Selected links to items focusing on government operations posted on the Internet during the week ending April 5, 2024

8 Features of the Best Audit Management Software for Public Sector The shift to electronic working papers in the audit community fosters collaboration but inadvertently generates dark data. Audit management software offers solutions to access, analyze and maximize audit data's value. READ MORE

 

A Possible Future for Downtowns Out in the Suburbs Many center-city downtowns continue to struggle, but Americans, especially younger adults, still want walkability. READ MORE

 

AI for Everyone M365 Copilot is a set of tools that helps individuals, agencies, and organizations achieve more using AI. Bolster productivity with AI using the tools you already know and love. Try Microsoft Copilot 

 

Alarming Signs Ahead of ‘First Presidential Campaign’ of AI Era Experts point to the swift rise of artificial intelligence and generative AI, and its early use in political campaigns, as evidence it could be “weaponized to deceive voters or harm candidates” during the general election this fall. READ MORE

 

Amazon Makes Fresh AI Push With Accenture, Anthropic The effort is designed to appeal to the public sector along with banks, insurance companies and other organizations. Amazon and its partners want to bring new efficiencies and customization to the use of generative AI. READ MORE

 

App Helps First Responders Be Proactive About Mental Health The Alli Connect platform uses machine learning technology to help first responders connect with mental health professionals before their problems become severe and prioritizes user privacy. READ MORE

 

ARTIFICIAL INTELLIGENCE NEWSLETTER Be the first to learn about creative applications of artificial intelligence in state and local government. SUBSCRIBE TODAY

 

Australia’s Cyber Revamp. Proposed new laws and regulations aim to improve cybersecurity, after the country suffered wide-reaching incidents, per Dark Reading.

 

California Bill Would Create Multi-Partner AI Research Hub Artificial intelligence and cybersecurity are fertile ground for state lawmakers this session. Bills they also propose include making a joint risk analysis of generative AI and changes to the California Cybersecurity Maturity Metric. READ MORE

 

California Forever Planning Group Wins Big Against Farmers The Silicon Valley billionaires that are trying to build a utopian city in Solano County, Calif., won a key court decision. A judge refused landowners’ request to throw out a lawsuit accusing them of price fixing. READ MORE

 

California Releases Generative AI State Procurement Guidelines Developed by state agencies, the regulations are intended to assist entities and vendor partners on incidental and intentional GenAI procurements. Their release follows considerable state explorations in generative AI. READ MORE

 

California’s Unemployment Rate Is the Nation’s Highest In February, the state reached an unemployment rate of 5.3 percent, the highest in the country. Since 1976, California has created more jobs than any other state (9.7 million), accounting for 13 percent of all U.S. hires. READ MORE

 

Champ Titles Raises $18M as It Brings on More State DMVs Champ aims to be the big player when it comes to the digital title industry, with West Virginia the center of that push. The company continues to take on new clients, with at least two more states soon expected to use the company’s software. READ MORE

 

Connecticut Officials Vow to Close Loopholes in Disability Pension System State leaders promised a series of sweeping reforms to address problems in the disability pension system, just hours after the publication of a report highlighting poor management. READ MORE

 

Cybersecurity Maturity Metric. READ MORE

 

Cybersecurity Tabletop Exercises: How Far Should You Go? With global cyber threats and other international tensions growing, what scenarios should state and local governments consider when conducting exercises to test their people, processes and technology? READ MORE

 

Dallas-Fort Worth Expects $700M Bump from Solar Eclipse Experts predict that the celestial event could drive millions of dollars for local businesses, including a $179.8 million boost to the restaurant industry and $221.8 million for hotels. READ MORE

 

Election Systems Require Upgrading Ahead of Voting To protect voting outcomes, every step of the election process must be secure. Election machines are particularly vulnerable to cyberattacks because they’re network-connected and expand the attack surface of government entities. DOWNLOAD

 

Experts Predict an Extremely Active Hurricane Season This Year Researchers predict there will be 11 hurricanes, five of which will reach major hurricane strength, and 23 named storms due to a historically warm Atlantic Ocean and probable La Niña conditions. READ MORE

 

Federal Agencies Issue New Warning About DDoS Attacks As this specific type of cyber attack continues to spike, the federal government is calling for increased alert and defenses from state, local, tribal and territorial governments. READ MORE

 

From Food to Climate: Programs Threatened by California’s Shortfall With California facing a serious budget crunch, lawmakers may have to curb their policy ambitions in a variety of areas. Ahead of April tax collections, it’s not yet clear if proposed cuts will be deep enough. READ MORE

 

Gain Insight & Access to Key Resources That Can Help Fast-Track Your Cyber Goals Build resilience into your cybersecurity protections to help shield public-facing services from take down and operations from disruption. VIEW RESOURCES

 

Generative AI Use Proceeding Apace, Florida CISO Says State Chief Information Security Officer Jeremy Rodgers talked about the Sunshine State’s approach to artificial intelligence at a recent cybersecurity conference. A centralized legislative framework around AI does not yet exist, he said. READ MORE

 

GOVTECH CYBERSECURITY has rounded 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

 

Grand Traverse County, Mich., Targeted by Cyber Attack A spear phishing cyber attack against Grand Traverse County was stopped by security software before it damaged county computers or disrupted operations, officials report. READ MORE

 

Group Seeks Federal Funding Ban on AI-Powered Surveillance The NOTICE Coalition, on behalf 42 advocacy organizations representing various student groups, argued in a letter to the U.S. Department of Education that AI-powered security systems violate privacy and human rights. READ MORE

 

gWorks, Focused on Smaller Agencies, Buys Freedom Systems The acquisition is just the latest for the Nebraska company whose software is used by municipalities, utilities and special districts. Private equity helped make this deal possible, reflecting a larger gov tech trend. READ MORE

 

How a Modular Business Solutions Strategy Addresses Workforce Gaps State and local governments face ongoing workforce challenges, including budget constraints and difficulty competing with the private sector. Often, antiquated technology and outdated processes make it even harder to attract and retain new employees. READ MORE

 

How Did the Auto Industry Get the EV Adoption Timeline Wrong? Although electric vehicle sales grew by 50 percent last year, that is far below the 70 percent growth the industry had forecast. High costs, infrastructure access, charging concerns and grid reliability continue to dissuade drivers. READ MORE

 

How Inclusive Content Can Increase Resident Engagement Local government websites should be resident engagement tools, not digital brochures or org charts. We use intuitive navigation, smart search, and more for optimal self-service. DOWNLOAD NOW

 

How Public-Private Collaborations Can Fight Ransomware A new report looks at three major counter-ransomware collaborations between the public and private sectors, offering up a list of challenges along with some best practices. READ MORE

How States Are Addressing the High Cost of Housing Housing used to be primarily a local concern. With millions of units needed, state policymakers are exploring ways to boost supply. READ MORE

 

Identify & Mitigate Your Risks Faster with Cybersecurity Advisory and Service Support Effectively identify and decrease risk across your organization’s attack surface and support your organization’s continuous operations and delivery of government services. LEARN MORE

 

Jackson County, Mo., Struck by Ransomware Attack The assessment, collection and recorder of deeds offices remain shuttered as the city updates systems following the cybersecurity incident. READ MORE

 

Kansas Bill Would Create Judicial, Legislative CISOs A recent cyber attack on the state court system underscored the need to boost government defenses. The bill would also bring more consolidation to executive branch IT operations. READ MORE

 

Kansas Lawmakers Agree to Billion-Dollar Income Tax Cut Democratic Gov. Laura Kelly and GOP legislators have agreed to reduce the state’s top income tax bracket, starting at $30,000, from 5.7 percent to 5.5 percent. The proposal would cost $1.4 billion over the next three years. READ MORE

 

Keep Your First Responders In-The Know: Tools for Dependable Communication The more first responders know about a situation, the better decisions they can make. This paper from Verizon offers practical guidance on the latest strategies and tools for keeping first responders connected. DOWNLOAD

 

Keeping First Responders Safe: The Latest Tools and Strategies This paper from Verizon details how network upgrades, additional data and artificial intelligence applications are set to change how agencies respond to emergencies and keep first responders safe. DOWNLOAD

 

Laguna Beach Investigates Inappropriate AI Images of Students Officials at Laguna Beach High School in Orange County, Calif., have launched an investigation after a student allegedly created and circulated inappropriate AI images of other students. READ MORE

 

Law Enforcement and First Responders Prepare for Monday Eclipse Emergency management officials in Ohio have been prepping for the event for months, anticipating large crowds and slow traffic. Aside from inconvenience, stalled traffic threatens response times to everyday emergencies. READ MORE

 

Lobbying Helps Rich Cities Get Richer Lobbying at the state and federal level is a good investment for all cities, but pays off most for ones that are already wealthy. READ MORE

 

Long-Awaited Cyber Incident Reporting Rules Taking Shape CISA has published a draft of a new set of federal rules that require critical infrastructure entities to report cybersecurity incidents and ransomware payments, opening it up to comments. READ MORE

 

Longtime Philadelphia Technologist Is Elevated to CIO Philadelphia Mayor Cherelle L. Parker appointed veteran manager Melissa Scott to serve as chief information officer, the city announced Monday. Scott has been on staff more than eight years and arrived from private-sector IT. READ MORE

 

Lowell, Mass., Considers Cybersecurity Amid Attack Recovery CIO Mirán Fernandez told the City Council that a cyber attack created an opportunity to rebuild a free Wi-Fi service that hadn't followed established protocols during implementation back in 2004. READ MORE

 

Meeting the Moment with AI Microsoft’s mission is to help every person and organization on planet achieve more. Our approach to AI is grounded in that commitment. Learn how Microsoft is meeting the AI moment

 

New Central Florida Highway Will Charge EVs as They Drive State Road 516 will be equipped to recharge batteries of electric cars and trucks as they drive along the toll expressway. Although it will be less than five miles long, the road will cost nearly $550 million. READ MORE

 

New Washington, D.C., Tool Uses Generative AI to Make Data Accessible DC Compass, a new GenAI-based tool launched by the district in partnership with Esri, offers users answers to data-related questions. It is now available in a public beta version to improve its speed and accuracy. READ MORE

 

Newsom Approves Closure of 3 Prisons but Resists Pressure for More California officials say that the state’s 31 prisons are necessary to accommodate the fluctuating inmate population. Analysts say the cash-strapped state could save money by closing five more. READ MORE

 

Nine Website Design Techniques to Help Residents Find Information in Two Clicks Local government websites should be easy to navigate. Learn more about CivicPlus's 2-click concept to and build trust within your community by ensuring they can find the information they need in the most efficient way possible. DOWNLOAD NOW

 

North Carolina Adds to Growing Body of AI Ethics Guidance for Lawyers Read the whole entry

 

North Carolina Completes Yearslong Transition to NG911 The state began transitioning in November 2018 when Durham County 911 joined via AT&T ESInet, hosting a hosted call solution and text messaging, and Anson County 911 completed the state’s transition in February. READ MORE

 

North Carolina Schools Say Phone Bans Work, Despite Unpopularity In the 2021-2022 school year, 76 percent of public schools across the nation banned non-academic use of phones during school hours. After some North Carolina schools banned their use, kids are less distracted and getting into less trouble. READ MORE

 

North Texas Innovation Zone Aims to Drive AV, Delivery Tech The Mobility Innovation Zone in Alliance, Texas, north of Fort Worth, is becoming a center for developing next-gen transportation technologies. It’s situated near an interstate, rail lines and an air cargo hub. READ MORE

 

Ohio’s 911 System Upgrades Will Save Time and Lives The shift to the Next-Generation 911 program will provide more accurate caller location information, increase the communication methods accessible to dispatchers and will reduce response time, potentially by minutes. READ MORE

 

Ohio’s Upcoming 911 Upgrade Is ‘Going to Save Lives’ “I can call for a pizza on my cellphone and they know exactly where I am, but emergency service is pretty far behind right now. For something like 911, we should have accurate information. There’s no question about that.” 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

 

Outdated Tech in Minnesota Wastes County Workers’ Time The 25-year-old computer system used to manage the state’s child protection cases and social service programs wastes hours each week of individual employees’ time and stalls legislative efforts to improve child welfare. READ MORE

 

Paper-Based Payments Continue in Cyber-Struck Birmingham Some city sources have attributed a cyber incident in early March to ransomware, although the municipality has only called it a “network disruption.” Birmingham is using paper-based processes to pay staff, but public effects may be more minor. READ MORE

 

Public-Sector Workforce Returns to Pre-Pandemic Levels, but Gaps Persist After shedding nearly 1 million jobs, staffing levels are now higher than at the start of 2020. But severe shortages remain in several fields such as nursing, public safety and education. READ MORE

 

Report: Insecure Passwords Rampant Among .Gov Emails “Password” and “12345” were popular .gov email passwords in 2023, reveals a new report from cyber crime analytics company SpyCloud. There’s also been an increase in password reuse among accounts. READ MORE

 

Roanoke’s Biotech Renaissance and State-Led Housing Solutions Cities and states are working on novel solutions to old, intractable problems. Governing magazine’s return to print showcases stories of the people who are making them work across the country. READ MORE

 

Roanoke’s Reinvention: How a Small City Shifted Its Economy Cover Story: Roanoke lost the headquarters of two Fortune 500 companies. It created a promising future by retooling itself for biotech. READ MORE

 

San Jose CIO: AI ‘Challenges Us to Think Differently’ The Silicon Valley city has marked itself as a leader in AI with establishment of the GovAI Coalition and early adoption of guidelines — and CIO Khaled Tawfik says AI will likely change how leaders approach technology. READ MORE

 

Seattle Fire Trucks Are Deteriorating Too Fast for Repairs Since 2016, there’s been more than a 50 percent increase in Fire Department vehicles being pulled from service due to breakdowns or malfunctions. Currently, 45 percent of the department’s fire engines are older than 15 years. READ MORE

 

Starting Smart with Generative AI Generative AI can transform government by enhancing operational efficiency and the constituent experience. READ MORE

 

Stockton, Calif., Poised to Be Tenant on Floating Data Barge The city will lease space at Stockton 1 Data Center on a barge at the Port of Stockton. San Joaquin County is among other public- and private-sector entities renting space at the Nautilus Data Technologies facility. READ MORE

 

Texas Once Hustled to Get Kids on State Health Care. Now It’s Kicking Them Off. Texas’ recent unwinding of Medicaid and CHIP has been criticized, dropping more than a million people eligible for the health insurance programs. Decades ago,

 

Texas officials got kids health insurance in record time. READ MORE

 

The 2024 Election and the Need for Robust Website Security Local government websites are vital platforms for ensuring transparent, efficient, and secure election processes. However, these platforms are often prime targets for hackers and cybercriminals seeking to exploit vulnerabilities and compromise the integrity of election data. This fact sheet offers a concise, high-level overview of vital cybersecurity practices to consider in preparation for the upcoming 2024 US election. DOWNLOAD

 

The Pathways We Need to College and Good Jobs It takes partnerships among school districts, higher education, employers and community leaders to unlock the potential for more students to earn a degree that leads to significantly higher lifetime earnings. States can do a lot to make that happen. READ MORE

 

Timeline of Election Day Preparedness: From Planning to Execution Infographic outlines proactive steps to enhance communication, safety, and security during election season, starting four months prior to election day. DOWNLOAD INFOGRAPHIC

 

Tips for Overcoming IT Resource Drain in the Public Sector Here are five things you can do to help eliminate IT resource drain within your organization and provide improved IT service to employees and citizens. READ MORE

 

Transforming Government with Document Process Automation Document process automation (DPA) technology gives agencies a single, cohesive solution to manage their document-based projects. A DPA solution pulls documents from disparate systems into a centralized location that is accessible and visible to all collaborators. The result is a more efficient process that can save government agencies time and money. DOWNLOAD

 

Trolls and Their Tolls on Social Media Communicators This eBook from CivicPlus offers strategies for dealing with online trolls and guidance on how social media communicators can keep the peace on their websites without restricting free expression and meaningful and productive conversations. DOWNLOAD

 

U.S. ED, CISA Form Council to Tackle School Cybersecurity The new Government Coordinating Council will work with all levels of government to open channels of structured communication and put best practices into action in K-12 districts nationwide. READ MORE

 

U.S., Britain Will Partner to Safety Test AI Models The two nations have signed a pact committing their AI Safety Institutes to work together in testing emerging artificial intelligence models. Technologists will align their scientific approaches, trade information and do joint testing. READ MORE

 

Want Government Contracts? Revamp Your Personal LinkedIn A recent survey confirms that government employees are increasingly turning to online platforms like LinkedIn to vet potential vendors. A poorly optimized personal profile could cost a vendor valuable contracts. READ MORE

 

We Need a Lot More Housing. It Won’t Come from Washington. Biden’s budget would provide billions, along with heavy-handed regulation, but it won’t expand the supply. The way to build more housing and tame prices is for states to encourage local innovation. READ MORE

 

What’s New in Digital Equity: NTIA Announces $800 Million in Digital Equity Funding Plus, the FCC is preparing for a vote that could restore rules around net neutrality, state digital equity plans are continuing to be accepted, and more. READ MORE

 

With Tech, El Paso County, Colo., Brings the Outdoors Closer The county, through its Trailability Program, is using off-road TerrainHoppers to make trails accessible to people with disabilities; this year, GPS will enable solo rides. The county is also sharing scenery information via auditory devices. READ MORE

 

Women's Share of Council Seats in Big Cities Has Grown Dramatically With their numbers up more than 50 percent since 2016, women have achieved near-parity on councils in 15 major cities. Salaries on those councils have climbed an average of 27 percent. READ MORE

 

Wyoming CISO Steps in as Interim CIO as TR Sheehan Departs Wyoming Interim CIO TR Sheehan will move on from the position he has held twice, and CISO Aaron Roberts will add the CIO role to his duties, for now. Both men have been with the state for more than a decade. READ MORE

 

Defendants' failure to demonstrate that, as a matter of law, the credentials presented by the Plaintiffs did not permit them to perform the contemplated duties of their employment precludes granting Defendent's motion for summary judgment

Two former high-ranking public school district employees [Plaintiffs], alleging breach of their employment contract with the school district, appealed a federal district court's granting the Board of Education's motion for summary judgment.*  

Plaintiff's contended that the federal district court was incorrect in concluding that they did not possess the contractually requisite certifications for their positions at the time of their terminations, and that the district court erred in concluding that the Board of Education had not waived its right to invoke the relevant provision set out in Plaintiffs’ employment contracts.

With respect to Plaintiffs’ breach of contract claims, the Circuit Court had earlier remanded the issue for further proceedings as to whether Plaintiffs’ internship certificates satisfied the certification requirement in the parties’ employment contracts and whether the Board of Education had waived its right to invoke this contractual requirement. On remand, the district court concluded that the answer to both of these questions was “no,” and the instant appeals followed.

Noting that under New York law a plaintiff must establish that (1) “a contract exists,” (2) “plaintiff performed in accordance with the contract,” (3) “defendant breached its contractual obligations,” and (4) “defendant’s breach resulted in damages.” 

Further, in determining a party’s obligations under the contract, the Circuit Court opined that "it is well-settled that a court’s role 'is to ascertain the intention of the parties at the time they entered into the contract'" and in the event that intent is discernible from the plain meaning of the language of the contract, the court needs to look no further.” In contrast, should a court find an ambiguity in the contract, it "will look to extrinsic evidence," citing Schron v. Troutman Sanders LLP, 20 N.Y.3d 430.

Paragraph 13 of Plaintiffs’ employment agreements provided that if Plaintiff “fail[ed] to maintain any certifications or qualifications required of h[er] position (i.e., qualifications required by the Department of Civil Service or State Education Department), then this agreement "shall immediately become null and void.” 

Further, Paragraph 13 required Plaintiffs to “pass[] any examination the Department of Civil Service may deem appropriate for the position” and the “[f]ailure of either party . . . to insist upon strict compliance with any provision of the [a]greement shall not be construed to be a waiver thereof.”

The Circuit Court's ruling states that "the district court concluded that the relevant employment agreements 'required Plaintiffs to obtain certifications that would allow them to perform the duties of their positions, as those positions were defined and bargained for under the agreements," and that the 'internship certificates' that Plaintiffs held did not so qualify." However, the district court did not question that the internship certificates were “valid credential[s]” authorizing Plaintiffs “to act within the area of service for which the certificate is valid.” Rather the district court "determined that the “internship certificates did not qualify Plaintiffs to perform their positions under their contracts” because the certificates required the Board of Education “to undertake additional supervisory responsibilities related to Plaintiffs’ educational program and outcomes . . . that were not contemplated under the employment agreements.”

The Circuit Court of Appeals said it could not agree with the district court that, on this record and as a matter of law, the internship certificates did not qualify Plaintiffs to perform the duties contemplated by their employment agreements explaining that a reasonable factfinder could conclude that the employment agreements indicated that the “certifications or qualifications” required under the agreement were those “qualifications [that are] required by the Department of Civil Service or State Education Department” in view of the fact that the State Education Department submitted an amicus brief explicitly indicating that in its view the "Plaintiffs’ internship certificates 'w[ere] an acceptable certification allowing them to serve in their roles as school district leaders.'”

Thus, considering the State Education Department’s stated position, the Circuit Court said it could not say that "no reasonable juror could find that Plaintiffs’ internship certificates – which in the Department’s view qualify as certifications ... required by the ... State Education Department" would not allowed Plaintiffs to work as contemplated at the time of such contracting.

In Appeal of Coughlin, Decisions of the Commissioner of Education No. 14,751, the State Education Commissioner stated “an internship certificate is recognized by the State Education Department as a valid credential authorizing the holder to act within the area of service for which the certificate is valid”. 

The Circuit Court viewed Decision of the Commissioner No. 14,751, together with the State Education Department’s amicus brief, as "extrinsic evidence" that is probative of the parties’ understanding of the phrase “any certifications or qualifications required of h[er] position” at the time the contracts were executed.

However, given that this is a breach of contract case rather than an action that calls upon the Circuit Court to construe or interpret the relevant regulations, the Court said it agreed with the Board of Education that there is no reason for us to defer to the State Education Department’s interpretation of the regulations in this case and do not purport to do so here.

For this same reason, however, the Court of Appeals "decline the Board of Education's  invitation to examine post-Coughlin revisions to the relevant regulations in an effort to surmise whether the Commissioner would view an internship certificate as an acceptable alternative to the traditional school district leader certificate.

In the words of the Circuit Court, "Put simply, this is not a case in which 'the extrinsic evidence is so one-sided that no reasonable factfinder could decide contrary to one party’s interpretation' of the contract." Citing SCS Commc’ns, Inc. v. Herrick Co., 360 F.3d 329, and other decisions, the Circuit Court opined “When the language of a contract is susceptible to different interpretations and where there is relevant extrinsic evidence of the parties’ actual intent, then the contract’s meaning becomes an issue of fact precluding summary judgment [and ] the Board of Education’s arguments that the internship certificates indisputably do not enable Plaintiffs to perform their contemplated duties are unavailing on a motion for summary judgment and are better made [by] the factfinder at trial."

As the State Education Department explicitly recognized that school leaders have “[r]esponsibilty for the . . . performance evaluation of certified personnel” and still concluded that “[P]laintiffs’ respective . . . [i]nternship [c]ertificates were an acceptable certificate authorizing them to perform the duties of their positions,” the Circuit Court said that "[given] this competing evidence", it concluded that there is a genuine factual dispute as to whether Plaintiffs were foreclosed from performing the duty of evaluating school personnel." Further, there is no evidence that the internship certificate would have precluded Plaintiffs from acting as the superintendent’s designee, such that they could not have performed this aspect of their duties.

Finding that the Board of Education failed to demonstrate that, as a matter of law, the internship certificates did not allow Plaintiffs to perform the contemplated duties of their employment nor did the Board of Education demonstrate that Plaintiffs’ continued employment with the internship certificates would “foist additional, mandatory supervisory responsibilities on the District and/or the [s]uperintendent that the parties had not bargained for under the employment agreements”, the Circuit Court concluded that genuine issues of material fact preclude the entry of summary judgment in favor of the Board of Education.

The Circuit Court then vacated the judgments of the district court and remanded the cases "for further proceedings consistent with this order."

* Although Plaintiffs pursued separate appeals in this case, the United States Court of Appeals for the Second Circuit address both matters in a single order because the parties were represented by the same counsel, the issues presented were substantially the same, and the same district court order was on appeal in both cases.

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

 

Workers' Compensation Board finds applicant for Workers' Compensation benefits ineligible because the applicant voluntarily removed himself from the labor market

A Workers' Compensation Claimant, a police officer and a union representative tripped and fell in February 2021 on his way to internal affairs to represent another police officer and subsequently established a workers' compensation claim for injuries to his left shoulder, neck and back. Claimant continued to work until October 12, 2021, was released to return to work on December 21, 2021 and thereafter opted for a normal service retirement with approximately 34 years of service, effective December 30, 2021.

Claimant subsequently raised the issue of involuntary retirement as a result of the February 2021 established injuries. A Workers' Compensation Law Judge [WCLJ] found, among other things, that Claimant involuntarily retired from his employment. The Workers' Compensation Board modified the WCLJ's decision, finding that Claimant submitted insufficient credible evidence to show that his retirement was an involuntary withdrawal related to the disability for injuries stemming from the February 2021 accident. The Board then rescinded, among other things, any awards for the period subsequent to December 2021. Claimant appealed the Board's determination.

Citing Matter of Rivera v Joseph L. Balkan, Inc., 193 AD3d 1214, the Appellate Division affirmed the Board's ruling, noting that "Generally, a claimant who voluntarily withdraws from the labor market by retiring is not entitled to workers' compensation benefits unless the claimant's disability caused or contributed to the retirement". Further, opined the court, "the Board, which is the sole arbiter of credibility, is vested with resolving the factual issue of whether there has been a voluntary withdrawal, and its determination will not be disturbed if supported by substantial evidence."

The Appellate Division explained that in determining that Claimant did not provide sufficient evidence establishing that he involuntarily retired.

Significantly, the medical reports from Claimant's orthopedic surgeon submitted for the current claim specifically note that Claimant denied any prior neck injury, nor did they include any evaluation of whether the current disability purportedly leading to his retirement bore any relation to the prior permanent partial disabilities. Nor was there any indication that Claimant, although the medical reports state that Claimant is disabled from his employment as a police officer, discussed with the orthopedic surgeon that, although still a police officer, he was engaged in an administrative, light-duty capacity as a union representative and has not carried a firearm since at least 2005.

Deferring to the Board's credibility determinations, and considering other elements in Claimant's medical records, the Appellate Division concluded "substantial evidence supports the Board's determination that the evidence submitted was insufficient to establish that [Claimant's] retirement was an involuntary withdrawal related to a disability from the February 2021 injuries."

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

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Disability Benefits for fire, police and other public sector personnel - an e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information about this e-book click HERE.

 

Administrative Law Judge holds that termination of the employee was "reasonable under the circumstances"

New York City Office of Administrative Trials and Hearings Administrative Law Judge [ALJ] Julia H. Lee recommended termination of the employment for a patient care associate [Respondent] who has been excessively absent since November 2020 and absent without leave (“AWOL”) since May 2022.

Respondent did not dispute that she has been absent without leave from May 2022 to the present but contended that her absence was due to her Agency [Employer] reassigning her to the operating room in retaliation for her taking Paid Family Leave and the Employer’s failure to grant her reasonable accommodation request. The ALJ found that Respondent’s absence from work since May 2022 was not obviated by her submission of a reasonable accommodation request and that she was not entitled to an accommodation where she would not be performing the essential functions of her job. Judge Lee also found that the Employer had proved Respondent was excessively absent on 34 dates from November 2020 through February 2022, and was AWOL on numerous occasions.

In contrast, the ALJ found Respondent was on bereavement leave following the death of her father. As a full-time employee, Judge Lee opined that Respondent was entitled to a “maximum of four workdays with pay for a death in the immediate family”. In addition, Judge Lee dismissed an AWOL charge for Respondent’s absence from September 2, 2021 through November 5, 2021, explaining that the Employer cannot prove that Respondent was AWOL if the Employer had placed Respondent on leave for failure to comply with the COVID-19 vaccine requirement and then charged her with being AWOL for the same period.

Finding that Respondent was excessively absent on 34 dates from November 9, 2020, through February 2, 2022; was AWOL from February 18, 2021, through April 18, 2021; was AWOL on March 28, 2022, and from March 30, 2022, through May 10, 2022; and was AWOL from May 12, 2022, "to the present", Judge Lee, and noting that Respondent has no prior disciplinary history and was a long-time employee with the Employer are "mitigating factors", the ALJ concluded that the Employer's seeking Respondent's termination "is appropriate" and so recommended.

Click HERE to access Judge Lee's decision.

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A Reasonable Disciplinary Penalty - for information and access to a free excerpt of the material presented in this NYPPL e-book, click HERE

 

 

Correction officer terminated after being found guilty of using excessive force against an inmate and filing a false report concerning the event

A former employee [Petitioner] of the New York City Department of Correction [DOC] challenged his being terminated after being found guilty of excessive use of force against an inmate and submitting a false use of force report. The Appellate Division unanimously dismissed his appeal, opining that substantial evidence supported the findings of the Administrative Law Judge [ALJ] that Petitioner used "excessive and unjustified force against an inmate" in the form of video footage showing Petitioner run up behind the inmate and punch the inmate in the side of the head, "all while the inmate was in restraints and compliant with two escort officers".

At his disciplinary hearing the Petitioner admitted that he struck the inmate as "emotional response" to the inmate's verbal taunts about having thrown a tray of food at Petitioner minutes earlier. The Appellate Division said that this evidence "sufficiently supports the ALJ's determination that [Petitioner] violated DOC's Use of Force Directive, which prohibits the use of high impact force, including [s]trikes or blows to the head" unless a staff member "is in imminent danger of serious bodily injury or death," and prohibits the use of any force to retaliate against an inmate or in "response to an inmate's verbal insults, threats, or swearing."

Accordingly, the Court said DOC's decision to terminate Petitioner's employment was not an abuse of discretion considering the severity of Petitioner's conduct, which created "a needless risk of serious injury to the inmate" and, citing Matter of Harp v New York City Police Dept., 96 NY2d 892, held that the penalty imposed does not shock one's sense of fairness, "notwithstanding [Petitioner's] lack of disciplinary record."

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

 

New York State Comptroller DiNapoli releases municipal and school audits

On March 29, 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

 

Village of Cato – Water Financial Operations (Cayuga County)

The board and officials did not effectively manage the financial operations of the water fund, establish adequate reserves or develop long-term financial and capital plans until the Cayuga County Health Department forced the board to submit a plan. In addition, $42,696 in unauthorized billing adjustments were made. Of 464 water bills reviewed (totaling $134,852), 71 had calculation errors totaling $7,903 which included $6,607 that should have been billed and collected and $1,296 in overbillings. Auditors found 27% of the water produced (at a cost of approximately $20,000), or 9.4 million gallons, is considered unauthorized non-revenue water or lost water. In addition, long-term capital water needs were not appropriately planned for. 

Clymer Central School District – Payroll (Chautauqua County)

Employee compensation payments were not always accurate, approved or supported. District officials did not ensure pay rates were accurate or that compensation was paid in compliance with employment agreements. As a result, payroll errors went undetected and resulted in unnecessary and erroneous payroll payments. District officials made compensation errors totaling $28,500 because they used incorrect pay rates or incorrect hours/days worked to calculate 16 employees’ pay and paid five employees a total of $4,792 for retroactive raises that were not authorized by the board of education. Officials also paid 16 employees perfect attendance awards totaling $2,550 that they were not eligible for  and did not require written prior authorization for overtime work. Another 12 overtime payments totaling $1,858 were not supported with evidence of approval.

 

Deer Park Union Free School District – Fuel and Vehicle Inventory (Suffolk County)

District officials did not adequately maintain vehicle inventory or monitor fuel usage. As a result, vehicles and fuel were not properly accounted for. Officials did not maintain accurate inventory records of vehicle additions and disposals, and there were discrepancies with 19 vehicle inventory records. In addition. officials did not obtain board of education approval prior to disposing of vehicles, or promptly remove unused vehicles from insurance, resulting in $17,237 of unnecessary costs. Auditors also found 44,976 gallons of fuel was dispensed without identifying who pumped the fuel.

 

Green Tech High Charter School – Payroll (Albany County)

Officials did not accurately pay salaries and wages to 10 of the 67 employees reviewed and could not support payments made to 54 employees totaling $41,626. Officials made payroll calculation errors totaling $1,210 for 10 salaried employees and did not maintain time sheets or payroll status change forms documenting approved pay rates to support $7,220 in wages paid to three hourly employees reviewed. Official also could not support approvals for miscellaneous payments totaling $16,706 made to seven employees or support class coverage payments totaling $17,700 made to 44 employees.

 

Garden City Union Free School District – Information Technology (IT) Asset Management (Nassau County)

District officials did not properly track or inventory IT assets, maintain complete IT inventory records or safeguard IT assets. As a result, officials cannot assure taxpayers that IT assets are adequately accounted for and would be detected if lost, stolen or misused. Auditors selected 60 IT assets from invoices and device management reports to confirm their location and that they were inventoried and 10 additional IT assets to confirm they were inventoried. They determined that 23% of the assets were not properly accounted for.

 

Inlet Common School District – Claims Processing (Hamilton County)

The claims reviewed were supported and for appropriate purposes but did not have evidence that they were audited and approved before payment. As a result, the district has an increased risk that unauthorized claims could be paid. The board and district officials did not provide effective oversight of claim processing and payment. Board members did not document the date that they authorized claims to be paid. In addition, district officials used a debit card to pay for 60 purchases totaling $6,840 that were not subject to board approval.

 

Lewis County Court and Trust

Auditors reviewed the processes, procedures and records for the receipt and management of court and trust funds as well as estates in the treasurer’s custody and found that the treasurer generally established adequate procedures, maintained appropriate records, and properly reported court and trust funds. However, auditors identified $239 that improperly remained in the treasurer’s custody that should have been turned over to the State Comptroller as abandoned property.

 

Morley Volunteer Fire Company – Misappropriation of Funds (St. Lawrence County)

Company officials did not provide oversight of financial operations to ensure funds were safeguarded. As a result, the former treasurer was able to misappropriate $64,972 of company funds from January 2016 through Dec. 2019. The former treasurer was able to obtain cash totaling $45,400 by making inappropriate automated teller machine and in-bank withdrawals, writing unauthorized checks to herself and receiving cash from company funds presented for deposit and make 178 personal purchases totaling $19,572 using a company debit card. These improper transactions went undetected because company officials did not review monthly bank statements and canceled check images, receive monthly financial reports, audit bills prior to payment or compare cash collections to deposits. The former treasurer was arrested in July 2023 and pleaded guilty to grand larceny in the fourth degree in November 2023. She was sentenced to probation in January 2024 and ordered to pay $50,000 in restitution.

 

Shenendehowa Central School District – Longevity Payments (Saratoga County)

District officials did not ensure longevity payments for employees separating from service were accurate, supported and approved. District officials did not accurately calculate longevity payments for 26 of the 32 (81%) employees reviewed. As a result, 26 employees were underpaid a total of $9,214 in longevity for separation payments. Although employees covered by the Shenendehowa United Supervisors’ Association and Management Confidential collective bargaining agreements receive longevity payments, their agreements do not include language for these payments upon separation.

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