Links to selected items concerning government operations posted on the Internet during the week ending July 19, 2024

AI and The Law  A report posted on Sui Generis, a New York Law Blog" by Nicole Black, Esq., addressing using AI in and by law firms. Click the text following highlighted in blue to access the report:  New Report Highlights GenAI Adoption Trends in Law.

 

AI Gun Scan Company, ZeroEyes, Raises $53M  The company has raised more than $100 million in equity and debt from private investment firms, and it has hired more than 150 people, some of them veterans, half in the Philadelphia area. READ MORE

 

Are We More at Risk of Infectious Disease Now Than Ever?  From COVID to Lyme disease, there are numerous illnesses that residents across Connecticut and the nation are at risk of. But does that mean we are more at risk today than times in the past? READ MORE

 

Are We Only 20 Years from the Singularity?  When futurist Ray Kurzweil popularized the idea that AI would one day surpass human intelligence, he predicted its occurrence in 2045. With two decades to go, now is the time to get ahead on regulating it. READ MORE

 

At First Meeting, R.I. AI Task Force Considers Advisers  Rhode Island Gov. Dan McKee announced the group’s membership, and that he would host its inaugural gathering, on Friday. Members will assess the risks and opportunities in artificial intelligence. READ MORE

  

Atlanta AI Council Meets at Last, Looks to Create Committees  The new council, chaired by Sam Altman, CEO of OpenAI, held its inaugural gathering at the end of June, six months after it was announced. The group may create committees to get more heavily involved in day-to-day operations. READ MORE

 

Atlanta Cyclists Warn of E-Bike Dangers on Shared Paths  Atlanta limits e-bike motors to 20 miles per hour on shared-use paths, but there have been several reports of bikes traveling at speeds up to 70 mph. READ MORE

 

Big Batteries Were Key to California Grid Surviving Recent Heat Wave  The state’s power grid maintained service throughout a nearly three-weeklong record-setting heat wave. Officials are crediting investments in clean energy, particularly in 10,000 megawatts of battery storage.  READ MORE

 

Boston to Roll Out Tap-to-Pay Transit Fare Payment Option  The Massachusetts Bay Transportation Authority, in partnership with Cubic Transportation Systems, will introduce new contactless tap-to-ride technology, where riders tap a credit card or digital wallet to pay transit fares. READ MORE

 

Can a Gov Tech Supplier Help Reduce Recidivism Rates?  That’s one of the main ideas driving a deal between Geographic Solutions and California prison authorities. The company’s software is helping give soon-to-be-released inmates a chance to apply for jobs. READ MORE

 

ChatGPT and Google Gemini Pass Ethical Hacking Exams  Researchers at the University of Missouri say the automation and speed of large language models could be useful in cyber defense, but they can’t yet replace human cybersecurity experts. READ MORE

 

Chicago Teaches Barber Students How to Reverse Overdoses  Rush University Medical Center is using its classes of barber and hair stylist students to help combat the opioid crisis by providing them training about substance use disorders and how to administer Narcan. READ MORE

 

Chinese Tech Firm Files to Launch 10K Low-Orbit Satellites  Plus, Waymo reports 50,000 weekly driverless taxi rides in three major cities, research finds investments in renewable energy are paying off and parrots, it turns out, like to FaceTime their friends. READ MORE

Clay County, Ind., Declares Local Disaster After Cyber Attack  The local government declared a “local disaster emergency” due to a “significant disruption in services as a result of a criminal ransomware attack.” This follows disruptions to the county courthouse and probation/community corrections. READ MORE

 

Cloud Procurement: Myths and Opportunities  With the expiration of emergency procurement provisions, many agencies have returned to traditional procedures after a period of unprecedented flexibility and rapid delivery of cloud-based services. But government IT leaders may have more latitude to take advantage of cloud-based solutions than they realize. This thought leadership paper debunks common misconceptions about cloud procurement and outlines strategies for simplifying procurement processes.
DOWNLOAD

 

Connecticut’s Digital Equity Work Supports Regional Efforts  Digital Equity Program Manager Lauren Thompson on building a people-centered program, maximizing federal funding and making sure residents have the tools they need to get online in Connecticut. READ MORE

 

FBI Revamps Criminal Justice Data Security Policy  Revisions to the FBI’s Criminal Justice Information Services Security Policy affect all entities who have access to that data, including education departments, police, vendors and more. READ MORE

 

Feds Give Georgia’s Blue Bird $80M for EV School Buses  The bus maker will receive the money under the Domestic Auto Manufacturing Conversion Grants program plan, which aims to spur U.S. production of electric, hydrogen or hybrid vehicles. It will convert a factory to produce the buses. READ MORE

First-of-its-Kind Gender-Based Violence: Law, Policy, and Practice Course Gives Students Real-World Experience  Albany Law School continues to find innovative ways to advance its curriculum to prepare students for a career in law. A fitting example is the new Gender-Based Violence: Law, Policy, and Practice class. The two-credit course, first offered in the spring semester of 2024, focuses on the first-of-its-kind federal plan U.S. National Plan to End Gender-Based Violence: Strategies for Action, which was adopted in the spring of 2023. READ MORE 

Floodbase Aims to Bring More Real-Time Clarity to Flood Risk  The company, which already serves the federal government, has released a data-based product to other public agencies. The goal is to help officials with flood response, management and recovery operations. READ MORE

 

Florida Welcome Signs With DeSantis Motto Cost $60K  The state now has signs that welcome visitors to “The Free State of Florida” at 24 locations along highways and two welcome centers. The slogan has been used in Gov. Ron DeSantis’  ampaign since at least 2022.  READ MORE

 

Florida Will Pull Digital ID App from Stores, Redo It  In an email Wednesday, the Florida Department of Highway Safety and Motor Vehicles said it will revise the Florida Smart ID application, and asked users to delete it. The app has since been deactivated. READ MORE

 

Future-Proofing the Public Sector with Technology Modernization  As advancements in technology speed up, government agencies face a decision: maintain old legacy systems or invest in modern technology. The imperative for leaders is not just about keeping pace with technological advancements but about reducing risks by making smart choices that will stand the test of time. By all measures, migrating legacy IT system functions to the cloud is the smart choice. DOWNLOAD

 

Google Public Sector unveils AI thought leadership hub: Helping organizations innovate  Google launches new thought leadership hub detailing AI tools designed to address public sector challenges, from healthcare to sustainability.  Explore Real-world AI in Action For the Public Sector

 

Google's AI hub: How AI is empowering the public sector  Discover how adaptive, secure, and responsible AI is helping modernize government services. Explore case studies, white papers, and expert insights.  Discover How AI is Transforming Citizen Services

 

Guarding Gold: Cybersecurity Challenges Ahead of the Paris Olympics  Preparations for the Paris Summer Olympics have been going on for years. And given the expected global audience and international participation, cybersecurity is at the center of the action. READ MORE

 

Harford County Approves AP African American Studies Curriculum  The Maryland county’s Board of Education unanimously approved the updated coursework this week following hours of public comments. The elective course will be offered next year to juniors and seniors at six schools. READ MORE

 

Heavy Rains, Floods Force Hundreds to Flee St. Louis Area  Heavy rains on Tuesday threatened failure of the 89-year-old Nashville, Mo., City Reservoir Dam, forcing about 200 people to evacuate their homes. More rain is expected across the region. READ MORE

 

How ‘Alternative Investments’ Are Dragging Down Pension Performance  The major public funds have almost doubled their investments in high-fee, nontraditional vehicles, and important new research shows how costly it’s been. It’s a wake-up call for greater scrutiny of fee structures and consultants’ assumptions. READ MORE

 

How Contact Centers Can Innovate Without Disruption  Contact centers are essential to creating a satisfying customer experience (CX) for government agencies and their constituents. In this Government Technology Q&A, Jerry Dotson, vice president of public sector, Avaya Government Solutions, explains how the right CX platform lets government organizations implement new contact center technologies easily and efficiently.  READ MORE

 

How Governments Are Using AI and GIS to Fast-Track Permits  State and municipal agencies and one of the nation’s most populous counties are integrating AI and GIS into their permitting systems, adding automation and enhancing transparency to improve service and accountability. READ MORE

 

Is Minnesota’s Governor Taking Fraud Claims Seriously?  Recent reports from the legislative auditor about stolen millions have sparked questions about Gov. Tim Walz’ administration and its oversight of public funds. READ MORE

Massachusetts City Doubles Number of Surveillance Cameras  Officials in Methuen, Mass., have started the process of installing 50 public police cameras in recent weeks as part of the citywide camera network that will cover all 23 square miles of the city. READ MORE

 

Minnesota Housing Agency Accused of Making Racial Segregation Worse  The Minneapolis-based Stairstep Foundation works with more than 100 Black churches and argued that the Minnesota Advisory Committee has not encouraged or allocated subsidized housing appropriately.  READ MORE

 

Nebraska Court Rules State Workers Must Return to the Office  Gov. Jim Pillen ordered state workers back in the office at the start of the year, but the employees union balked. A labor court said the union had "engaged in a pattern of willful, flagrant, aggravated, persistent and pervasive prohibited misconduct." READ MORE

 

New England Attorneys General Notify Cyber Attack Victims  Officials in Massachusetts and New Hampshire are contacting and offering resources to people whose personal and health information may have been compromised in the February Change Healthcare incident. READ MORE

 

New Jersey Braces for School Smartphone Ban Fighting Officials in Middletown, N.J., have proposed a policy banning smartphone use in classrooms, bathrooms, locker rooms and most spaces outside of high school free periods, as a statewide ban is discussed. READ MORE

 

Often Overlooked, Printers Require Protection Strategies  We rely on printing and document sharing so often it’s easy to overlook the security vulnerabilities inherent to them. However, both pose significant risks. DOWNLOAD

 

Political and Labor Leader in Philadelphia Sentenced to 6 Years in Prison  On Thursday, John Dougherty was sentenced to federal prison following convictions of bribery and embezzlement. Dougherty led the state’s most powerful labor union for nearly 30 years. READ MORE

 

Prepare for a New Dust Bowl  No rainmaker, aqueduct or prayer can save the Ogallala Aquifer from depletion. The battle over its decline pits good policy against powerful agricultural and political interests. READ MORE

 

Protect Digital Identities from Fraud  Discover strategies to enhance digital identity security and reduce fraud risks. READ THE WHITE PAPER

 

Ransomware Attack Hits Florida Department of Health  This new cyber attack has disrupted the state’s ability to issue death and birth certificates, and the breach might be putting sensitive patient data at risk. READ MORE

 

Report: Police Must Evolve to Combat New Age of Cyber Threats  Public safety threats are increasingly blending physical violence, cyber attacks and online influence campaigns. The report calls for new law enforcement training, a national threat system and more. READ MORE

 

San Francisco Elevates Seasoned Exec to CIO  IT Leader  Interim CIO Michael Makstman, in place since Jan. 1, has been made permanent and will lead the city-county’s Department of Technology. Makstman has been with San Francisco more than six years and was previously its CISO. READ MORE

 

Seattle to Vote on Record $1.55 Billion Transportation Levy  The proposal would increase property taxes to fund new sidewalks, bike lanes, and other transportation infrastructure. It would replace a $930 million levy expiring this year. READ MORE

 

See the USA in Your Chevrolet, for About 11 Cents a Mile  Traveling across the West in an electric car turned out to have unexpected thrills, and occasional frustrations. Our reporter found that the chargers were out there — but connecting with them sometimes meant taking the long way around. READ MORE

 

Self-Service, Automation Driving Public-Sector IT Innovation  Learn how the convergence of self-service and automation in public-sector IT enhances efficiency for government agencies — streamlining access to services, freeing up resources and fostering innovation. LEARN MORE

 

Should Noncitizens Be Able to Be Cops and Firefighters?  This fall, Denver voters will decide whether people who are legal residents but not U.S. citizens should be able to work as city firefighters and police officers. If approved by a majority, the citizenship requirement will be removed.  READ MORE

 

Some Police Leave Big Cities to Avoid Scrutiny  Larger departments struggle to hire, despite big salaries and bonuses, while smaller agencies are seeing their incentives yield more hires. READ MORE

 

South Carolina’s Blueprint Reveals How It Will Leverage AI  The state’s Artificial Intelligence Strategy details how agencies will leverage the technology for predictive analysis, to improve resident services and drive workforce development. Ethics and security are part of the plan. READ MORE

 

State of Local Government Survey Results - 2024  A recent survey of over 500 local government leaders and if there’s one thing that the results tell us, it’s that the need to do more with less is greater than ever. Download this year’s annual survey to see what the biggest opportunities and obstacles facing the public sector are.  SEE THE RESULTS

 

States Tighten Funeral Home Rules After Decades of Lax Oversight  Lawmakers in Colorado, Illinois and Michigan are seeking to tighten regulations on the funeral home industry after numerous incidents prompted outrage from the public and grieving families. READ MORE

 

Strengthen Your Digital Identity Today  Learn effective methods to safeguard digital identities and prevent online fraud.  ACCESS THE FULL WHITE PAPER

 

Strengthening Supervision for Safer Communities  Staff shortages and rising caseloads are contributing to an increase in the average time adults remain incarcerated. Supervision software can streamline pretrial, probation and parole processes and help officers manage cases more efficiently. This paper explains how modern supervision software can help improve outcomes and protect communities.  DOWNLOAD

 

The Contributions Older People Could Make to Government  When it comes to public-sector jobs and elective office, age discrimination is real. Governments would do well to tap into the experience and the particular type of intelligence that people of a certain age can bring to bear. READ MORE

 

The Emerging Strategy for Getting Drivers of the Biggest Gas Guzzlers Into EVs  The top 10 percent of drivers in the U.S. consume more than a third of the gasoline. Some lawmakers hope targeting them with EV incentives will help reduce emissions more quickly. READ MORE

 

The Expensive Help Texas Is Getting at the Border  The federal government has deployed the National Guard to Texas’ border with Mexico for years, but a number of states have dug into their own budgets to send more military and law enforcement personnel. Some states have spent millions. READ MORE

 

The Mission: Connect Every American  From tough terrains to harsh climates, connecting every American requires resilience. Witness the relentless efforts to bridge the digital divide. [CONTENT PROVIDED BY NCTA] STREAM THE DOCUFILM NOW

 

The Real Reason Local Governments Are Facing More ADA Non-Compliance Fines  Perceived redesign costs, unknowledgeable website design partners, and limited maintenance resources are holding too many municipalities back from ADA compliance. LEARN MORE

 

The Winners and Losers of Pennsylvania’s $47.6B Budget  The state’s budget will include big changes to how the state funds its public schools and offers a new approach to higher ed. But residents earning minimum wage and SEPTA won’t be so lucky in financial allocation this year.  READ MORE

 

Two Years In, Americans Still Learning What the 988 Crisis Line Is All About  The national Suicide and Crisis Lifeline is two years old. Americans know it’s there, but not many know what it does.  READ MORE

 

Under Watchful Eyes, Guilford County Upgrades Its 911 Center  One of North Carolina's largest counties is deploying a new emergency communications system from Hexagon. The exec running the 911 center — now the new president of NENA — details what will happen and what’s at stake. READ MORE

 

Use This Framework to Modernize Your Government Grant Programs  This framework accommodates the uniqueness of each government grant program so you can modernize at your own pace. LEARN MORE

 

Washington State Launches Food Poisoning  Reporting Tool  Announced  Monday, the Foodborne Illness Notification System from the Washington Department of Health is an online platform residents can use to notify authorities about illness or food safety concerns. READ MORE

 

West Virginia Appeals to SCOTUS Over Transgender Sports Ban  State Attorney General Patrick Morrisey filed a petition with the court asking it to overturn an appellate court finding that the ban violated Title IX rights. READ MORE

 

What’s New in Digital Equity: Rating Low-Cost Internet Plans  Plus, the FCC is taking steps to update broadband data collection, more states have had their initial proposals for BEAD funding approved, Oakland got a grant to expand broadband infrastructure, and more. READ MORE

 

When ‘Universal’ Pre-K Really Isn’t: Barriers to Participating Abound  A lack of awareness, limited hours and a shortage of teachers are among the hurdles.  READ MORE

 

Why Scammers Are Targeting Cryptocurrency ATMs  Experts say crypto ATMs have become a vehicle for international criminal enterprises, and that millions of dollars’ worth of fraud is carried out using the machines in the U.S. alone. READ MORE

 

Will the 2024 Elections Lead to a Massive CIO Changeup?  With 11 gubernatorial elections impending, should state and local governments expect to see major changes in the leadership of technology and innovation? Government Technology digs into the data. READ MORE

 

Winning Online Budget Books  From budget books to open data, see how local government teams around the country are making their voices, and impact, heard with these online publications. SEE HOW

 

Yolo County, Calif., Moves to Gov Domains for Security  Yolo County is proactively enhancing the security and trustworthiness of its online presence by transitioning all county professional email accounts and webpages from the ".org" domain to the ".gov" domain. READ MORE

 

Municipal and school audits issued

On July 19, 2024, New York State Comptroller Thomas P. DiNapoli announced the publication of the local government and school audits listed below.

Click on the text in color to access the complete text of the audit for the jurisdiction.

 

Town of Stafford – Capital Projects (Genesee County)

The board did not properly authorize and monitor capital project activity. Because the board relied on an engineering firm and a financial advisor to manage capital projects, it was not aware of project overruns, cash flow issues or financing source shortfalls. Moreover, a portion of the costs to construct water districts was unfairly paid for by taxpayers not living in or receiving benefit from these water districts. The board and supervisor also did not maintain adequate capital project accounting records or include eligible expenditures totaling $3,496 in the grant reimbursement applications. As a result, the town received less funding than it was entitled to.

Town of Lancaster – Town Supervisor’s Financial Duties (Erie County)

The former supervisor did not perform his financial duties and did not monitor the work performed by the firm he improperly contracted with to act as director of finance, resulting in incomplete and inaccurate financial records and significant control weaknesses. Monthly financial reports were not generated and provided to the board and bank reconciliations were not completed promptly. Auditors found 86 budget lines were overspent by nearly $9.2 million and 21 budget transfers totaling $483,122 were completed without board approval. They also found 76% of journal entries were made 70 days after the transaction took place and 60% of journal entries were approved by the firm without the supervisor’s review. The supervisor also compromised the security of the town’s resources by granting unrestricted access to the financial system and online banking to the firm, a third party. He did not ensure proper segregation of duties or put other controls in place, which allowed the firm to disburse $2.5 million of the town’s cash without any town official’s approval. The supervisor and other board members were unaware of these deficiencies and continued to pay the firm even though the contract terms were not fulfilled.

Franklin-Essex-Hamilton Board of Cooperative Educational Services – Capital Project State Aid

BOCES officials did not properly claim state aid for a capital project. As a result, as of Jan. 31, 2024, five component school districts had not received $652,054 in state aid they were entitled to for the project, and two districts received $916,278 in aid before being entitled to it. In addition, if officials do not claim approximately $1.5 million in eligible project expenditures, seven districts will not benefit from approximately $835,000 in state aid to they should receive.

Rensselaer City School District – Medicaid Reimbursements (Rensselaer County)

District officials did not submit claims for all Medicaid-eligible services provided to students and did not correct and resubmit rejected claims. The district also lacked adequate procedures to ensure Medicaid claims were submitted and reimbursed. As a result, claims were either not submitted or reimbursed for just over 1,260 eligible services totaling $46,338. Had the district claimed all eligible services, it would have realized revenues totaling $23,169.

Town of Franklinville – Procurement (Cattaraugus County)

Town officials did not always comply with the requirements of the town’s procurement policy because the board members, highway superintendent and former town supervisor, who served as the town’s chief financial officer, were not familiar with the town’s procurement policy and its requirements. Further, they did not research publications or attend free training that was available to assist them in their procurement responsibilities. As a result, $827,000, or 41%, of the $2 million in procurements reviewed were made without competitive procurement methods.

City of Yonkers – Budget Review (Westchester County)

The city’s adopted budget for fiscal year 2024-25 and supporting documents are in compliance with the requirements of state law. The city’s 2024-25 budget totals $1.51 billion, which includes operating and debt service funding of $794.2 million for Yonkers Public Schools and $719 million for the city. The 2024-25 budget is $81.2 million more than the city’s budget for 2023-24, an increase of 5.7%. The budget relies on nonrecurring revenue of $133.5 million, such as appropriated fund balance, one-time state and federal funding and sale of property, to balance its budget. The city could face a total shortfall of approximately $2.6 million if revenue estimates are not realized. The city plans to borrow up to $15 million for tax certiorari settlements in the 2024-25 fiscal year. Overtime costs could potentially be underestimated for police by as much as $2 million and for firefighting by as much as $131,000. Employee retirement costs are likely underestimated by as much as $945,000. Life, health and dental insurance costs could potentially be underestimated by as much as $195,000. Social security costs could potentially be underestimated by as much as $194,000.

Village of Elmira Heights – Claims Auditing (Chemung County)

Although state law requires a village board to audit all claims against a village before payment is made, the board did not perform a thorough and deliberate audit of individual claims, increasing the risk that improper payments could be made. Although the 213 claims reviewed totaling $771,282 were for proper village purposes, auditors determined that 34 claims totaling $143,560 were improperly paid before board approval and 11 claims totaling $34,987 lacked evidence that verbal or written quotes were obtained as required by the village’s procurement policy.

###

56 page United States Second Circuit Court of Appeals decision focuses on New York State's public accommodations laws which guarantee equal access to goods and services for members of protected classes

Below is the court's introduction to its decision in:

EMILEE CARPENTER, LLC, DBA EMILEE CARPENTER PHOTOGRAPHY, EMILEE CARPENTER, 

Plaintiffs-Appellants, 

v. 

LETITIA JAMES, IN HER OFFICIAL CAPACITY AS ATTORNEY GENERAL OF NEW YORK, 

MARIA L. IMPERIAL, IN HER OFFICIAL CAPACITY AS THE ACTING COMMISSIONER OF THE NEW YORK STATE DIVISION OF HUMAN RIGHTS,

 WEEDON WETMORE, IN HIS OFFICIAL CAPACITY AS DISTRICT ATTORNEY OF CHEMUNG COUNTY, 

Defendants-Appellees.* 

 August Term 2022 

Argued: September 28, 2022 Decided: July 12, 2024 

No. 22-75 

"Plaintiff Emilee Carpenter is a wedding photographer who offers her services to the general public. Her complaint alleges that she wishes to create photography that reflects her religious and personal beliefs about marriage, including by declining to offer her services for same-sex weddings. She brought this preenforcement action alleging that New York’s public accommodations laws prohibiting discrimination on the basis of sexual orientation violate the First and Fourteenth Amendments. 

"Carpenter sought declaratory and injunctive relief, and requested a preliminary injunction against enforcement of the laws.

"The United States District Court for the Western District of New York (Geraci, J.) dismissed all of her claims. 

"Following the Supreme Court’s decision in 303 Creative LLC v. Elenis, 600 U.S. 570 (2023), State and County Defendants concede and we agree that Carpenter has met her burden at the pleading stage to state a plausible free speech claim. However, we reject Carpenter’s request to enter a preliminary injunction at this stage.

"We also affirm the district court’s dismissal of Carpenter’s other claims. Carpenter has failed to sufficiently plead that the public accommodations laws violate her right to free association, her right to free exercise of religion, or the Establishment Clause. She has also failed to state a plausible claim that the laws are unconstitutionally overbroad or vague.

"Accordingly, we AFFIRM in part, REVERSE in part, VACATE in part, and REMAND for further proceedings."

* The Clerk of Court is respectfully directed to amend the captions.

Click HERE to access the complete 56 page opinion by the United States Second Circuit Court of Appeals.

Procedural omissions results in the Appellate Division's remitting the matter to the Supreme Court "for the service and filing of an answer and the administrative record" and the annulling of that court's ruling with respect to the penalty imposed on the Petitioner

Plaintiff, a volunteer firefighter, was found guilty of misconduct. The penalty imposed: removal from his position and membership with the Water/Fire District [District].

Supreme Court's order and judgment denied the District's motion pursuant to CPLR §§3211(a) and 7804(f) to dismiss Plaintiff's petition, granted the Plaintiff's petition by annulling so much of the District's determination as removed the Petitioner from his office and membership with the District, and remitted the matter for a new determination as to the appropriate penalty to be imposed upon the Petitioner. The District appealed the Supreme Court's decision.

The Appellate Division annulled so much of the Supreme Court's ruling as addressed the "removal of the Petitioner from his office and membership with the District and remitted the matter for a new determination as to the appropriate penalty to be imposed upon the Petitioner", and as so modified, the Supreme Court's order and judgment was affirmed and the matter was remitted to that court "... for the service and filing of an answer and the administrative record within 20 days after the date of this decision and order, and for further proceedings on the petition consistent herewith." 

The Appellate Division opined that the documentary evidence did not utterly refute the allegation that the penalty imposed on the Petitioner was arbitrary and capricious or that "it was the result of race-based discrimination."

The Appellate Division, accepting Petitioner's allegations as true and affording him the benefit of every favorable inference, explained "the [District] failed to demonstrate that [Petitioner] does not have a cause of action for relief pursuant to CPLR article 78"* and that Supreme Court had properly denied the District's motion pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition. However, Supreme Court, said the Appellate Division "should not have awarded [Petitioner] the ultimate relief sought in the petition, since the [District] had not yet filed an answer or the administrative record."

* Citing Matter of O'Hara v Board of Educ., Yonkers City Sch. Dist., 198 AD3d at 900.

 

Matter of Thomas v Garden City Park Water/Fire Dist.

2024 NY Slip Op 03759

Decided on July 10, 2024

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 10, 2024 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
JOSEPH J. MALTESE
JANICE A. TAYLOR
CARL J. LANDICINO, JJ.

2022-00509
(Index No. 604169/21)

[*1]In the Matter of Jensen Thomas, respondent,

v

Garden City Park Water/Fire District, et al., appellants.

Bond, Schoeneck & King PLLC, New York, NY (Gregory B. Reilly, Stephanie M. Campbell, and Mallory Campbell of counsel), for appellants.

 

Ruskin Moscou Faltischek P.C., Uniondale, NY (E. Christopher Murray and Nicole Osborne of counsel), for respondent.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review so much of a determination of the Board of Commissioners of the Garden City Park Fire District dated February 25, 2021, as, after a hearing, and upon finding the petitioner guilty of misconduct, removed the petitioner from the office of captain in the Garden City Park Water/Fire District and from membership therein, the appeal is from an order and judgment (one paper) of the Supreme Court, Nassau County (Diccia T. Pineda-Kirwan, J.), entered November 22, 2021. The order and judgment denied the respondents' motion pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition, granted the petition, annulled so much of the determination as removed the petitioner from the office of captain in the Garden City Park Water/Fire District and from membership therein, and remitted the matter for a new determination as to the appropriate penalty to be imposed upon the petitioner.

ORDERED that the order and judgment is modified, on the law, by deleting the provisions thereof granting the petition, annulling so much of the determination as removed the petitioner from the office of captain in the Garden City Park Water/Fire District and from membership therein, and remitting the matter for a new determination as to the appropriate penalty to be imposed upon the petitioner; as so modified, the order and judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for the service and filing of an answer and the administrative record within 20 days after the date of this decision and order, and for further proceedings on the petition consistent herewith.

The petitioner served as a volunteer firefighter with the respondent Garden City Park Water/Fire District (hereinafter the District), and in 2016, he was elected captain of his company. On February 13, 2020, the Board of Commissioners of the Garden City Park Fire District (hereinafter the Board), which consisted of the respondents Chris Engel, Kenneth Borchers, and Peter Chimenti, issued a Notice of Hearing and Statement of Charges, alleging that on December 12, 2019, the petitioner breached the District's constitution and bylaws and its workplace violence policy by confronting a superior officer in a threatening and disrespectful manner, refusing to comply with the superior officer's order to leave, and damaging the District's property. On February 25, 2021, the Board, after a hearing, found the petitioner guilty of all charges and removed him from the office of captain and from membership in the District.

The petitioner commenced this proceeding pursuant to CPLR article 78 to review so much of the Board's determination as removed him from the office of captain in the District and from membership therein. Prior to answering the petition and submitting the administrative record, the respondents moved pursuant to CPLR 3211(a)(1) and (7) and 7804(f) to dismiss the petition. In an order and judgment entered November 22, 2021, the Supreme Court denied the respondents' motion to dismiss the petition, granted the petition, annulled so much of the Board's determination as removed the petitioner from the office of captain in the District and from membership therein, and remitted the matter for a new determination as to the appropriate penalty to be imposed upon the petitioner. The respondents appeal.

"On a motion pursuant to CPLR 3211(a)(7) and 7804(f) to dismiss a petition, all of its allegations are deemed true, and the petitioner is accorded the benefit of every possible inference" (Matter of Silverman v Town of Ramapo, 222 AD3d 652, 653). When evidentiary material outside the pleading's four corners is considered on a motion pursuant to CPLR 3211(a)(7) and the motion is not converted into one for summary judgment, the question becomes whether the pleader has a cause of action, not whether the pleader has stated one and, unless it has been shown that a material fact as claimed by the pleader is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate (see Matter of O'Hara v Board of Educ., Yonkers City Sch. Dist., 198 AD3d 896, 899). "On a motion to dismiss a petition pursuant to CPLR 3211(a)(1), the movant has the burden of providing documentary evidence that utterly refutes the petitioner's factual allegations, conclusively establishing a defense as a matter of law" (id. [internal quotation marks omitted]).

Here, the documentary evidence did not utterly refute the allegation that the penalty imposed on the petitioner was arbitrary and capricious or that it was the result of race-based discrimination (see id. at 900). Similarly, accepting the petitioner's allegations as true and affording him the benefit of every favorable inference, the respondents failed to demonstrate that the petitioner does not have a cause of action for relief pursuant to CPLR article 78 (see Matter of O'Hara v Board of Educ., Yonkers City Sch. Dist., 198 AD3d at 900). Accordingly, the Supreme Court properly denied the respondents' motion pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition. However, the court should not have awarded the petitioner the ultimate relief sought in the petition, since the respondents had not yet filed an answer or the administrative record (see CPLR 7804[f]; Matter of O'Hara v Board of Educ., Yonkers City Sch. Dist., 198 AD3d at 900; Matter of Irfan v Vullo, 168 AD3d 733, 734).

Accordingly, we remit the matter to the Supreme Court, Nassau County, for the service and filing of an answer and the administrative record, and thereafter for further proceedings consistent herewith.

DILLON, J.P., MALTESE, TAYLOR and LANDICINO, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

 

Courts must construe New York State's Freedom of Information Law [FOIL] liberally, and "require[ ] government agencies to make available for public inspection and copying all records"

Regulations of New York State's Public Employment Relations Board [PERB] include 4 NYCRR 208.3(c), which states, in pertinent part, that "[s]tenographic services at hearings held by [PERB] are provided pursuant to arrangements under which the stenographer has exclusive right to reproduce and sell copies of minutes at hearings. While the minutes of hearings may be inspected at the offices of [PERB], any person desiring a copy of minutes must make arrangements directly with the stenographer."

Addressing 4 NYCRR 208.3(c), the Appellate Division noted "It is established as a general proposition that a regulation cannot be inconsistent with a statutory scheme" and opined 4 NYCRR 208.3(c) "is inconsistent with State Administrative Procedure Act §302 (2), which imposes a duty on the agency to furnish a copy of the transcript to a party upon request." 

Further, said the Appellate Division, 4 NYCRR 208.3(c) "... is inconsistent with the statutory scheme of FOIL," which '"imposes a broad standard of open disclosure in order to achieve maximum public access to government documents'", citing  Matter of Schenectady County Socy. for the Prevention of Cruelty to Animals, Inc. v Mills, 74 AD3d 1417.

 

Matter of DeWolf v Wirenius

2024 NY Slip Op 03790

Decided on July 11, 2024

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered:July 11, 2024

CV-24-0019

[*1]In the Matter of Andrew P. DeWolf, Appellant,

v

John Wirenius, as FOIL Appeals Officer, et al., Respondents.

Calendar Date:June 4, 2024
Before:Egan Jr., J.P., Clark, Reynolds Fitzgerald, McShan and Powers, JJ.

Andrew P. DeWolf, Lyons, appellant pro se.

Letitia James, Attorney General, Albany (Beezly J. Kiernan of counsel), for John Wirenius and another, respondents.

Daniel C. Connors, County Attorney, Lyons (Erin M. Hammond of counsel), for Kelley Loveless, respondent.

Reynolds Fitzgerald, J.

Appeal from a judgment of the Supreme Court (Christina L. Ryba, J.), entered December 11, 2023 in Albany County, which, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, granted respondents' motions to dismiss the petition/complaint.

In 2022 through 2023, petitioner and Wayne County were involved in administrative hearings held before the Public Employment Relations Board (hereinafter PERB). In July 2022, petitioner submitted a Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL]) request to the County for copies of hearing transcripts. Petitioner's initial request was denied by the County's records access officer, respondent Kelley Loveless, and this denial was administratively upheld by the County's records access appeals officer. Subsequently, petitioner received a favorable advisory opinion from the Committee on Open Government ^[FN1] finding the County's purported exemptions to disclosure misplaced; therefore the appeals officer reversed the earlier decision and, in October 2022, granted petitioner access to and provided copies of the transcripts. Petitioner made successive FOIL requests for additional hearing transcripts. In response, the County certified that it had no records responsive to his requests. The County's records access appeals officer administratively affirmed the determination.

In January 2023, petitioner sought the hearing transcripts via a FOIL request submitted to PERB. The FOIL officer, respondent Sarah Coleman, initially advised petitioner that he could inspect the transcripts at PERB's office, but that since the transcripts are the private work product owned by the stenographer, who has the exclusive right to reproduce and sell copies of the minutes, petitioner would not be allowed to make copies of same. Coleman further directed that petitioner contact the stenographer to make arrangements to receive copies of the transcripts or, if petitioner so directed, PERB would contact the stenographer on his behalf. In February 2023, Coleman formally denied petitioner's request for copies of the hearing transcripts — citing to PERB's regulation contained in 4 NYCRR 208.3 (c), stating that "[s]tenographic services at hearings held by [PERB] are provided pursuant to arrangements under which the stenographer has exclusive right to reproduce and sell copies of minutes at hearings. While the minutes of hearings may be inspected at the offices of [PERB], any person desiring a copy of minutes must make arrangements directly with the stenographer." Respondent John Wirenius, PERB's records access appeals officer, administratively affirmed the determination.

Petitioner commenced this combined proceeding pursuant to CPLR article 78 to challenge respondents' determinations and action for declaratory judgment declaring that 4 NYCRR 208.3 violates FOIL. In lieu of answering, respondents moved to dismiss the petition/complaint. Supreme Court granted the motions and dismissed the petition[*2]/complaint, finding that the affirmations of Loveless and the county attorney's secretary certifying that the County did not possess the requested records satisfied Public Officers Law § 89 (3), and that petitioner's contention that respondents are impermissibly withholding the requested transcripts is unsupported speculation. The court further found that petitioner's remaining contentions and claims lacked merit. Petitioner appeals.

As a preliminary matter, Supreme Court also dismissed the petition/complaint against the Attorney General. The record confirms that petitioner's request for information was directed to and denied exclusively by the County and PERB. Inasmuch as the Attorney General's office was not an agency involved in the FOIL request, and is without authority to grant relief requested by petitioner, the Attorney General is not a proper party herein (see Matter of Davis v Evans, 97 AD3d 857, 858 [3d Dept 2012]; Matter of Abreu v Hogan, 72 AD3d 1143, 1144 [3d Dept 2010], appeal dismissed 15 NY3d 836 [2010]).

As to the FOIL requests denied by the County, petitioner contends that Loveless failed to perform a diligent search for the requested records and thus improperly certified that the County was not in possession of the records. "Under FOIL, all government records are presumptively open for public inspection and copying unless they fall within one of the enumerated exemptions of Public Officer[s] Law § 87 (2)" (Matter of Aron Law PLLC v Sullivan County, 214 AD3d 1186, 1188 [3d Dept 2023] [internal quotation marks and citations omitted]; see Matter of Cohen v Alois, 201 AD3d 1104, 1105 [3d Dept 2022]). "[A] government entity that does not supply any record in response to a FOIL request 'shall certify that it does not have possession of such record or that such record cannot be found after diligent search' " (Matter of Thomas v Kane, 203 AD3d 1487, 1489 [3d Dept 2022], quoting Public Officers Law § 89 [3] [a]). " 'Neither a detailed description of the search nor a personal statement from the person who actually conducted the search is required' " (Matter of Jackson v Albany County Dist. Attorney's Off., 176 AD3d 1420, 1421 [3d Dept 2019], quoting Matter of Rattley v New York City Police Dept., 96 NY2d 873, 875 [2001])."Where an agency properly certifies that it does not possess a requested record, a petitioner may be entitled to a hearing on the issue if [he or she] can articulate a demonstrable factual basis to support the contention that the requested document[s] exist[ ] and [were] within the agency's control" (Matter of Jewish Press, Inc. v New York State Police, 207 AD3d 971, 973 [3d Dept 2022] [internal quotation marks, brackets and citations omitted]; see Matter of Cortex Tel. LLC v New York State Dept. of Health, 222 AD3d 1083, 1085 [3d Dept 2023]).

In support of the County's motion to dismiss the petition, the County submitted the affidavits of Loveless and the county attorney's secretary. Loveless averred that after receiving [*3]each of petitioner's FOIL requests "[she], or someone delegated by [her], contacted Wayne County's outside counsel handling the PERB proceeding and inquired as to whether she was in possession of the transcripts requested. . . . Each time, [she] or [her] representative, was informed by Wayne County's outside counsel that she had elected NOT to order the transcripts and was not in possession of them." She further averred that "[she], or [her] representative, also contacted the relevant department head (in this case, the department head for Advanced Life Support)^[FN2] to ensure he did not possess the transcripts at issue. Each time inquiry was made of him, the department head stated he did not possess any of the transcripts sought by [p]etitioner." Thereafter, Loveless issued certifications that the County had no records responsive to petitioner's requests for transcripts. Additionally, the county attorney's secretary — who assists Loveless in processing and responding to FOIL requests — avowed that, after receiving each of petitioner's requests, she directly contacted the County's outside counsel and inquired as to whether she was in possession of the additional transcripts requested, and was informed by outside counsel that she had elected not to order the transcripts and was not in possession of them. The secretary further avowed that she had also contacted the relevant department head to ensure he did not possess the transcripts at issue, and was informed by him that he did not possess any of the transcripts sought by petitioner and that she then advised Loveless of this information. These affidavits satisfied the County's obligation under Public Officers Law § 89 (3) (see Matter of Aron Law PLLC v Sullivan County, 214 AD3d at 1189; Matter of Jackson v Albany County Dist. Attorney's Off., 176 AD3d at 1421).

Notwithstanding the County's representations that outside counsel elected not to order the transcripts, petitioner submitted copies of invoices showing that counsel had ordered and been billed for transcripts of the requested hearings. Additionally, at oral argument, counsel relayed that she spoke to outside counsel, who stated that she ordered the transcripts but did not obtain them because she did not want to turn the transcripts over to petitioner. As such, we remit the matter to Supreme Court for a hearing on the issue of whether Loveless properly certified that the requested documents are not within the County's control, as a "[r]ecord means any information kept, held, filed, produced or reproduced by, with or for an agency" (Public Officers Law§ 86 [4] [internal quotation marks omitted]; see Matter of Gould v New York City Police Dept., 89 NY2d 267, 278-279 [1996]; Matter of Binghamton Precast & Supply Corp. v New York State Thruway Auth., 196 AD3d 944, 946 [3d Dept 2021]).

As to PERB's denial of petitioner's requests for hearing transcripts, petitioner contends that 4 NYCRR 208.3 violates the mandates of FOIL. "FOIL requires that an agency[*4], in accordance with its published rules, make available for public inspection and copying all records, except those records or portions thereof that are statutorily exempt from disclosure" (Matter of Spence v New York State Dept. of Civ. Serv., 223 AD3d 1019, 1020 [3d Dept 2024] [internal quotation marks and citations omitted]). Likewise, the State Administrative Procedure Act requires that "[u]pon request made by any party upon the agency within a reasonable time, but prior to the time for commencement of judicial review, of its giving notice of its decision, determination, opinion or order, the agency shall prepare the record together with any transcript of proceedings within a reasonable time and shall furnish a copy of the record and transcript or any part thereof to any party as he [or she] may request" (State Administrative Procedure Act § 302 [2] [emphasis added]). In response to petitioner's FOIL request, PERB stated that petitioner had to obtain the records from the stenographer in accordance with 4 NYCRR 208.3 (c).

"It is established as a general proposition that a regulation cannot be inconsistent with a statutory scheme" (Matter of Zuckerman v New York State Bd. of Parole, 53 AD2d 405, 407 [3d Dept 1976] [citation omitted]; see Matter of Jones v Berman, 37 NY2d 42, 53 [1975]; Sciara v Surgical Assoc. of W. N.Y., P.C., 104 AD3d 1256, 1257 [4th Dept 2013], appeal dismissed 22 NY3d 951 [2013]). Here, 4 NYCRR 208.3 (c) is inconsistent with State Administrative Procedure Act § 302 (2), which imposes a duty on the agency to furnish a copy of the transcript to a party upon request.^[FN3] Moreover, it is inconsistent with the statutory scheme of FOIL, which "imposes a broad standard of open disclosure in order to achieve maximum public access to government documents" (Matter of Schenectady County Socy. for the Prevention of Cruelty to Animals, Inc. v Mills, 74 AD3d 1417, 1418 [3d Dept 2010] [internal quotation marks, brackets and citation omitted], affd 18 NY3d 42 [2011]; see Matter of Prisoners' Legal Servs. of N.Y. v New York State Dept. of Corr. & Community Supervision, 173 AD3d 8, 10 [3d Dept 2019]).Courts must construe FOIL liberally, to "require[ ] government agencies to make available for public inspection and copying all records" (Matter of Madeiros v New York State Educ. Dept., 30 NY3d 67, 73 [2017] [internal quotation marks and citations omitted]; see Matter of Broach & Stulberg, LLP v New York State Dept. of Labor, 195 AD3d 1133, 1134 [3d Dept 2021], lv denied 37 NY3d 914 [2021]). Accordingly, Supreme Court improperly granted PERB's motion to dismiss and we remit the matter to Supreme Court for PERB to file an answer pursuant to CPLR 7804 (f). Petitioner's remaining contentions, to the extent not specifically addressed, have been examined and found to be lacking in merit or rendered academic.

Egan Jr., J.P., Clark, McShan and Powers, JJ., concur.

ORDERED that the judgment is modified, on the law, without costs, by reversing so much [*5]thereof as dismissed the petition against respondents Kelley Loveless, John Wirenius and Sarah Coleman; matter remitted to the Supreme Court to permit PERB to serve an answer within 20 days of the date of this Court's decision and for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.

Footnotes

Footnote 1: The Committee on Open Government oversees and advises the government, public and news media on FOIL and other open meetings laws. The committee offers guidance in response to inquiries and prepares written legal advisory opinions to the government and other interested groups (see Public Officers Law § 89 [1] [b]).

Footnote 2: Petitioner was employed in the advanced life support department and it is the county department involved in the administrative hearings.

Footnote 3: Petitioner is required to pay a statutory fee for said copy.

 

 

Reviewing a determination of the New York State Comptroller denying petitioner's application for a recalculation of his final average salary for the purposed of determining the pension portion of his retirement benefit to be paid by the New York State and Local Retirement System

The New York State Comptroller is vested with the exclusive authority to resolve applications for retirement benefits and the "determination must be upheld if [the] interpretation of the controlling retirement statute is reasonable and the underlying factual findings are supported by substantial evidence".

The New York State Retirement and Social Security Law provides a member's retirement benefit is based upon his or her final average salary, i.e., the average salary earned by such member during any three consecutive years which provide the highest average salary" and, with respect to the payment of overtime, General Municipal Law §90 authorizes governing boards to provide for the payment of overtime compensation to public officers and public employees who "are required to work in excess of their regularly established hours of employment" and mandates that the payments be considered as salary "for any of the purposes of any pension or retirement system."

As this language must be strictly construed in view "of the constitutional provision against the expenditure of public funds absent express statutory authority",  "overtime payments are not duly authorized or considered as salary within the meaning of General Municipal Law §90 unless paid pursuant to 'an overtime plan setting forth in detail the terms, conditions and remuneration for such employment'".

In this instance the Appellate Division annulled so much of the Comptroller's calculation as excluded certain holiday pay from the calculation of petitioner's final average salary and granted the petitioner's petition to that extent and matter remitted to the Comptroller for further proceedings "not inconsistent with this Court's decision" and, "as so modified, confirmed" the Comptroller's calculation of the petitioner's pension benefit.

Matter of Gallante v DiNapoli

2024 NY Slip Op 03370

Decided on June 20, 2024

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered:June 20, 2024

CV-23-1408

[*1]In the Matter of Tory Gallante, Petitioner,

v

Thomas P. DiNapoli, as State Comptroller, et al., Respondents.

Calendar Date:April 25, 2024
Before:Egan Jr., J.P., Aarons, Fisher, McShan and Mackey, JJ.

Gleason, Dunn, Walsh & O'Shea, Albany (Ronald G. Dunn of counsel), for petitioner.

Letitia James, Attorney General, Albany (Kevin C. Hu of counsel), for respondents.

Aarons, J.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Comptroller denying petitioner's application for recalculation of his final average salary.

After a 30-year career as a firefighter, petitioner retired as Chief of the Arlington Fire District in March 2019 and began collecting retirement benefits. In 2020, the New York State and Local Retirement System notified petitioner that, after receiving salary information from the District, certain earned compensation would be excluded from the calculation of his final average salary. Accordingly, petitioner's monthly retirement benefit amount was reduced, and petitioner was advised that he would be charged with an overpayment. Petitioner applied for a hearing and redetermination of his retirement benefits (see Retirement and Social Security Law §§ 74 [d]; 374 [d]). Following a hearing, the Hearing Officer determined that the Retirement System properly excluded petitioner's overtime pay, a staff development stipend and a portion of holiday pay from his final average salary. Respondent Comptroller adopted the Hearing Officer's findings of fact and conclusions of law and denied petitioner's application, prompting this CPLR article 78 proceeding.

The Comptroller is vested with the exclusive authority to resolve applications for retirement benefits and the "determination must be upheld if [the] interpretation of the controlling retirement statute is reasonable and the underlying factual findings are supported by substantial evidence" (Matter of Schwartz v McCall, 300 AD2d 887, 888 [3d Dept 2002] [internal citations omitted]; accord Matter of O'Brien v DiNapoli, 116 AD3d 1124, 1125 [3d Dept 2014]). "Consistent with the provisions of the Retirement and Social Security Law, a member's retirement benefit is based upon his or her final average salary, i.e., the average salary earned by such member during any three consecutive years which provide the highest average salary" (Matter of Glozek v DiNapoli, 221 AD3d 1231, 1233 [3d Dept 2023] [internal quotation marks, ellipsis and citations omitted]; see Retirement and Social Security Law § 2 [9]).

Regarding the payment of overtime, General Municipal Law § 90 authorizes governing boards to provide for the payment of overtime compensation to public officers and public employees who "are required to work in excess of their regularly established hours of employment" and mandates that the payments be considered as salary "for any of the purposes of any pension or retirement system." This language must be strictly construed in view "of the constitutional provision against the expenditure of public funds absent express statutory authority" (Conrad v Regan, 175 AD2d 629, 629-630 [4th Dept 1991], lv denied 78 NY2d 860 [1991]; see NY Const, art VIII, §1; Matter of Murray v Levitt, 47 AD2d 267, 269 [3d Dept 1975], lv denied 37 NY2d 707 [1975]). Consequently, "overtime [*2]payments are not duly authorized or considered as salary within the meaning of General Municipal Law § 90 unless paid pursuant to 'an overtime plan setting forth in detail the terms, conditions and remuneration for such employment' " (Matter of Shames v Regan, 132 AD2d 743, 744 [3d Dept 1987] [emphasis omitted], quoting Matter of Murray v Levitt, 47 AD2d at 269; see Matter of Mowry v New York State Employees' Retirement Sys., 54 AD2d 1062, 1063 [3d Dept 1976]).

Petitioner first contends that the Comptroller's interpretation of General Municipal Law § 90 is unreasonable. We disagree. At the hearing, the assistant director of the Retirement System's Benefit Calculation and Disbursements Bureau explained that, under General Municipal Law § 90, salary may only include overtime payments that are part of a comprehensive written overtime plan. To determine whether petitioner's employment agreements with the Arlington Fire District Board of Fire Commissioners met the requirements of such a plan, the Retirement System considered five factors: (1) the amount of compensation to be paid; (2) whether there is a cap on the compensation; (3) whether the plan provides when and how the payments are made; (4) whether approval is required prior to the overtime being performed; and (5) whether the plan provides that the pay is for work performed beyond the regular workday. In our view, these factors rationally correspond to statutory language authorizing overtime for employees who "are required to work in excess of their regularly established hours of employment" at either their regular rate of pay or some other rate set by the governing board (General Municipal Law § 90 [emphasis added]; see Matter of Bascom v McCall, 221 AD2d 879, 880 [3d Dept 1995]; Conrad v Regan, 175 AD2d at 629-630; Matter of Shames v Regan, 132 AD2d at 745).

Next, and contrary to petitioner's view, the Comptroller rationally excluded petitioner's overtime payments because the employment agreements (i) did not prescribe when and how overtime would be worked, (ii) did not identify petitioner's regularly scheduled hours of employment, and (iii) did not indicate whether prior approval was required for the performance of overtime work. The agreements established that petitioner's "[w]orking hours will be 40 hours per week on a five day a week basis." Although "[t]he typical work week is Monday through Friday," petitioner had discretion to vary his weekly schedule "for the best use to fit the District's needs." Further, neither the agreements nor the Board's eight-hour workday resolution specified which hours of the day petitioner was required to work. Taken together, the Comptroller rationally concluded that petitioner did not have "regularly established hours" within the meaning of General Municipal Law § 90.

As to overtime requirements, the agreements specified that any work in excess of 40 hours per week would be paid with compensatory time. According to the record and representations at oral [*3]argument, compensatory time was generally calculated at petitioner's hourly rate of pay. Petitioner testified that he earned compensatory time for off-hours meetings and non-emergency work. Emergency call-back hours — time spent fighting fires outside of the regular workday — were compensated at time and a half pay. Although these provisions authorized petitioner to work overtime, they did not specify any terms or conditions that would require him to do so (see General Municipal Law § 90; Conrad v Regan, 175 AD2d at 629-630). Given the absence of a provision for prior approval — a finding that petitioner does not dispute — the Comptroller appropriately found that the agreements do not cover when or how petitioner worked overtime.^[FN1] In sum, because the employment agreements appear to have given petitioner a "free hand in determining when and for how long [he] would work" (Matter of Murray v Levitt, 47 AD2d at 269), the Comptroller's determination excluding petitioner's overtime payments from his final average salary is reasonable, supported by substantial evidence and will not be disturbed (see Matter of Shames v Regan, 132 AD2d at 745; Matter of Mowry v New York State Employees' Retirement Sys., 54 AD2d at 1063).

Petitioner also challenges the exclusion of the increased compensation paid to him in 2019 for staff development from his final average salary. "Pursuant to the Retirement and Social Security Law, the salary base used to compute retirement benefits shall not include . . . compensation paid in anticipation of retirement" (Matter of Franks v DiNapoli, 53 AD3d 897, 898 [3d Dept 2008] [internal quotation marks and citation omitted]; see Retirement and Social Security Law § 431 [3]; Matter of Smith v DiNapoli, 167 AD3d 1208, 1209-1210 [3d Dept 2018]). "In determining what constitutes . . . compensation paid in anticipation of retirement, we must look to the substance of the transaction and not to what the parties may label it" (Matter of Green v Regan, 103 AD2d 878, 878-879 [3d Dept 1984]; see Matter of Smith v DiNapoli, 167 AD3d at 1210; Matter of Chichester v DiNapoli, 108 AD3d 924, 925 [3d Dept 2013]). The record reflects that petitioner informed the Board in 2018 that he was planning on retiring. By stipulation entered into in January 2019, the Board increased petitioner's hourly rate of pay by $15 effective January 7, 2019 to March 31, 2019. According to the stipulation and testimony, the extra compensation was to train his successor — a newly appointed Deputy Chief — and staff before he retired and took with him all of his institutional knowledge. Yet, the record shows petitioner's job already included planning and directing the training of staff and that petitioner had not received staff development stipends in the past. Further, the stipend was not limited to the time spent on work it was intended to compensate — it was essentially a $15 per hour raise. Accordingly, substantial evidence supports the Comptroller's determination that the [*4]January 2019 pay increase constituted compensation in anticipation of retirement and was properly excluded from the calculation of petitioner's final average salary (see Matter of Chichester v DiNapoli, 108 AD3d at 926; Matter of Franks v DiNapoli, 53 AD3d at 898).

Finally, the Retirement System concedes, and we agree, that the calculation of petitioner's final average salary improperly failed to take into account all 144 hours of his earned holiday pay. Accordingly, the matter must be remitted for a recalculation of petitioner's final average salary that includes 144 hours of holiday pay. Petitioner's remaining contentions, to the extent not specifically addressed, have been examined and found to be without merit.

Egan Jr., J.P., Fisher, McShan and Mackey, JJ., concur.

ADJUDGED that the determination is modified, without costs, by annulling so much thereof as excluded certain holiday pay from the calculation of petitioner's final average salary; petition granted to that extent and matter remitted to respondent Comptroller for further proceedings not inconsistent with this Court's decision; and, as so modified, confirmed.

Footnotes

Footnote 1: Petitioner testified that, under the District's time tracking system, he would fill out a form indicating the overtime he had worked on a given day either immediately after completing the work or the day after. According to petitioner, the Board had the option of reviewing payroll records at their twice-monthly meetings after the payroll process was complete. In other words, this system "does not set out any procedure for the regulation of overtime" worked by petitioner (Matter of Shames v Regan, 132 AD2d at 745), and therefore does not affect our conclusion.

 

Where the petitioner has substantially prevailed in a Freedom of Information action and the custodian of the records had no reasonable basis for denying access to the responsive documents created prior to June 12, 2020, the petitioner is entitled to reasonable attorney's fees and litigation costs

Supreme Court, among other things, denied that branch of the petition which was to compel the production of certain police officer disciplinary records created prior to June 12, 2020, and, in effect, denied that branch of the petition which was for an award of attorney's fees and litigation costs. The petitioner appealed Supreme Court's ruling.

Noting that Civil Rights Law §50-a formerly provided "a blanket shield from public disclosure for police officer personnel records, including records relating to disciplinary proceedings arising out of allegations of misconduct", the Appellate Division pointed out that effective June 12, 2020, the New York State Legislature repealed Civil Rights Law §50-a and amended the Public Officers Law to make specific provisions relating to the disclosure of law enforcement disciplinary records and the types of redactions to be made thereto prior to disclosure, citing Laws of 2020, Chapter 96.

Accordingly, the Appellate Division concluded that Supreme Court should have granted that branch of the petition which sought disciplinary records created prior to the repeal of Civil Rights Law §50-a on June 12, 2020.

Matter of New York Civ. Liberties Union v Nassau County

2024 NY Slip Op 03427

Decided on June 20, 2024

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 20, 2024 

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

VALERIE BRATHWAITE NELSON, J.P.
LINDA CHRISTOPHER
LARA J. GENOVESI
LOURDES M. VENTURA, JJ.

2022-04443
(Index No. 612605/21)

[*1]In the Matter of New York Civil Liberties Union, appellant,

v

Nassau County, et al., respondents.

Milbank LLP (Errol Taylor, Atara Miller, Andrew Wellin, Samantha Lovin, Gio Crivello, Monica Grover, Lyndsey Pere, Rebecca Olson, Meredith Brumfield, and New York Civil Liberties Union Foundation, New York, NY [Robert Hodgson and Lisa Laplace], of counsel), for appellants.

Thomas A. Adams, County Attorney, Mineola, NY (Robert F. Van der Waag and Ian Bergström of counsel), for respondents.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78, inter alia, to compel the production of certain records pursuant to the Freedom of Information Law (Public Officers Law art 6), the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Nassau County (Roy S. Mahon, J.), entered May 2, 2022. The order and judgment, insofar as appealed from, denied that branch of the petition which was to compel the production of certain disciplinary records created prior to June 12, 2020, and, in effect, denied that branch of the petition which was for an award of attorney's fees and litigation costs.

ORDERED that the order and judgment is reversed insofar as appealed from, on the law, with costs, those branches of the petition which were to compel the production of disciplinary records created prior to June 12, 2020, and for an award of attorney's fees and litigation costs are granted, and the matter is remitted to the Supreme Court, Nassau County, for a determination of the amount of an award of reasonable attorney's fees and litigation costs to the petitioner and the entry of an appropriate judgment thereafter.

On September 15, 2020, the petitioner filed a request pursuant to the Freedom of Information Law (Public Officers Law art 6; hereinafter FOIL) for, inter alia, the production of certain disciplinary records of the Nassau County Police Department (hereinafter the NCPD) from January 1, 2000, to the present. When the NCPD did not timely respond to the petitioner's request, the petitioner filed an administrative appeal, alleging constructive denial of its request. In a letter dated June 3, 2021, the Commissioner of the NCPD denied so much of the request as sought disciplinary records created prior to the repeal of Civil Rights Law § 50-a, which was on June 12, 2020.

In October 2021, the petitioner commenced this proceeding pursuant to CPLR article 78 to compel the production of materials sought in its FOIL request, and for an award of attorney's fees and litigation costs incurred by the petitioner in connection with this proceeding. By order and judgment entered May 2, 2022, the Supreme Court, among other things, denied that branch of the petition which was to compel the production of certain disciplinary records created prior to June 12, 2020, and, in effect, denied that branch of the petition which was for an award of attorney's fees and [*2]litigation costs. The petitioner appeals.

Former Civil Rights Law § 50-a provided "a blanket shield from public disclosure for police officer personnel records, including records relating to disciplinary proceedings arising out of allegations of misconduct" (Matter of Newsday, LLC v Nassau County Police Dept., 222 AD3d 85, 88; see Matter of New York Civ. Liberties Union v New York City Police Dept., 32 NY3d 556, 563-566). Effective June 12, 2020, the Legislature repealed Civil Rights Law § 50-a and amended the Public Officers Law to make specific provisions relating to the disclosure of law enforcement disciplinary records and the types of redactions to be made thereto prior to disclosure (see L 2020, ch 96; Matter of Newsday, LLC v Nassau County Police Dept., 222 AD3d at 88).

The Supreme Court should have granted that branch of the petition which sought disciplinary records created prior to the repeal of Civil Rights Law § 50-a on June 12, 2020. The petitioner made the subject FOIL request in September 2020, after the legislative amendments to the Public Officers Law were enacted, and, thus, the petitioner is not seeking retroactive application of the statutory amendments to a pending FOIL request (see Matter of Newsday, LLC v Nassau County Police Dept., 222 AD3d at 92-93; Matter of NYP Holdings, Inc. v New York City Police Dept., 220 AD3d 487, 489).

Since the petitioner has substantially prevailed in this proceeding, and the NCPD had no reasonable basis for denying access to the responsive documents created prior to June 12, 2020, the petitioner is entitled to an award of reasonable attorney's fees and litigation costs incurred (see Public Officers Law § 89[4][c][ii]; Matter of NYP Holdings, Inc. v New York City Police Dept., 220 AD3d at 489; Matter of Ateres Bais Yaakov Academy of Rockland v Town of Clarkson, 218 AD3d 462, 466). Accordingly, we remit this matter to the Supreme Court, Nassau County, for a determination of the amount of an award of reasonable attorney's fees and litigation costs to the petitioner.

BRATHWAITE NELSON, J.P., CHRISTOPHER, GENOVESI and VENTURA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court