators to discuss public business in small groups, or so-called serial meetings, and lawmakers will not have to announce them publicly. The law went into effect immediately. READ MORE

 

Complimentary Tabletop Exercise: Violent Intruder Emergencies Prepare for violent intruder emergencies with this engaging tabletop exercise hosted by emergency management experts from OnSolve and PreparedEx. REGISTER NOW

 

'Dark Money' Group Sent Misleading Mailers in Local Ohio Races Make Liberty Win sent mailers throughout Ohio attacking Republican incumbents and sowing confusion among voters. READ MORE

 

DDoS Cyber Attack Hits Alabama State Sites A state spokesman says all normal business operations have been restored. Meanwhile, the hacktivist group, Anonymous Sudan, is claiming credit for the attack through statements on its Telegram channel. READ MORE

 

Deadline Driven: State and Local Govts Should Mandate Zero Trust Federal agencies must transition to zero-trust cybersecurity postures by September of this year. Establishing a similar deadline for state and local agencies would spur action to lock down systems. READ MORE

 

Deliver Excellent Government Agency CX Build trust, unity, and engagement through transformative CX. LEARN MORE

 

Digital Evidence Management: Another Way AI Can Help Veritone on Tuesday launched a digital evidence management system that uses artificial intelligence for object recognition, redaction and other tasks. It comes in a time of big projected growth for evidence management tech. READ MORE

 

Digital IDs Are Here, But Where Are They Used and Accepted? While millions of Americans have opted to use mobile IDs that can be carried on a phone instead of physical identification in a wallet, many businesses and agencies, including law enforcement, don’t yet accept them. What needs to happen next? READ MORE

 

Do You Trust Your Mass Notification Capabilities? When It Counts the Most, Be Confident in Your Emergency Notifications GET THE eBOOK

 

Eliminating Income Taxes Would Be an Expensive Giveaway Getting rid of personal income taxes entirely, which several states are considering, would gut services and shift taxes onto those least able to afford them. READ MORE

 

E-Procurement Firm MDF Commerce, Take It Private The deal comes amid a period of growth for MDF, which recently began working with the state of Hawaii. KKR’s $189 million plan, still subject to shareholder approval, reflects the growing presence of private equity in gov tech. READ MORE

 

Europe’s AI Act Adopted: What U.S. Governments Can Learn The European Parliament held a vote on the EU AI Act Wednesday in which a majority of members voted to adopt the regulation — marking the establishment of a model in artificial intelligence regulation for governments worldwide. READ MORE

 

Federal Cyber Agency Offlines 2 Systems After Ivanti Hack CISA, which had previously issued warnings about hackers exploiting zero-day vulnerabilities in certain Ivanti products, now says that it has had its own systems compromised. READ MORE

 

Finalists for WGU's Ed-Tech Accelerator Focus on AI, Accessibility Competing at a national summit next month, the first five new companies recognized by Western Governors University Labs’ Accelerator Pitch Competition address critical challenges in education. READ MORE

 

Florida Real-Estate Investors Clog Courts and Are Quick to Evict A total of 10 corporate investment companies own approximately 20 percent of single-family rentals in Pinellas and Hillsborough counties. Eight of the companies have eviction rates far outpacing the county’s average. READ MORE

 

Free Template: Crisis Management and Communications Plan Rely on a structured, proven, preestablished crisis management and communication plan designed specifically for your municipality. DOWNLOAD THE TEMPLATE

 

Free Virtual TTX: Violent Intruder Preparedness Join other emergency managers for an engaging and impactful tabletop exercise to learn best practices to be prepared for violent intruders within your organization. REGISTER NOW

 

Georgia Proposes ID Verification for Website Access Proposed legislation would require users of some websites to submit personal identification before gaining access to sites that contain “material harmful to minors,” focusing on sexual activity. READ MORE

 

Hedra Operator Workspace Maestro - A Secure Control Room Solution Take control of your critical data to consolidate multiple displays for better focus, workflow, and ergonomics. LEARN MORE

 

How Are Higher Ed Instructors Using GenAI Today? While ChatGPT remains king in terms of GenAI tools used by college professors to create content and guide lessons, other tools are emerging for specific purposes such as transcription, coding and making presentations. READ MORE

 

How Chicago Simplified its Building Permit Program Each year, thousands of Chicago's residents and businesses undertake minor projects that require a permit from the Department of Buildings, fueling the need for a simplified, streamlined online process for applying and approving projects. Express Permits account for one-third of Chicago's building permits, but until recently the city lacked an efficient way to process them. That changed in November 2023, when DOB migrated Express Permits onto the city's existing enterprise plat. DOWNLOAD

 

How Texas Colleges Are Preparing Students for AI Careers The University of Texas at San Antonio intends to launch one of the nation's first colleges devoted to AI and cybersecurity next year. READ MORE

 

Is Bail Reform Soft on Crime? Not When Done Well. Evidence-based changes focused on fairness and effectiveness make for safer communities, better uses of government resources and protection of individual freedom. Some states’ policies can serve as guideposts. READ MORE

 

La Mesa, Calif., Suspends Virtual Comments After Zoom Bombs La Mesa, which is near San Diego, has temporarily suspended public comments via Zoom following a rash of antisemitic hate speech during last month's City Council meeting. READ MORE

 

Local Agencies Hand Out More Than $1 Billion in Tax Breaks Across New York Authorities known as industrial development agencies hand out nearly $11 billion worth of subsidies each year. READ MORE

 

Major Cities Continue to Lose Population While the South Gains Although population losses have slowed in most major cities, they haven't stopped. New York has lost nearly a half-million people since the start of the pandemic. READ MORE

 

Mandatory Election Recounts Now Law in Hawaii Hawaii already had a recount law in place, but now recounts are mandatory whenever the margin is as little as 100 votes. READ MORE

 

Massachusetts Gov Seeks Pardons for All Marijuana Misdemeanors Gov. Maura Healey called for a blanket pardon on Wednesday. A few contemporary governors have made far more use of their pardon power than recent predecessors. READ MORE

 

Mini Electronic 'Force Stickers' Aim to Improve Medical Implants Comprising very thin capacitors and RFID chips that track change in the force exerted on whatever object they're affixed to, force stickers could track wear and tear on artificial joints or even industrial equipment. READ MORE

 

Missouri House Speaker Faces Ethics Investigation Dean Plocher faces two ethics hearings this week. The speaker has sought to promote particular vendors outside the normal procurement process. READ MORE

 

MIT Program Fosters Early AI Education for Future Workforce The Responsible AI for Social Empowerment and Education program at MIT develops curricula for K-12 students to give students hands-on experience with AI and robotics can do from an early age. READ MORE

 

Modernizing Services and Driving Efficiency in Oklahoma Oklahoma CIO Joe McIntosh explains how his agency is overhauling its core services and empowering staff to do their jobs to the fullest. Plus, he shares what he's working on as head of the state's AI task force. READ MORE

 

Muni Bond Games and the IRS’ Lurking Arbitrage Vampires Today’s interest rates may tempt public financiers to try to play the spread between tax-exempt and taxable bond yields. That invites heightened federal scrutiny, but there are some strategies likely to avoid the bite of the IRS. READ MORE

 

New Caltrans Application Puts Equity on the Map The Transportation Equity Index tool from the California Department of Transportation identifies key equity variables to aid in the evaluation of transportation projects. It's a web mapping application with several layers of data overlaid. READ MORE

 

New Jersey Issues First-of-Its-Kind Report on COVID-19 Response New Jersey is the only state to commission an independent review of its COVID-19 actions. The 900-page report details the effects on public health infrastructure and recommends changes to prevent the state from being blindsided again next time. READ MORE

 

New Jersey Takes Stock of Cybersecurity Threats, Protections With a new threat assessment report, state CISO Michael Geraghty recently raised warnings about cyber attacks with systemic impacts, geopolitical hacktivism and more. READ MORE

 

New Research: How Outdated Business IT Is Holding States Back You can’t serve the public effectively with manual processes and obsolete technologies. This is especially true in government, where business applications for functions like budgeting, procurement, payments, permitting and grants management are long overdue for replacement. READ MORE

 

New York's State Comptroller Thomas P. DiNapoli announced Contracts by the Numbers, a new web page with a dashboard that expands the procurement search tools provided in Open Book New York. This new tool lets users perform more robust searches on state agency and public authority contracts, including identifying who has the biggest and most contracts with New York state.

 

One City’s 911 Calls Come Mostly from a Single Stretch of Road Kennewick, Wash., police officers were called to a single avenue more than 280 times to address a range of issues, from loitering to assaults. Officials voted to rezone the area. READ MORE

 

Online Government Services Need a 'Human Copilot' Despite progress toward digital services, people are still getting left on the outside looking in. For those having trouble navigating online government, connecting with staff for assistance might be the answer. READ MORE

 

Opinion: Cyber Siege on U.S. Industries Threatens Higher Ed From the SolarWinds hack to the more recent, serious disruptions of Microsoft and Change Healthcare, cyber attacks on industries that do business with universities create vulnerable points of entry for cyber criminals. READ MORE

 

Opioid Deaths Spur Push for Kids to Carry Naloxone Maryland students are already allowed to carry the drug to combat opioid overdoses, which are spiking among young people. A bill would set standards and outline expectations for students. READ MORE

 

Police Agencies ‘Don’t Know What They Don’t Know’ About Tech Making Mobile Data Terminals in police cars more useful by allowing them to be used for drivers’ license scanning, photos and data collection for evidentiary purposes is within the scope of what agencies should be doing. READ MORE

 

Rapid Response Team Helps State Courts Navigate AI A team of state court administrators and chief justices, supported by the National Center for State Courts, is developing resources to help courts address AI by deciding their own approaches. READ MORE

 

Raptor Partners With Alertus for Panic Buttons in Schools The Texas-based Raptor Technologies is teaming up with Alertus Technologies, which provides mass notification and emergency communication services, to connect wearable panic buttons to emergency notification systems. READ MORE

 

Sacramento's Mixed Experiment With a Sanctioned Homeless Encampment Last year, the city gave a lease to a homeless encampment. Although that created some autonomy, it certainly didn't solve the problems faced by its residents. READ MORE

 

Senator Calls for Emergency Funds for Hospitals Amid Cyber Attack Following a massive cyber attack against health-care providers across upstate New York, U.S. Sen. Charles Schumer is calling for financial relief for providers impacted by the attack. READ MORE

 

So Revolutionary, It Deserves Two Mic Drops The Microflex® Wireless neXt system is a 2 channel, all-in-one wireless audio solution for conferencing and presentation in hybrid classrooms, training rooms, and lecture halls. LEARN MORE

 

Texas Has Had the Most Power Outages Over Past 5 Years Since 2019, the state has experienced 263 outages, each lasting an average of 160 minutes and impacting an estimated 172,000 Texans. During Texas’ deep winter freeze in 2021, there were 47 outages. READ MORE

 

The Art of Resident Relationship Management This whitepaper from CivicPlus details how public sector agencies can leverage a 311 CRM system to drive personalized and meaningful resident interactions. DOWNLOAD

 

Updated Airbnb City Portal Widens View on Rental Compliance The refreshed metrics dashboard offers more insights into vacation rental compliance and tourism metrics. It lets officials get a sense of where travelers hail from and how much they’re spending — but also which properties may not conform. READ MORE

 

Using HHS Data and Best Practices to Change Lives This thought leadership paper covers three major best practices, along with corresponding real-world examples, around how to use data more effectively for health and human services programs. The paper also explains the value of cloud-based tools for data transformation. DOWNLOAD

 

What’s Driving Congestion Pricing in (Some) American Cities? Faced with increasing traffic and declining gas tax revenue, policymakers and city planners are taking another look at dynamic pricing. If you love buying airline and concert tickets, they have got a deal for you. READ MORE

 

What’s New in Digital Equity: A Look at New Legislation Plus, more states see their digital equity plans accepted, the National Digital Inclusion Alliance unveils a low-cost plan model as an alternative to the ACP, and more. READ MORE

 

Which California Counties Are Most at Risk for Wildfires? FEMA collected data in March 2023, and using risk assessments, created a map that shows the counties that are most at risk for wildfires. FEMA looked at community resilience and how well people prepare. READ MORE

 

New York State Comptroller releases municipal and school audits

On March 14, 2024, 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 both the summary and the complete audit report

Town of Guilford – Budgeting (Chenango County)

The board did not develop realistic budgets. Estimated revenues were underestimated and appropriated fund balance was not used, resulting in unrestricted fund balance in the general and highway funds that exceeded the town’s fund balance policy limit. Actual revenues exceeded estimated revenues by an average of $210,000 (42%) in the general fund and $180,000 (17%) in the highway fund. The board adopted budgets that planned for using $228,000 of fund balance to offset projected operating deficits in the general fund. Instead, the general fund incurred operating surpluses each year for a combined total of $378,991. Therefore, appropriated fund balance was not used as intended. In addition, unrestricted fund balance for the general and highway funds exceeded the maximum allowable limit per the town’s policy ranging from $464,000 to $709,000 in the general fund and $168,000 to $225,000 in the highway fund.

 

Valley Stream Union Free School District Thirteen – Disbursements (Nassau County)

The board and treasurer did not appropriately and securely execute check signatures for non-payroll checks between July 1, 2021 and June 30, 2023. Although the checks reviewed were disbursed for what appear to be legitimate district purposes, when the treasurer does not maintain control of his electronic signature, there is an increased chance of unauthorized checks being signed. In addition, although the board did not authorize the treasurer to sign district checks with an electronic signature, the treasurer used an electronic signature to sign 3,621 non-payroll checks totaling $26.7 million. The treasurer did not maintain custody or supervise the use of his electronic signature, and he remotely signed 615 checks totaling $4.8 million.

 

Rockville Centre Union Free School District – Information Technology (IT) (Nassau County)

District officials did not monitor users’ compliance with the district’s acceptable Internet use policy (AUP). Of the 37 network users reviewed: Fifteen network users (41%) accessed websites, such as shopping, entertainment, online gambling and social media, on district computers although the district’s regulations for AUP state that personal use is prohibited. As a result, the likelihood that a user’s Internet browsing exposes the district to malicious software that may compromise data, confidentiality, integrity or availability is increased. Fifteen network users (41%) did not have signed forms acknowledging they received and reviewed the district’s AUP. This diminishes accountability and the district’s ability to protect district computers and the data contained therein. Also, six nonstudent network users (22%) did not receive IT security awareness training. As a result, the risk that users will not understand their responsibilities and put personal, private and sensitive information on district computers at greater risk of misuse or loss is increased.

 

Chittenango Central School District – Information Technology (Madison County)

District officials did not adequately manage nonstudent network and local user account access or develop an information technology (IT) contingency plan. As a result, the district’s IT system and its personal, private and sensitive information may be accessible to unauthorized users. Officials also have less assurance that, in the event of a disruption or disaster such as a ransomware attack, employees and other responsible parties would be able to react quickly and effectively to help resume, restore, repair and/or rebuild critical IT systems or data in a timely manner. In addition, auditors determined that 89 (15%) of the district’s nonstudent network user accounts were no longer needed and should have been disabled and 11 of 21 local user accounts (52%) reviewed on 12 district computers were no longer needed.

 

An employer's unilateral termination of a past practice providing employees a benefit held an improper employer practice within the meaning of the Taylor Law

Supreme Court, among other things, dismissed the CPLR Article 78 filed by Rockland County [County] to review a determination of the Public Employment Relations Board [PERB] finding that County had committed an improper employer practice.

For over a decade the certain employees of the County were allowed to obtain prescription medications at no cost or copay when prescriptions were filled at a particular pharmacy. This benefit remained in place even after County switched from being self-insured to being a participant in the New York State Health Insurance Program [NYSHIP]. When the pharmacy closed, County rescinded the prescription drug copayment benefit and the employees commenced having to make copayments for their prescription drugs.

The employee's Collective Bargaining Representatives [Unions*] filed an improper practice complaint with PERB contending that County improperly terminated the benefit of providing full prescription drug coverage for employees. An Administrative Law Judge [ALJ] found that a past practice existed with respect to the prescription drug copayment benefit but agreed with County's contract reversion defense argument** and dismissed the improper practice charges. 

Considering the Unions' administrative appeal, PERB reversed the ALJ's ruling in part, agreeing with the ALJ that a past practice existed but rejected the ALJ's acceptance of the County's contract reversion defense. Accordingly, PERB directed the employer to reinstate the prescription drug copayment benefit for all eligible  employees and the County commenced the instant CPLR Article 78 proceeding.

Addressing the County's contention that "providing employees full coverage for prescription drugs was not a past practice", the Appellate Division observed that when reviewing PERB's determination of a past practice made after a hearing a court must assess whether substantial evidence supports the determination.  In the words of the Court, "PERB found, and the record confirms, that, since 1989, the subject employees did not pay a copayment for prescription drugs and that, even though the County switched from being self-insured to utilizing an insurance plan for employee coverage, this did not change the fact that employees did not have to pay a copayment" and substantial evidence supports PERB's determination that a past practice existed.

Citing Kent v Lefkowitz, 27 NY3d 499, the Appellate Division affirmed PERB's rejection of County's contract reversion defense, explaining "Duty satisfaction occurs when a specific subject has been negotiated to fruition and may be established by contractual terms that either expressly or implicitly demonstrate that the parties had reached accord on that specific subject".***

Although the County's interpretation of the collective bargaining agreements limited its obligations only to the payment of health insurance premiums, PERB found there is nothing in the collective bargaining agreements that discusses the issue of copayments for prescription drugs and there is nothing in the collective bargaining agreements making it reasonably clear that County would not provide the prescription drug benefit. Noting that PERB had concluded the collective bargaining agreements did not explicitly refer to the plan description. and there was no language in the collective bargaining agreements referring to the plan description so as to identify that plan description beyond all reasonable doubt, the Appellate Division opined that the County's "reliance on the doctrine of incorporation is unavailing". Accordingly, the Appellate Division held that PERB is entitled to enforce its remedial order and Supreme Court correctly granted PERB's counterclaim.

* The Superior Officers Council of the Sheriff's Corrections Officers Association of Rockland County and the Rockland County Sheriff's Deputies Association.

** The Appellate Division noted that "Under contract reversion, a form of duty satisfaction, if the parties have reached an agreement on a specific subject following negotiations, a party can end an inconsistent past practice by reverting to the terms of the negotiated provisions relative to that subject."

*** Addressing contract reversion, a form of duty satisfaction, the Appellate Division said "if the parties have reached an agreement on a specific subject following negotiations, a party can end an inconsistent past practice by reverting to the terms of the negotiated provisions relative to that subject" and its was the County's burden to show that "the parties have negotiated terms in an agreement that are reasonably clear on the specific subject at issue".

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

 

State Division of Human Rights' award to a former employee for mental anguish, humiliation and lost wages, plus counsels fees and the imposition of a civil fine on the former employer sustained by the Appellate Division

The New York State Division of Human Rights [SDHR] found that Petitioners discriminated against a former employee [Employee] "based upon her familial status, gender and disability by failing to provide her reasonable accommodations and concluded that [Employee] was constructively discharged from her employment." SDHR imposed a civil fine against Petitioners and awarded Employee monetary damages for mental anguish, humiliation and lost wages. SDHR also awarded Employee counsel fees.

Petitioners thereafter commenced a number of proceedings pursuant to Executive Law §298 seeking annulment of SDHR's determination. SDHR and Employee separately cross-petitioned for, among other things, enforcement of SDHR's determination.

Here Petitioners challenge SDHR's finding that they constructively discharged Employee, arguing that Employee never alleged or proceeded with a theory of constructive discharge and, therefore, their due process rights were violated because they could not adequately defend against a claim of which they had no notice. Citing Block v. Ambach, 73 NY2d 323, the Appellate Division observed that "In the administrative forum, the charges need only be reasonably specific, in light of all the relevant circumstances, to apprise the party whose rights are being determined of the charges against [it] and to allow for the preparation of an adequate defense". 

The court explained that while "the complaint may not have explicitly alleged that [employee] was discharged, it did apprise [Petitioners] that they took adverse action against her in the form of her termination of employment". The complaint also noted that Petitioner denied Employee an accommodation, and the circumstances leading to her discharge, whether active or constructive, were explored during the administrative hearing. The court the opined that Petitioners' "due process rights were not violated."

"Constructive discharge," said the Appellate Division, "occurs when the employer, rather than acting directly, deliberately makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation".*

In the words of the Appellate Division, "Under certain circumstances, the denial of an accommodation can support the finding that working conditions became so intolerable to a reasonable person so as to lead that person to involuntarily resign ... [c]ourts may not weigh the evidence or reject [SDHR's] determination where the evidence is conflicting and room for choice exists." Thus, in view of SDHR's expertise in assessing discrimination claims, "SDHR's determinations are entitled to deference."

Turning to the issue of damages, the Appellate Division, noting that SDHR awarded Employee $20,000 for mental anguish and humiliation and $45,280 in lost wages, observed that SDHR also imposed a $10,000 civil fine against Petitioners and awarded Employee counsel fees in the amount of $38,548.62, decided that as "SDHR's award for mental anguish and humiliation was reasonably related to the wrongdoing, was supported by substantial evidence and is similar to other awards, it will not be disturbed" and there is no basis exists to disturb the civil fine, the award for lost wages or counsel fees.

* See Morris v Schroder Capital Mgt. Intl., 7 NY3d 616.

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

 

Applying the appropriate law in the course of litigation

Plaintiff brought employment discrimination and retaliation claims pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., 42 U.S.C. §1981 (“Section 1981”), New York State Human Rights Law, N.Y. Executive Law, §290 et seq. (“NYSHRL”), and New York City Human Rights Law, N.Y.C. Admin. Code § 8-107 (“NYCHRL”) against her employer, her supervisor, and a coworker and officemate [Defendants].

After receiving a right-to-sue letter, she filed the instant lawsuit on January 17, 2020. The District Court ultimately granted the Defendants’ motion for summary judgment on all of Plaintiff's claims. Plaintiff appealed the District Court's ruling.

One the issues addressed by the Circuit Court of Appeals, Second Circuit, concerned the controlling law in this action.

Upon noting that New York had amended the NYSHRL in October 2019, five months after Plaintiff’s retaliation claims had accrued, and citing Majewski v. Broadalbin-Perth Central School District, 91 N.Y.2d 577, the Circuit Court said it would apply the prior version of the NYSHRL, as it was in effect when Plaintiff’s claims accrued. 

The Circuit Court explained “It is a fundamental canon of statutory construction that retroactive operation is not favored by courts and statutes will not be given such construction unless the language expressly or by necessary implication requires it.”

The Circuit Court affirmed the federal district court's ruling in part, vacated that ruling in part, and remanded the matter to the federal district court "for further proceedings".

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

 

New York State Comptroller DiNapoli releases municipal and school audits

On March 8, 2024, New York State Comptroller Thomas P. DiNapoli issued the following local government and school audits were issued.

Peconic Bay Community Preservation Fund (Suffolk County)

Town officials from all five towns (East Hampton, Riverhead, Shelter Island, Southampton, and Southold) ensured disbursements were proper and supported, and debt service payments were for legitimate Peconic Bay Community Preservation Fund purposes and properly allocated. However, Town of Riverhead officials did not always record dates collections were received or deposit payments in a timely manner.

 

Canajoharie Volunteer Fire Department – Financial Activities (Montgomery County)

Department officials did not ensure that financial activities were properly recorded and supported. As a result, the ability to make financial decisions was hindered and officials lacked the information necessary to provide an annual report. The treasurer did not: accurately record 86 transactions (23%) totaling $33,280 or provide timely monthly reports to officials for eight of the 13 months in the audit period; or prepare bank reconciliations. Adequate cash collection controls were not established and 48 deposits totaling $16,655 were not made in a timely manner. Auditors found 248 disbursements totaling $81,595 were not audited and approved before payment, and 111 disbursements totaling $19,650 were made by debit card, circumventing the ability to be audited and approved before payment.

 

Bellmore Union Free School District – Payroll (Nassau County)

District officials did not always approve, support and monitor overtime. As a result, overtime expenditures exceeded budgeted overtime by $49,576 during the audit period and officials increased the risk that employees may have been paid for unnecessary overtime. Auditors reviewed 169 overtime request forms and the associated time sheets for five facilities and transportation department employees who received overtime pay totaling $78,595 and determined that 100 forms lacked the reason officials paid overtime totaling $30,291. In addition, officials paid unapproved overtime totaling $2,176.

 

Town of Cobleskill – Budgeting (Schoharie County)

The board did not develop realistic budgets. Budgeted appropriations were overestimated in the town-wide (TW) general and highway funds, and estimated revenues were underestimated in the town-outside-village (TOV) highway fund resulting in operating surpluses totaling $677,000. Actual expenditures were less than appropriations by an average of $89,000 (15%) and $196,000 (26%) in the TW general and highway funds, respectively and actual revenues exceeded estimated revenues by an average of $112,000 (90%) in the TOV highway fund. As a result, much of the $424,000 of fund balance the board planned to use to fund projected deficits was not used and unrestricted fund balances increased to levels between 100% and 179% of the 2023 appropriations. In addition, the town’s preliminary budgets for the three fiscal years examined did not include fund balance estimates with a breakdown by fund as required.

 

Chateaugay Central School District – Nonresident Homeless Student State Aid (Clinton County)

District officials did not claim state aid totaling $145,164 for nonresident homeless students during the audit period because the superintendent was not aware that the district could claim this aid. As a result, district taxpayers will not benefit from state aid totaling $62,920 because the filing deadlines have passed. The district may also lose the remaining $82,244 in state aid if officials do not properly submit claims for reimbursement by June 30, 2024. District officials did not establish policies and procedures to ensure state aid was claimed for nonresident homeless students. Officials also did not complete and maintain designation forms and submit them to the New York State Education Department.

 

Brushton-Moira Central School District – Tuition Billing (Franklin County)

District officials did not properly bill tuition for nonresident foster care students enrolled in the district. As a result, as of Sept. 30, 2023, officials had not billed or underbilled $40,803 of the $71,192 (57%) in tuition it was entitled to and billed and collected $12,452 in tuition it was not entitled to for the 2019-20 through 2021-22 school years. District officials also did not provide oversight of the officials who prepared the tuition bills or establish adequate procedures to ensure tuition bills were prepared, accurately calculated and issued to the school districts of origin for all eligible nonresident foster care students.

 

Questar III Board of Cooperative Educational Services (BOCES) – Information Technology (IT) Hardware Asset Inventory (Statewide)

As of June 30, 2023, Questar BOCES had IT assets with an original cost of $28.5 million (44,305 items) accounted for in its inventory that were either purchased for a component school district or for use at Questar BOCES. Based on the auditors’ review, Questar BOCES officials properly accounted for all 817 IT hardware assets reviewed with a purchase value of $612,386 and ensured assets declared surplus were properly disposed.

 

 

Selected links to items focusing on government operations posted on the Internet during the week ending March 8, 2024

AI, Security, Sustainability: Public Sector Innovation at Google Cloud Next '24
Dive into hands-on workshops, inspiring keynotes, and 500+ sessions covering AI, security, citizen services, and more. Get exclusive discounts and network with fellow public sector peers! READ MORE

ANNOUNCING CDG-NACo’s Digital Counties Survey 2024 The Center for Digital Government and National Association of Counties invite all U.S. counties to participate in the Digital Counties Survey. DIGITAL COUNTIES SURVEY ONLINE

Best Practices for Strengthening Mobility and Connectivity with a Public-private Approach For agencies focused on service delivery, getting the right connectivity approach in place is essential to meet current and future demands of public service. LEARN MORE

BlackRock Investment Closes RapidSOS’ $150M Funding Round The closing of the Series C round, with $75 million from BlackRock, could drive further integration of AI into RapidSOS’ products. The company is now one of the “highest-funded businesses” in public safety, an industry observer said. READ MORE

California’s Telework May End If Program Goes Unfunded Gov. Gavin Newsom’s proposed budget for 2024-2025 does not include any funding for the state’s Telework Compliance Office, which oversaw the rollout of telework during the pandemic and maintains telework data. READ MORE

Can Going Modular Fix Our Housing Shortage? Not Yet. Modular houses assembled from factory-built components are cheaper to build and the governor of Colorado is all in on them. They won’t solve the housing problem but can be part of the solution. READ MORE

Chattanooga Transit Agency Developing Improved Operations Technology
Collaborations among transit agencies, research universities and big tech companies like Google are using AI and cloud computing to harness tech for operational efficiency. Projects aim for regional benefits. READ MORE

CISA: ‘No Specific or Credible’ Threats to Primary Elections A senior official said that a widespread social media outage on Tuesday appeared to be unrelated to the elections. By the afternoon, the disruption had mostly ended. READ MORE

College in Crisis: What Is IT’s Role During an Emergency? Chief information officers and their IT teams at colleges and universities have critical roles to play during an emergency, particularly when it comes to managing communications and campus security infrastructure. READ MORE

Colorado Senate Passes Bill Allowing Private Small Group MeetingsThe legislation would allow lawmakers to meet and communicate in groups small enough that they don’t constitute a voting majority of a committee or chamber, codifying practices that were longstanding prior to being challenged last year. READ MORE

Concern Over AI Interfering With Elections Remains Strong Elections officials and law enforcement officers are hashing out how to stop the threat by investigating who is behind the source and issuing correct information to the public. READ MORE

Could Tech Have Thwarted Pennsylvania Train Derailment? It’s unclear so far whether Positive Train Control, a technology that is deployed on railroad tracks to prevent such accidents, was in play during the March 2 incident and whether it would have stopped the derailment. READ MORE

Cybersecurity Event’ Delays County Utility Bills in Washington The Chelan County Public Utility District, which serves around 50,000 customers, said the incident kept a nationwide vendor from mailing and emailing statements last week. It’s unclear whether personal information was compromised. READ MORE

Deadline Driven: State and Local Govts Should Mandate Zero Trust Federal agencies must transition to zero-trust cybersecurity postures by September of this year. Establishing a similar deadline for state and local agencies would spur action to lock down systems. READ MORE

Digitizing Trash, Snow Services in Syracuse, N.Y.The Syracuse, N.Y., Office of Analytics, Performance and Innovation and its partnership with the Department of Public Works demonstrates the cascading effects of what happens when traditional services go digital. READ MORE

Elections Signal Return of ‘Tough on Crime’ Tuesday's election results demonstrated voter antipathy toward crime. Meanwhile, the field is set in the year's most competitive race for governor and Texas has gotten redder. READ MORE

Fact Sheet: Emergency and Routine Mass Notifications Expedite critical alerts, warnings, instructions, and routine updates so that you can keep citizens informed and safe in an emergency. DOWNLOAD THE FACT SHEET

Federal Cybersecurity Grants Vital for State, Local Collaboration States are allocating money from the State and Local Cybersecurity Grant Program toward training, multifactor authentication work and encouraging a move to .gov domains. But funding is currently set to run out in 2025. READ MORE

Florida Lawmakers Reject Extreme Heat Protections for Workers Miami-Dade introduced a first-of-its-kind policy that would require employers to provide water, rest and shade to outdoor workers on hot days. The Legislature quickly sought to pre-empt such rules. READ MORE

Hedra Operator Workspace Maestro - A Secure Control Room SolutionTake control of your critical data to consolidate multiple displays for better focus, workflow, and ergonomics. LEARN MORE

How to Cyber Secure a Modernizing, Greener Energy Grid As the U.S. continues to shift toward using more renewable energy sources, officials are starting to grapple with how to keep a changing infrastructure cyber secure.READ MORE

Human Brain Chip Implants: Helpful? Safe? Ethical? Major developments regarding implanting chips in human brains have been announced in 2024. Will this procedure become widespread? Are precautions — or even regulations — needed? READ MORE

In Texas, $1B Extra for Water Is Just a StartA new $1 billion fund will help Texas communities fix crumbling water infrastructure. Advocates say much more will be needed due to population growth and climate change. READ MORE

In the Show Me State, a New K-12 Transparency Tool Missouri launched a data visualization tool last month after educators and families repeatedly requested an easier way to view and understand student achievement and growth indicators for local schools. READ MORE

Is Now the Right Time for a Ransomware Payment Ban? Experts have long debated a nationwide ban on paying cyber extortionists. But any ban must be paired with measures to help targets improve defenses, cybersecurity experts say. READ MORE

Making AI Work for Government: It All Comes Down to Trust
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Missouri Considers ‘Anti-Red Flag’ Bill to Protect Gun Rights State lawmakers considered legislation that calls any federal order to confiscate firearms, gun accessories or ammunition a violation of a law-abiding citizen’s Second Amendment rights. READ MORE

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New Educational Enrichment Company to Promote STEM After School A new company that has already partnered with 1,100 schools aims to provide project-based learning and STEM activities like programming robots and developing computational skills outside of school hours. READ MORE

New Jersey Takes Stock of Cybersecurity Threats, Protections With a new threat assessment report, state CISO Michael Geraghty recently raised warnings about cyber attacks with systemic impacts, geopolitical hacktivism and more. READ MORE

New Jersey Works to Stay Nimble Amid Changing Tech Landscape CTO Chris Rein discusses the work of adjusting to a fast-evolving tech environment, as well as the progress his state has made on identity access and management, mainframe as a service and data sharing. READ MORE

New Research: How Outdated Business IT Is Holding States Back You can’t serve the public effectively with manual processes and obsolete technologies. This is especially true in government, where business applications for functions like budgeting, procurement, payments, permitting and grants management are long overdue for replacement. READ MORE

New York County Protests Using Farm Land for Solar Projects State lawmakers and local elected officials have spoken out against using farm land in Schoharie County for solar farm projects. The state aims to reduce its greenhouse gas emissions by 40 percent by 2030.  READ MORE

Opinion: Crafting a Vision and Creative Persona as a CIO Two of the most important jobs of CIOs in higher education are to have a vision and align it with the institution’s goals. Going on a listening tour is a good place to start, as it helps forge trust and relationships. READ MORE

Oregon Becomes 4th State With Right-to-Repair Law The state will now give consumers a legal right to fix their own home electronics and requires manufacturers to provide access to the tools, parts and manuals to repair them. Oregon’s law goes further with its protections than other states’ rules. READ MORE

Oregon Pursues Natural Solution to Reducing Emissions The pilot release of a first-of-its-kind mapping tool is a step toward understanding carbon storage in Oregon estuaries, supporting long-term goals to preserve them. READ MORE

Rhode Island Creates AI Task Force, Data Centers With an executive order Thursday, Rhode Island Gov. Dan McKee called for creation of an Artificial Intelligence Task Force and centers of excellence for AI and data. Goals include operational efficiencies and improved service delivery. READ MORE

Santa Fe’s 911 Center Slowly Fills Huge Staff Vacancies Two years ago, vacancy rates at the Santa Fe Regional Emergency Communications Center climbed to more than 65 percent. Since then, the number of unfilled positions has declined, though gaps remain. READ MORE

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

State Gaming Board Replatforms After Cyber Incident The Nevada Gaming Control Board worked with the Nevada Office of the Chief Information Officer to move its website to a new platform, after a cyber incident in late January. An investigation found no personal information was accessed. READ MORE

States Invest to Save Rural Grocery StoresLawmakers hope grant and loan programs can help small towns keep their markets open. READ MORE

Tennessee Bill on AI in Schools: A Hint of What's to Come? Sen. Joey Hensley said his legislation allows public K-12 districts and universities to make their own choices regarding if and how artificial intelligence should be used for learning, pending state approval. READ MORE

The National Association of State Chief Information Officers released a report Wednesday examining data literacy in state government. All state employees must have a “certain minimum level of understanding of data,” it said. READ MORE

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Treatments Resume After Alabama Gov Signs IVF Protection Bill Gov. Kay Ivey signed a bill that provides legal immunity to doctors and patients undergoing IVF treatment. However, the new law does not address the state Supreme Court’s recent ruling that frozen embryos are considered people. READ MORE

TroutSpotter App Uses AI to Track Coldwater Fish Populations The free app that identifies and tracks individual fish will launch in the spring through tu.org, allowing the national nonprofit to put its members to work helping researchers spot trends in coldwater fish populations. READ MORE

Using HHS Data and Best Practices to Change Lives This thought leadership paper covers three major best practices, along with corresponding real-world examples, around how to use data more effectively for health and human services programs. The paper also explains the value of cloud-based tools for data transformation. DOWNLOAD

Utah Bills Would Let Parents Sue Social Media Companies
Amendments to the Utah Social Media Regulation Act would allow lawsuits if it can be proven that “addictive social media algorithms” contributed to the worsening of a child’s mental health. Related laws have been stopped in two other states. READ MORE

Washington State Lawmakers Approve AI Task Force Bill
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Why Are Florida GOP Lawmakers Targeting Community ID Cards?Legislators are supporting a bill that would prohibit county and municipal governments from accepting IDs or documents provided to undocumented individuals by community programs. READ MORE

Will Newsom’s $16B Water Tunnel Destroy California’s Delta? The Delta Conveyance Project is a 45-mile tunnel that would run beneath the delta and move more water from Northern California to cities further south. Opponents worry about the tunnel’s impact on the delta’s fragile ecosystem. READ MORE

Wyoming Interim CIO TR Sheehan Focused on Meeting Residents’ Needs Sheehan, a long time Wyoming executive serving for a second time as interim CIO, is working to understand what citizens need from their government and providing them with technology-based solutions to do just that. READ MORE

New York State's public and private colleges and universities may face significant challenges in the years ahead

A new report by New York State Comptroller Thomas P. DiNapoli highlights the challenges New York’s higher education sector is facing, including a looming enrollment cliff, growing costs of attendance, and rising student debt. The report examines both public and private institutions of higher education. The Comptroller's report is posted on the Internet at Higher Education in New York: Evaluating Competitiveness and Identifying Challenges

City school district superintendent pleads guilty to public corruption

State Comptroller Thomas P. DiNapoli, Oneida County District Attorney Todd Carville, and the New York State Police today announced long-time superintendent of the Utica City School District (UCSD), Bruce Karam, pleaded guilty to the felony charge of public corruption for using taxpayer funds to help support a political campaign relating to the 2021 Utica City School Board election and a non-school related fundraiser. As part of the plea agreement, he will serve five years of probation, pay restitution of $12,000, complete 250 hours of community service and agreed to a consent order to reduce his pension benefits.

“Karam took vital funds meant to support the education of students and instead used them to serve his own needs,” DiNapoli said. “As a consequence of his actions, he is now a convicted felon and has been held accountable for his crimes. I thank District Attorney Carville and the State Police for their partnership in rooting out public corruption.”

District Attorney Carville said: “It is imperative that local leaders understand the responsibility and trust that the public has in the work they do. Those who chose to abuse that trust are not fit to serve and will be held accountable.”

New York State Police Acting Superintendent Steven G. James said: “This case demonstrates the hard work of all our law enforcement partners who are focused on the same goal – holding those who break our laws accountable. Mr. Karam violated the public trust by stealing taxpayer money intended to provide a quality education for students at the Utica City School District. I commend the diligent work of our State Police members, our partners at the State Comptroller’s Office and the Oneida County District Attorney’s Office, for their hard work in putting an end to this dishonest act.”

Karam and a co-defendant, former Utica Mayor and UCSD School Board President Louis LaPolla, were arrested in November 2023. Comptroller DiNapoli’s Office, the district attorney, and the State Police determined that Karam was using taxpayer money and school resources including labor, stamps, envelopes, and other supplies to send election mailers in support of a school board candidate.

He was also accused of using school resources to send invitations for a non-school related fundraiser for a purported charity run by LaPolla. Fundraiser fliers for the charity were inserted by school district employees during school hours in envelopes the school district paid for and were mailed using the district’s stamps.

Karam served as UCSD superintendent from 2011 until he was put on leave in October 2022. He was fired by the school board shortly after his arrest.

Karam pleaded guilty in Oneida County Court before Judge Michael L. Dwyer and is to be sentenced on April 19. LaPolla’s next court date is April 10. The consent order will be filed by the district attorney in Oneida County Supreme Court.

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 filing a complaint online at  https://www.osc.ny.gov/investigations, by calling the toll-free Fraud Hotline at 1-888-672-4555, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

 

Submitting appeals to the Commissioner of Education

§275.8(a) of the Regulations of the Commissioner of Education [4 NYCRR §275.8(a)] requires that the petition setting out an appeal to the Commissioner be personally served upon each named respondent.  

In the event a school district is named as a respondent, service upon the school district is to be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service.

In this instance the Petitioner attempted to effectuate service of an appeal to the Commissioner on the named respondent by mailing the petition to the New York State Education Department. 

The Commissioner ruled that the appeal must be dismissed for failure to personally serve the only "named respondent", the Board of Education of the school district.

Click HERE to access the decision of the Commissioner of Education posted on the Internet.

Setting aside a decision denying an application for accidental disability retirement benefits resulting from a "tie vote"

The Board of Trustees of the New York City Police Pension Fund, Article II, [Trustees] rejected Petitioner's application for an accidental disability retirement [ADR] and approved Petitioner for an ordinary disability retirement [ODR] retirement benefit by a tie-vote.  Petitioner initiated a CPLR appeal challenging the Fund's decision. The Appellate Division sustained the Fund's determination, explaining the Petitioner "has not met her burden of establishing that the disability was causally connected to a line-of-duty accident".

The court noted that the denial of Petitioner's application for ADR was the result of a tie vote. Citing Matter Doorley v Kelly, 106 AD3d 554, the Appellate Division observed that a tie vote by the Trustees may only be set aside on judicial review if the court concludes that the applicant is entitled to the increased benefits as a matter of law based on the record because "the disability was the natural and proximate result of a service-related accident".

The court further opined that not every line of duty injury will support an award of ADR, as "an injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties, considered in view of the particular employment in question, is not an accidental injury".

In the words of the Appellate Division, "for ADR benefits to apply, there must be a precipitating accidental event, that is, a fortuitous, unexpected event". Observing that Petitioner testified that she had worked "in the subject intersection several times before without incident, that she had previously been made aware of the condition of the road by pedestrian complaints, and that on the day of her injury, she had been in the intersection at least 30 minutes before she took a misstep," the court concluded "it cannot be said that as a matter of law, [Petitioner's] fall was an unexpected and unforeseeable accident.

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

 

Applying burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792

Plaintiff brought this action in federal district court contending her employee organization [Union] declined to demand arbitration of her workload grievances relating to the size of the office space she was required to clean but acted upon a similar grievances advanced by a coworker who was not Hispanic. Plaintiff charged the Union with "unlawful discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. ('Title VII'); the New York State Human Rights Law, N.Y. Executive. Law §290 et seq. ('NYSHRL'); and the New York City Human Rights Law, N.Y. City Admin. Code §8-101 et seq. ('NYCHRL'); as well as violation of the Union’s duty of fair representation under the National Labor Relations Act ('NLRA'), 29 U.S.C. §151 et seq."

Upon conclusion of discovery, the Union moved for, and the district court granted, summary judgment in favor of the Union, determining that Plaintiff failed to show that the reason's the Union advanced for declining to file a grievance on behalf of Plaintiff "was pretextual, arbitrary, or taken in bad faith, or that the [Union's] decision was otherwise motivated by discrimination."

The United States Circuit Court of Appeals, Second Circuit [Circuit Court], viewing the federal district court's granting summary judgment de novo and viewing the evidence "in the light most favorable to [Plaintiff] as to 'whether genuine issues of material fact preclude judgment as a matter of law' ....” Also noting the Union withdrew the arbitration of the coworker’s grievance in the aftermath of the COVID-19 pandemic, the Circuit Court said "To the extent that [Plaintiff] challenges the district court’s determination that her duty-of-fair-representation claims were untimely," the Circuit Court said it would resolve those claims on the merits as follows:

Addressing Plaintiff's claim of Unlawful Discrimination Under Title VII and NYSHRL, the Circuit Court opined Title VII bars a Union from discriminating against its members because of, inter alia, race or national origin citing 42 U.S.C. § 2000e-2(c)]. "Under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792," Plaintiff must first establish a prima facie case of Title VII discrimination'by showing that:

"(1) she is a member of a protected class;

"(2) she is qualified for her position;

"(3) she suffered an adverse employment action; and

"(4) the circumstances give rise to an inference of discrimination."

Once Plaintiff establishes a prima facie case, the burden of going forward shifts to the Union to offer “some legitimate, nondiscriminatory reason” for the differing treatment. In the event the Union "offers such a reason for its actions, the burden shifts back to Plaintiff to demonstrate that the proffered reason was pretextual.

The Circuit Court ruled that the Union had satisfied this requirement.

Citing see Salamon v. Our Lady of Victory Hosp., 514 F.3d 217, 226 n.9, the Circuit Court noted that the Second Circuit had recognized that Title VII and NYSHRL discrimination claims are “analytically identical, applying the same standard of proof to both claims”, and that "the reasoning in this section applies to both claims". In this instance, explained the Circuit Court, no reasonable jury could find, based on the record evidence, find that the Union’s articulated reasoning was pretextual or that Plaintiff's race or national origin argument was a motivating factor in the Union’s decision-making.

Pointing out that Plaintiff had "acknowledged that the coworker’s floor was the largest in the building, lending support to the Union’s stated reason (supported by an affidavit from a Union attorney) for taking only the coworker’s claim to arbitration", while [Paintiff] pointed to "a troubling incident in which a Union official referred to her in a text message as a 'stupid Dominican' after a Union election", Plaintiff did not indicate how that statement was connected to the Union’s arbitration decisions.*

Further, the Circuit Court held that "the coworker was not an adequate comparator" because of the relative sizes of their respective assigned cleaning areas.

Accordingly, the Circuit Court held that "the district court did not err in granting summary judgment to the Union under both Title VII and NYSHRL.

Turning to Plaintiff's "Unlawful Discrimination Under NYCHRL" claim, the Circuit Court said that the Second Circuit has "recognized that courts must analyze NYCHRL discrimination claims 'separately and independently from any federal and state law claims'.” In the words of the Circuit Court, summary judgment may be appropriate under the NYCHRL “if no reasonable jury could conclude either that the defendant’s reasons were pretextual, or that the defendant’s stated reasons were not its sole basis for taking action, and that its conduct was based at least in part on discrimination.”

Focusing on Plaintiff's Fair Representation Under the NLRA argument, citing Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 387 (2d Cir. 2015) (quoting Vaca v. Sipes, 386 U.S. 171, 177 (1967), the Circuit Court opined that "the duty of fair representation is a 'statutory obligation,'" demanding that a union “serve the interests of all members without hostility or discrimination ... to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct". 

The duty of fair representation, said the Circuit Court, is breached where a union’s actions “with respect to a member are arbitrary, discriminatory, or taken in bad faith.”

Finding that the Union "offered a clear explanation for why its decision was neither arbitrary nor taken in bad faith", the Circuit Court observed that Plaintiff rejected the Union’s stated reasoning, but "offered no evidence supporting her assertion that the Union pursues fewer arbitration grievances raised by Hispanic workers than it does for non-Hispanic workers."

Opining that a reasonable jury could conclude that the Union’s decision was not arbitrary, irrational, or taken in bad faith, the Circuit Court affirmed the district court ruling, holding that the lower court "did not err in granting [the Union's motion for] summary judgment".

* Plaintiff, in her deposition, "did not assert that she thought that the [Union's] arbitration decision was connected to the Union election".

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