Links to selected items concerning government operations posted on the Internet during the week ending July 26, 2024

Accela Acquires Permit Tech Company OpenCounter from Euna  OpenCounter, known for its permitting and licensing portals, was one of the original six companies to form the company now called Euna Solutions. Now, OpenCounter will join a fellow permitting-focused company in Accela. READ MORE

Ada County, Idaho, Takes Dispatch Offline Amid Cyber Concerns  The Ada County Sheriff’s Office spotted “unusual activity” and “proactively” deactivated computer-aided dispatch. Officials are working with third-party cybersecurity and data forensics consultants to investigate. READ MORE

Amazon Names New Cohort of Government, Tech Cloud Leaders  The move comes as the e-commerce giant’s Amazon Web Services continues to gain more footing in the public sector. Meanwhile, gov tech accelerator CivStart provides an update of its own work promoting innovation. READ MORE

Apple and Nashville Seek Out the Future of 911 Tech  The looming release of iOS 18 promises to bring improvements to emergency call handling and dispatching. Nashville, meanwhile, has begun using a new 911 call platform designed to make life more efficient for emergency call takers. READ MORE

 

Are Miami’s Active Shooter Drills Making Schools Safer?  Some experts believe that active shooter drills that aim to simulate a real-life situation can often traumatize participants. But the chief of the Miami-Dade Schools police says they’re helpful for officers to learn.  READ MORE

Attracting and Empowering Today's Top Talent  Staff shortages, heavy workloads, and outdated technology hinder teams, leading to poor service. Frustrated workers leave, forcing governments to train new hires in a tough job market lacking essential job perks. DOWNLOAD

Box Office Boon or Taxpayer Boondoggle? The Payoff of State Film Tax Credits  Audits in a number of states have found that tax incentive programs for film and TV end up as money losers. Although some states are considering capping their programs, more are expanding theirs.  READ MORE

Calif. Earmarks $10.4M for Key Step in Payroll Modernization  The money, allocated by a budget trailer bill, will enable the California State Payroll System Project to hire a system integrator. The initiative, underway since 2016, will replace a significant piece of legacy. READ MORE

California Law Would Safeguard Public Against AI Risks The proposed bill is the Safe and Secure Innovation for Frontier Artificial Intelligence Models Act. It would regulate “development and deployment of advanced AI models,” in part by creating a new regulator, the Frontier Model Division. READ MORE

Cameras With AI Shoot for Early Fire Detection in Hawaii  The Hawaiian Electric Co. has begun installing high-resolution video cameras with artificial intelligence technology, to spot ignitions early in areas near its equipment that have elevated fire risk. READ MORE

Can Human-Centered Design Help Rebuild Trust in Government?  States are investing in ways to incorporate the end user's experience into digital services, looking at how people truly use platforms and how to improve them. Some say it’s what government should have been doing all along. READ MORE

Chattanooga Makes Technologist Jerele Neeld Permanent CIO  The Tennessee city has affirmed Jerele Neeld as chief information officer, roughly four months after he became its interim CIO. Neeld joined Chattanooga in January after a career in the private sector. 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

Cops and the Perils of ‘De-escalation’ Talk instead of fight: It’s a crucial tool for police officers confronting people in crisis. But too often when it isn’t working, a reluctance to use non-lethal force leads to a shooting. What’s needed are better training and a cultural shift. READ MORE 

Customer Experience and Accessibility Collide  From principles of human-centered design to adhering to web accessibility best practices, the new issue of Government Technology explores what it takes to make online government truly work for all residents. READ MORE

Cybersecurity Update Causes Worldwide Microsoft Outages  A flawed update for cybersecurity software from the company CrowdStrike caused many Windows machines to crash. Around the globe, hospitals, airlines, 911 services, banks and others reported disruptions. READ MORE

Dallas Auto Thefts Coming Down After Record-Breaking 2023  Texas ranked 10th in the nation for auto thefts per capita last year and Dallas had the fifth-highest number of car thefts among U.S. cities. But early data from this year reports that thefts are down by about 7.25 percent so far. READ MORE

Dallas Ransomware Attack Exposed Info for 200,000 People  More than 200,000 people nationwide had their Social Security numbers, medical information, health insurance details and other data exposed during a Dallas County ransomware attack last fall. READ MORE

Dallas Will Combine Departments to Save $1.3M  The merger will combine departments that oversee zoning and permitting, the 311, non-emergency line, real estate deals and workforce challenges. At least one office is eliminating 5 positions. READ MORE

Enhancing Government Services with Payment Innovations  In this fast-paced digital era, the expectations of constituents are evolving at an unprecedented rate. However, attempting to constantly keep up with shifting experiential standards is a costly, time-consuming, and nearly impossible task for billers. Maintaining a positive customer experience is key to keeping call volumes down, customer satisfaction scores high, and ensuring constituents are willing to make desired actions like signing up for paperless billing and AutoPay. DOWNLOAD

EV Chargers Gaining Ground at California Curbs, Apartments  GreenWealth Energy and Voltpost will expand low-speed, dwell charging at multifamily housing locations and curbside, to make electric vehicles a more workable solution for renters and people with lower incomes. READ MORE

Exploring Next-Gen Citizen Services — ICYMI  Granicus CEO Mark Hynes outlines the role of technology in modernizing government services and discusses strategies for enhancing citizen engagement and participation. READ MORE

Farmers See Benefits of AI in Agriculture, but Urge Caution  Advocates say that artificial intelligence has the potential to streamline agriculture tasks and help make farming greener. But there are still concerns about wasting time sorting through data and protection of privacy. 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

First Course Served, N.J., Partners to Broaden AI Training  The state announced the release earlier this month of a course on using generative artificial intelligence, for public-sector staffers in New Jersey and elsewhere. More coursework is coming later this summer. READ MORE

Florida Drivers Enjoy Faster, Better Identity Verification Modern identity technology strengthens fraud protection for the state’s online motor vehicle portal and saves residents a projected 157,000 hours of friction annually. READ MORE

Getting Connected: How Wide Is the Digital Divide?  Buoyed by unprecedented federal funding as well as a widely accepted understanding that Internet is a fundamental part of modern life, states and cities confront the remaining obstacles to getting everyone online. READ MORE

Henderson, Nev., Taps Russell Nelson as Acting Director of IT  The city’s former Director of IT Alyssa Rodriguez has been appointed chief infrastructure officer/assistant city manager. Russell Nelson, now acting director of IT, had been Henderson’s deputy CIO for more than a decade. READ MORE

Homeless Camp Cleanups Aren’t a Permanent Solution  A study by Rand Corp. found that homeless encampment cleanups across Los Angeles saw immediate reductions but within a month or two, the numbers went back to the former level. 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 to Navigate IT Challenges in Government   The public sector faces some unique challenges when it comes to IT management. Here’s what government IT organizations are doing to tackle problems and deliver a great user experience. READ MORE

If AI Puts Everyone Out of Work, Is UBI the Solution?  The company behind ChatGPT funded a three-year research program on the impacts of universal basic income. It found that the extra income allowed participants to be more selective about career choices and have more time for leisure.   READ MORE

Illinois Has Already Had 100 Tornadoes, Double Annual Average  On Monday, July 15, Chicago issued 16 tornado warnings, the most sent on a single day since 2004. In an average year, the state only experiences 50 tornadoes annually. But as the air becomes more humid, tornadoes will become more common. READ MORE 

Inside Minnesota’s Dollar-Driven Cyber Defense Tool  Minnesota’s new cybersecurity tool translates cyber risk into dollars and cents, empowering agencies to make data-driven decisions that protect critical assets and optimize security spending. READ MORE

Like Election Systems, Voter Registration Must Be Cyber Secure  Panelists in a recent webinar discussed how bad actors might want to tamper with voter registration databases — and how election offices around the country have been working to stay resilient against threats. READ MORE

Los Angeles Courthouses Close for Ransomware Recovery  The Superior Court of Los Angeles County was hit by ransomware Friday, disrupting “many critical systems.” The courthouses remained closed Monday as the jurisdiction worked to recover from the cyber attack. READ MORE

 

Maryland Is on Track to Process Nearly 50 Years of Rape Kits  A new law extends the state’s sexual assault evidence protections to cover DNA samples. But getting justice in hundreds of cold cases will require more than just testing, survivors say. READ MORE

 

Massachusetts Doles Out $7M for Cybersecurity  The Municipal Local Cybersecurity Grant Program is doling out nearly $7 million to cities and towns, regional school districts, and other local governments within the state. READ MORE

Miami: The Under-Appreciated Urban Success Story  Florida’s once crime-ridden metropolis has forged a new identity in the 21st century.  READ MORE

Omaha’s New $27M Juvenile Jail Might Never Open  A year after the controversial project’s completion, the Douglas County Youth Center remains empty. Even with that, there are more kids in custody than beds in the county’s controversial detention center.  READ MORE

Philly City Workers Return to Dirty Offices, Missing Desks  Under a new mandate, city workers returned to the office full time last week. However, about a dozen workers described the chaotic transition that included animal droppings, missing desks and ongoing construction. READ MORE

Prepare for Your Mission With Verizon Frontline Get the tools, technology and 5G you need to prepare for the mission ahead. LEARN MORE

 

Ransomware Remains a ‘Brutal’ Threat in 2024  Several recently released cyber industry reports show steady or growing ransomware numbers in 2024 so far, and impacts on business and government have never been greater. READ MORE

Red-State Cities and Suburbs Are Becoming More Diverse  The swing states of Georgia, Nevada and Pennsylvania are changing — and fast. READ MORE

San Diego’s Growth Plan Aims to Reverse Racial Segregation  If approved, the changes would be the first major amendments to the city’s general plan since 2008. Blueprint SD would change zoning across the city to reverse decades of racial and ethnic segregation. 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

Shouldn’t Officials Who Oversee Their Own Elections Be Able to Recuse Themselves?  Few states have laws and guidelines for such an apparent conflict of interest. A new report provides a framework for decision-making and legislation.  READ MORE

Small City, Big Potential: How One Ohio City Is Tackling AI  Grove City, Ohio, has taken a cautious, intentional approach to regulating artificial intelligence. An AI policy enacted late last year specifies implementation of AI-powered tools is approved on a case-by-case basis. READ MORE

South Pasadena, Calif., Police Take Entire Fleet Electric  The South Pasadena Police Department is now comprised of 20 Tesla vehicles, a transition that is nearly complete. As electrifying fleets rises in popularity, the force is among the first in the nation to go all electric. READ MORE

States Work to Make Digital Services Accessible for All  With a new requirement from the Department of Justice looming, state and local governments must make their digital services accessible for people with disabilities, but not all are starting from the same place. READ MORE

The Escalating Argument Over Historic Preservation The movement to protect historic buildings seemed unbeatable for decades, but it has spawned sophisticated, well-funded critics — and critics of the critics. Is it really “a good idea that has gone too far”? READ MORE

The Growing Role of the City-Level Chief Data Officer  Just a few years ago, only a handful of cities had chief data officers. Now that the position is more prevalent, experts take stock of what it takes to build an effective, data-driven local government. READ MORE

U.S. Set to Have More EV Chargers Than Gas Stations in 8 Years  At the current pace of development, the number of public electric vehicle chargers across the nation will outnumber gas stations in about eight years. Many even expect charger momentum to increase, shortening the predicted timeline. READ MORE

Using Scarce Dollars With Purpose  Budgeting sets the course for what government will and will not do. An initiative from the Government Finance Officers Association is designed to help long-term planning and foster public trust in a “new normal” of uncertainty.  READ MORE

What Is ‘Surveillance Pricing’ and Is It Causing Increased Prices?  Companies sometimes set “personalized” prices online based on a customer’s ability or willingness to pay, using algorithms and artificial intelligence to sort through data. The FTC is investigating how widespread it is. READ MORE

What the Far-Right Fuss over Voter Rolls Is Really About  Red states are leaving the long-established Electronic Registration Information Center for a new system launched by Alabama. It’s about voter suppression, not election integrity. READ MORE

What’s New in Digital Equity: Federal Grant Program Now Open  Plus, the FCC has launched a new mobile speed test app, HUD’s ConnectHomeUSA program has expanded to new communities, more states have seen their initial proposals for BEAD program funding accepted, and more. READ MORE

Why Might the Election Impact Lead Pipe Replacements?  An estimated 9 million water service lines that still carry drinking water to homes and businesses are made of lead throughout the country. Yet an October deadline and a November election could delay replacement. READ MORE

Will a Transparency Tool Diffuse Election Skepticism?  Ada County, Idaho, has launched a new tool that lets the public view ballot images and cast vote records, using it for the first time for local elections in May. Now, other counties might also adopt it. 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

Teaching about controversial issues in the classroom of a public school

A tenured physical education educator [Petitioner] appealed certain actions by the Board of Education [Respondent] and its Superintendent [collectively “Respondents”] involving the Respondent’s Policy 4810, “Teaching About Controversial Issues”.*

In response to a formal complaint against Petitioner submitted by a student alleging Petitioner made derogatory remarks to students in violation of the Dignity for All Students Act (“Dignity Act”), Respondents commenced a Dignity Act investigation and placed Petitioner on paid administrative leave. Petitioner met with district representatives and responded to the allegations against him. Immediately following this meeting, Respondents:

1. Restored Petitioner from paid administrative leave; and

2. Issued a counseling memorandum to Petitioner advising him that "the investigation had concluded" and, “although a technical violation of [the Dignity Act] was not found' ... going forward, Petitioner should refrain from engaging in “‘debates’ and/or conversations about ‘controversial’ political and societal topics” that fell outside the scope of the physical education curriculum.  The memorandum was added to Petitioner’s personnel file. Petitioner sent Respondents a “Letter of Counsel Rebuttal and Complaint” and ultimately appealed the Respondent's actions to the Commissioner of Education, alleging he "was wrongfully suspended and that the counseling memorandum constituted an impermissible reprimand imposed without the procedural protections of Education Law § 3020-a. Petitioner further alleged that Respondents discriminated against his religious beliefs in violation of Title VII of the Civil Rights Act of 1964 and that the restrictions imposed upon him by the counseling memorandum violate his First Amendment rights.  

For relief, Petitioner sought the removal of the counseling memorandum and any mention of his suspension from his personnel file as well as a name-clearing hearing.  Petitioner additionally sought unspecified relief “for neglect of duties in the form of remediation, training,” and prevention of any “future retaliation” against him.

After addressing several procedural issues, the Commissioner addressed the merits of Petitioner's appeal, holding:

1.  Petitioner failed to prove that Respondent placed him on administrative leave for an unreasonable amount of time;

2.  Citing Holt v Board of Educ., Webutuck Cent. Sch. Dist., et al.,* the Commissioner noted the Court of Appeals articulated a distinction between “admonitions to a teacher [that] are critical of performance” and “disciplinary determinations of a punitive nature.” The former, intended to address “relatively minor breach[es] of school policy,” may be imposed by management in its discretion while the latter may only be imposed following a hearing. 

The Commissioner identified two primary factors to be considered in determining whether written criticism constitutes an impermissible reprimand:  

(1) Whether the letter is directed towards an improvement in performance or a reprimand for prior misconduct; and 

(2) The severity of the misconduct and the admonition/reprimand, citing Appeal of Rogers, 63 Ed Dept Rep, Decision No. 18,364 and Matter of Richardson, 24 id. 104, Decision No. 11,333.

The Commissioner found that the counseling memorandum constituted an administrative evaluation. The Commissioner further opined that the nature of the misconduct was relatively minor:  Petitioner’s unnecessary interjection of his opinions—on topics including finances, politics, and government—into discussions that had no relationship to physical education class , noting that Respondents’ investigation indicated that these remarks did not rise to a violation of the Dignity Act. 

Concluding that Respondents’ admonition to Petitioner, which was factual in nature, explained why Petitioner’s actions and statements were inconsistent with board policy and the district’s expectations, the Commissioner opined that "As such, there is no basis to expunge the counseling memorandum from [Petitioner’s] personnel file".

As to Petitioner's seeking a "name-clearing hearing", the Commissioner noted that Petitioner was not terminated and there is no evidence in the record that Respondents publicly made any defamatory or stigmatizing comments about Petitioner in connection with the matter.

Additionally, to the extent that Petitioner raised claims pursuant to the New York Freedom of Information Law and Open Meetings Law, the Commissioner explained that such allegations are outside the jurisdiction of the Commissioner in an Education Law §310 appeal. 

* Policy 4810  provides that “[i]n the classroom, matters of a controversial nature shall be handled as they arise in the normal course of instruction and not introduced for their own sake. Such issues shall be neither sought nor avoided.”  It further provides that “[w]hen presenting various positions on a controversial issue, the teacher shall take care to balance major views and to assure that as many sides of the issues as possible are presented in a fair manner, with no position being espoused by the teacher as the only one acceptable.”

** 52 NY2d 625.

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

 

Former Fire Chief pleads guilty to stealing and repays more than $18,000 of fire company's funds

New York State Comptroller Thomas P. DiNapoli, Ontario County District Attorney James Ritts, and the New York State Police announced the guilty plea of John Morabito, former chief of the Border City Hose Company, for theft of $18,772 from the company.

“Mr. Morabito’s theft of money meant to protect his community was a violation of the public’s trust and a betrayal of his office,” DiNapoli said. “I thank District Attorney Ritts and the New York State Police for partnering with my office to hold him accountable and make the company whole.”

Ontario County District Attorney James Ritts said, “At a time when funding for our Fire Departments and Hose Companies is so important, restoring the funding, assuring accountability, and protecting the companies was our driving concern. I am pleased we were able to address these concerns. The investigation by the New York State Police and the Comptroller’s Office made accomplishing these goals possible. The District Attorney’s office appreciates everyone’s efforts.”

New York State Police Superintendent Steven G. James said, “I commend the diligent work of our State Police members, along with our partners at the State Comptroller’s Office and Ontario County District Attorney’s Office, for their hard work in putting an end to this dishonest act. Mr. Morabito knowingly defrauded, and preyed on the public’s philanthropy, all to fill his pockets and satisfy greed. We will not tolerate the conduct of those who take advantage of their position to steal money meant to benefit the community.”

Morabito served as chief of the Hose Company, which is one of two fire companies in the Border City Fire District that serves residents in the City of Geneva and the Village of Waterloo. While he was chief, from 2015 to 2021, he stole $16,000 in donations, rental hall payments, and income received by the Hose Company.

Morabito made $16,000 in cash withdrawals and also used the Hose Company’s home improvement store credit card to make $2,200 in unauthorized purchases of construction supplies, tools, bathroom light fixtures, and a table saw for his personal residence.

Morabito pleaded guilty to misapplication of property  and was sentenced to a conditional discharge and paid back full restitution of $18,772. Additionally, Morabito is prohibited from having fiduciary responsibilities within the Hose Company, if permitted to rejoin the company.

###

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigiations@osc.ny.gov, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

Compelling the disclosure of records pursuant to New York State's Freedom of Information Law with respect to complaints and allegations made against police officers "that were not substantiated"

In the Matter of New York Civil Liberties Union v. Village of Freeport, 2024 NY Slip Op 03824, the Appellate Division held that upon repealing Civil Rights Law §90-a, the New York State Legislature amended the "Public Officers Law to specifically contemplate the disclosure of 'law enforcement disciplinary records,' which it defines to include 'complaints, allegations, and charges against an employee'".

Further, opined the court, if the State Legislature "had intended to exclude from disclosure complaints and allegations that were not substantiated, it would simply have stated as much", observing "[it] did not, and instead included 'complaints, allegations, and charges' in its definition of disciplinary records, along with 'the disposition of any disciplinary proceeding,' without qualification as to the outcome of the proceeding".

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

A member of the New York City's Education Retirement System retired based on the System's erroneous representation she was eligible to do so must file a timely CPLR Article 78 seeking retirement benefits denied her

The New York City Board of Education Retirement System [Retirement System] initially placed the Plaintiff in its "Age 57 Early Retirement Program". Plaintiff retired on April 21, 2019, allegedly based upon representations by the Retirement System that she was eligible to retire and started receiving retirement benefits.

The Retirement System subsequently notified Plaintiff that it had determined that placing Plaintiff in the 57/5 program was an error, and that she should have been placed in the "25-Year Early Retirement Program". As Plaintiff was not yet eligible to retire, Retirement System gave the Plaintiff several options to address her premature retirement. Plaintiff elected to return to service for approximately 10 months until she was credited with 25 years of service and then file for retirement under the 55/25 program.

In October 2021, Plaintiff commenced an action seeking a judgment declaring that Retirement System was estopped from denying the Plaintiff's entitlement to retirement benefits "for the period from April 21, 2019, to the date that she returned to service or, in the alternative, to recover damages for breach of fiduciary duty, negligent misrepresentation, and negligence." Supreme Court granted Retirement Systems motion to dismiss Plaintiff's action as "time barred" and Plaintiff appealed Supreme Court's ruling.

Citing Walton v New York State Dept. of Correctional Servs., 8 NY3d 186, the Appellate Division sustained the Supreme Court's decision, noting "where [the] proceeding could have been brought pursuant to CPLR Article 78, the four-month statute of limitations applicable to such proceedings applies". In the words of the Appellate Division, "although the complaint sought declaratory relief or monetary damages, the gravamen of the complaint concerned [Plaintiff's] challenge to the Retirement System's determination dated August 7, 2019, that her retirement as of April 21, 2019, was premature due to her erroneous placement in the 57/5 program...."

As the damages sought by Plaintiff concerning her unpaid retirement benefits for the period from her retirement on April 21, 2019, to the date that she returned to service arose from and were incidental to the Retirement System's determination dated August 7, 2019, Plaintiff could have commenced a CPLR Article 78 proceeding to challenge the Retirement System's determination dated August 7, 2019, and "the four-month statute of limitations applicable to such proceedings applies".

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

Second Circuit Court of Appeals holds New York State's Board of Law Examiners has Eleventh Amendment sovereign immunity

No. 22-1661

T.W., Plaintiff-Appellant,

v.

NEW YORK STATE BOARD OF LAW EXAMINERS, DIANE BOSSE, JOHN J. MCALARY, BRYAN WILLIAMS, ROBERT MCMILLEN, E. LEO MILONAS, MICHAEL COLODNER, Defendants-Appellees.

On Appeal from the United States District Court for the Eastern District of New York.

ARGUED: JUNE 5, 2023 DECIDED: JULY 19, 2024

Before: LIVINGSTON, Chief Judge, and NARDINI, Circuit Judge.*

Below is the summary of  the ruling preceding the court's decision.

"T.W. sued Defendant-Appellee the New York State Board of Law Examiners alleging, inter alia, that the Board violated Title II of the Americans with Disabilities Act (the “ADA”) and Section 504 of the Rehabilitation Act by denying her requests for certain accommodations on the New York State bar examination in 2013 and 2014. 

"The Board moved to dismiss T.W.’s complaint, asserting that the United States District Court for the Eastern District of New York (Raymond J. Dearie, District Judge) lacked subject matter jurisdiction because New York’s sovereign immunity barred T.W.’s ADA and Rehabilitation Act claims under the Eleventh Amendment. The district court denied the Board’s motion to dismiss, but this Court reversed, holding that the Board was immune from suit under Section 504 of the Rehabilitation Act** and remanding for consideration of the Board’s motion to dismiss as to T.W.’s Title II claim under the ADA. On remand, the district court granted the Board’s motion to dismiss, holding that the Board is entitled to immunity as an “arm of the state,” that Title II does not abrogate the Board’s sovereign immunity for money damages as applied to T.W.’s claim, and that T.W. could not maintain her requests for declaratory and injunctive relief under Ex parte Young. 

"On appeal, T.W. argues that the Board is not an arm of the state, and even if it were an arm of the state, Title II has abrogated Eleventh Amendment immunity in the context of T.W.’s claim. In addition, T.W. argues that even if the Board enjoys sovereign immunity, she may seek her requested declaratory and injunctive relief under Ex parte Young. We disagree and therefore AFFIRM the July 21, 2022, judgment of the district court."

* Judge Rosemary S. Pooler, originally a member of this Second Circuit panel, passed away on August 10, 2023. The two remaining members of the panel, who are in agreement, determined the matter. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b); United States v. Desimone, 140 F.3d 457, 458–59 (2d Cir. 1998). 

** The Circuit Court found that the Board was not a program or activity of a department or agency that receives federal funds and was therefore immune from suit pursuant to Section 504 of the Rehabilitation Act.

Click HERE to access the text of the Second Circuit decision posted on the Internet.

New York Public Personnel Law E-books available from BookLocker, Inc.

The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State and its political subdivisions set out in an e-book. For more information and access to a free excerpt from this e-book, click here: http://booklocker.com/books/5215.html 

A Reasonable Disciplinary Penalty Under the Circumstances - an e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service of the State of New York and its political subdivisions in instances where the employee has been found guilty of misconduct or incompetence. For more information and access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/7401.html

The Layoff, Preferred List and Reinstatement Manual - an e-book reviewing the relevant New York State laws, rules and regulations, and selected court and administrative decisions. For more information and access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/5216.html

Disability Benefits for New York State and municipal public sector personnel - an e-book focusing on administering the Retirement and Social Security Law, the General Municipal Law Sections 207-a/207-c and similar laws providing disability benefits to employees of the State of New York and its political subdivisions. For more information and access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/3916.html

N.B. New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf.

 

Elements considered in determining the final average salary of a member of the New York State Teachers' Retirement System for the purposes of determining the pension portion of the member's retirement benefit

A Tier 4 member [Petitioner] of the New York Teachers' Retirement System [TRS] retired and commenced receiving a monthly retirement allowance that included a "pension" benefit. 

Petitioner subsequently received a letter from TRS advising that it was removing certain payments he had received from the School District during the last three years of his employment — i.e., a technology/wellness allowance, vacation buyback payments and raises he received outside of a negotiated agreement — from the calculation of his final average salary [FAS] for the purpose of determining his pension benefit. This change resulted in Petitioner receiving "a reduced benefit amount". Petitioner challenged TRS's determination.

Ultimately TRS issued a final determination in May 2022, which included the raise Petitioner received during the 2018-2019 and 2019-2020 school years in the calculation of Petitioner's FAS, but excluded a technology/wellness allowance and  vacation buyback payments from this calculation.

Petitioner initiated a CPLR Article 78 proceeding contending TRS's determination was arbitrary and capricious. After receiving additional documentary evidence, TRS issued a revised determination that found Petitioner's entire reported salary for 2019-2020 — i.e., when he was promoted to deputy superintendent — pensionable, but TRS adhered to its original determinations regarding the 2017-2018 and 2018-2019 school years. In addition, TRS "capped the increases" in Petitioner's salary for the three years used to calculate his FAS at 10% of his average salary for the preceding two years. 

Petitioner filed an amended petition challenging TRS's revised final determination, which was dismissed by Supreme Court. Petitioner appealed.

The Appellate Division affirmed the Supreme Court's ruling, explaining "Where, as here, "[a] challenged determination was made [by TRS] without a hearing, judicial review is limited to whether the determination is arbitrary and capricious and without a rational basis". Further, said the Appellate Division, "if the wages* earned during any year included in the period used to determine final average salary exceeds that of the average of the previous two years by more than [10%], the amount in excess of [10%] shall be excluded from the computation of final average salary".

Additionally, the Appellate Division observed that when determining a member's base salary for the purpose of computing retirement benefits, "lump sum payments for sick leave, annual leave or any other form of termination pay" are excluded, as are any form of termination pay "to prevent artificial inflation of final average salary by payments made in anticipation of retirement". 

In determining what constitutes average regular compensation within the meaning of the statute, the Appellate Division opined that courts "must look to the substance of the transaction and not to what the parties may label it".

Petitioner had given up a technology/wellness stipend during the 2017-2018 school year in exchange for the cash value of the stipend being rolled into his base salary. This was consistent with the terms of the relevant collective bargaining agreement, which deleted this benefit in exchange for increasing the salary step schedules of all unit members by the benefit amount. 

Also noted was the fact that Petitioner's vacation time was also reduced from 30 to 20 days beginning in the 2017-2018 school year, with a prior option to sell back unused vacation time omitted from his employment contract. In exchange for giving up 10 days of vacation time Petitioner's base salary was also increased.

Notwithstanding "averments by School District officials to the contrary," after considering the totality of the record, the Appellate Division concluded that TRS could rationally determine that rolling the cash value of these benefits into Petitioner's reported salary for the 2017-2018 and 2018-2019 school years constituted payments made in anticipation of retirement that should be excluded from the calculation of Petitioner's FAS. 

The Appellate Division also noted that the 10% cap is mandated by statute and Petitioner had cited no authority for the proposition that TRS has discretion to dispense with its application.

* The term "wages", said the court, refers to "regular compensation earned by and paid to a member by a public employer", citing Retirement and Social Security Law §601[l] [a]).

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