Links to selected items focusing on government operations posted on the Internet during the week ending September 27, 2024.

Click on the text highlighted in color to access the item posted on the Internet.

911 Tech Firm Prepared Raises $27M as It Pushes AI As emergency dispatch centers transition to the mobile age, massive venture capital firm Andreessen Horowitz is betting that Prepared can help lead the public safety pack. The company’s CEO talks more about his new funding round. READ MORE

A Lack of Competition Among ISPs Can Cause Ripple Effects A surprisingly large number of locations across the United States have little to no competition among Internet service providers, which can lead to expensive — and not always great — service. READ MORE

A New Tool Allows Governments to Track Crime Data in Real Time By the time federal crime rate statistics are published, they're already out of date. A new online resource provides a month-to-month view of crime rates. READ MORE

A Risky Path to the Dream of Homeownership Millions of Americans, particularly people of color buying lower-cost homes, have turned to land contracts and other alternative financing that lack the protections of traditional mortgages. Lawmakers could make these processes a lot safer. READ MORE

AI Can Help Schools Quickly Detect, Remediate Cyber Threats Artificial intelligence may help schools identify and resolve cybersecurity issues faster, as long as it’s on a unified platform or has interoperability with other applications on the school’s network. READ MORE

AWS is Helping Small and Mid-Sized Government Agencies Modernize with Cloud Discover actionable guidance and best practices on how to respond stronger and faster to serve your constituents more effectively—together with CrowdStrike, Esri, and Tyler Technologies. LEARN MORE

Biden Warns About AI Risks in Final United Nations Address The speech was the main event of Biden’s final appearance as president at the annual summit, where he also will meet privately with a number of global counterparts. READ MORE

Birmingham Pilot Blossoms into a Lifeline to Jobs, Housing Birmingham's microtransit boosts job access by 79%, delivering over 300K rides with Birmingham On-Demand. LEARN MORE

California to Host Governor’s Debate This Weekend — for 2026 On Sunday, California Democrats will hold their first major candidate debate for those vying to replace Gov. Gavin Newsom in 2026. Four of the five current candidates will face off. READ MORE

Can Real-Time State Data Ease Parents’ Child-Care Woes? How Iowa was able to navigate the red tape involved with real-time child-care search, vacancy and supply and demand dashboards to help parents quickly find available child care in the state. READ MORE

Can the CIO Be a Co-Equal at the Cabinet Table? From expanding the role of state CIOs to building federal partnerships, the head of NASCIO makes the case for technologists in shaping the future of how government works. READ MORE

Car-free Living Becomes a Reality in this Utah Community The region's new transit network connects downtown with the surrounding mountains, and residents are raving. LEARN MORE

Cat and Mouse: Keeping Up With the Evolution of AI As AI evolves, government must do so as well to effectively leverage the technology for improved service delivery, attendees said at the yearly Digital Benefits Conference. Accurate data is essential to make AI-powered systems work as designed for government. READ MORE

Celebrities Urge California Governor to Sign AI Safety Bill More than 125 Hollywood actors, directors, producers, music artists and entertainment industry leaders have added their names to a letter released Tuesday to Gov. Gavin Newsom. READ MORE

CIAM: The Key to Trusted Online Relationships for Government Services This paper explores how Customer Identity and Access Management (CIAM) solutions help state and local governments deliver secure, personalized digital services that rival the private sector. DOWNLOAD

Code for America’s Free Tax Filing Coming to More States The nonprofit is expanding its state tax filing tool, which is integrated with the IRS’ current Direct File program, to Maryland and North Carolina in 2025. The move is estimated to reach more than 700,000 residents. READ MORE

Connecticut’s New CISO Gene Meltser Aims to Reduce Risk State officials have plucked Gene Meltser from the private sector to serve as state chief information security officer. The C-suite arrival will leverage his cybersecurity experience to mitigate risk for the government and its constituents. READ MORE

CrowdStrike Congressional Hearing Seeks Lessons Learned The cybersecurity company told members of Congress that the faulty content update that crashed machines worldwide was a “perfect storm” of things going wrong, and that it’s revising how it pushes out updates. READ MORE

Digital States 2024: Innovation, Inclusion and Whole-of-State Services In the two years since the last Digital States Survey from the Center for Digital Government, leading states have put resident experience at the center of their work while also embracing cutting-edge technologies. READ MORE

Eproval named official permitting software sponsor for the Municipal Special Events Summit As an official sponsor, Eproval will showcase its cutting-edge platform that streamlines special event permitting for public agencies. READ MORE

eSTART Hits Milestone as It Pushes for Digital Titles The group, which includes executives from the automotive industry, wants to replace paper-based processes at DMVs with digital tools. Its new advisory board promises to up that push in the coming months. READ MORE

FCC to Open Funding for Cybersecurity in K-12, Libraries The three-year $200 million Schools and Libraries Cybersecurity Pilot Program opens its application window this fall. The near-term goal is to secure schools most in need, but long-term it will help nationwide. READ MORE

Five Steps to Take to Adopt AI The Roadmap for Government AI Adoption outlines five actionable steps you can take to responsibly benefit from AI in your government organization. Download the Roadmap

Florida County Prepares for Hurricane With New Tool Pasco County, near Tampa Bay, has deployed CentralSquare software to help public works better fix damage from natural disasters and cyber attacks. It’s the latest example of using gov tech for disaster management. READ MORE

Four Ways to Get Ready for AI in Transportation Transportation leaders need practical AI guidance now. This paper details steps in data, workforce, cybersecurity, and collaboration for agencies to achieve an AI-driven future. DOWNLOAD

How 7 Cities Funded Their New Microtransit Services See the federal, state, and local grants that turn public transit dreams into reality. LEARN MORE

How Education Has Become the Election Issue to Avoid For many politicians at both a state and national level, education has become a topic to avoid during this year’s election cycle. But with its significance to state and local communities, some local officials want to bring the issue forward. READ MORE

How Mayors Use Microtransit to Transform Their Communities Better transit drives economic development and spurs opportunities. It's easier to launch than you think. LEARN MORE

Improving the Constituent Experience to Rebuild Public Trust When constituents face barriers to accessing government services, the result is not just momentary frustration. It's a deeper sense of neglect by the institutions meant to serve them. By improving the constituent experience, governments aren't just implementing faster and more efficient services. They're rebuilding public trust. DOWNLOAD

In the Tightest States, New Voting Laws Could Tip November’s Outcome  Pandemic protections offer more ballot options, but election lies are driving new restrictions. READ MORE

In the Weeds: Why Massachusetts Has the Lowest Rate of Traffic Deaths Massachusetts has the lowest rate of traffic deaths per vehicle mile traveled, according to recently published federal data. State transportation leaders credit safety strategies — and congestion. READ MORE

Lawmaker Calls on State Leaders to Reform New York’s Beleaguered Guardianship System A new bill asks Gov. Kathy Hochul and state legislators to overhaul New York’s broken guardianship system. It cites a ProPublica investigation that found the elderly and infirm living in dire conditions while under court-mandated oversight. READ MORE

Make Data Your Generative AI Differentiator Learn how to build the right data strategy that gives you a strategic advantage with generative artificial intelligence (AI). DOWNLOAD NOW

Making Public Benefits More Convenient and Still Secure Re-examining password requirements and online workflows, as well as minimizing what data they ask from residents, can help smooth online processes while also maintaining security. READ MORE

Marin County, Calif., Gets $11M for Broadband “Last mile” grant money from the American Rescue Plan Act and California’s general fund will help construct a broadband network for 700 homes and businesses at the county’s northern border along Highway 1. READ MORE

Maryland to Offer Free AI Training to State Employees The Maryland Department of Information Technology is partnering with InnovateUS to offer free artificial intelligence training to state employees, joining a growing list of states to do so. READ MORE

Modernizing the Public Sector Workforce Wireless networks are transforming the work of government employees. This trend is sure to pick up speed with the expansion of 5G wireless networks. Read this issue brief to get more information on how you can embrace a more wireless future. DOWNLOAD

Municipal Special Events Summit Names Eproval as Official Permitting Software Sponsor The Municipal Special Events Summit is the premier gathering of government and special event planners, taking place February 16-19 in Savannah, Georgia. READ MORE

NASCIO Executive Director Doug Robinson on Status of State IT From expanding the role of state CIOs to building federal partnerships, Robinson shares his insights on how NASCIO has shaped the future of public-sector IT over the past two decades. READ MORE

Need Funding for a Microtransit Service? Policy experts answer 5 microtransit funding FAQs, including what grants are currently up for grabs. LEARN MORE

Need Greater Access to Housing and Jobs? Jersey City Gives It the One-two-punch. With more than 2 million rides under its belt, Via Jersey City is setting a new microtransit standard. LEARN MORE

NYC Adds, Simplifies Data Sets in Annual Open Data Report New York City’s 2024 Open Data Report aims to build on the city’s open data work by offering the public consolidated data sets as well as providing new insights on algorithmic tools and more. READ MORE

One City’s Determination to Get Ahead of Homelessness With strong mayoral leadership, Atlanta is not only leveraging creative financing to provide housing but also getting tough on landlords of blighted properties. It’s a recognition that homelessness is a moral issue rooted in poor public policy. READ MORE

One Community’s Unlikely Partnership to Monitor Air Pollution A petroleum and chemical tank farm operator and a Louisiana environmental group are working together to install air monitors measuring emissions.  READ MORE

OpenAI Pitched White House on Massive Data Center Buildout OpenAI says there is a need for massive data centers that could each use as much power as entire cities, framing the unprecedented expansion as necessary to develop more advanced AI and compete with China. READ MORE

Pennsylvania House Candidates Use ChatGPT on Voter Guides At least three state candidates running for Lancaster County districts in the U.S. House of Representatives turned to AI this year to help describe their policy views to voters before Election Day. READ MORE

Pennsylvania’s State Pension Debt Clock Goes Dark The state Capitol’s pension debt clock acted as a reminder for the last eight years of how much taxpayers were on the hook to pay. But now the state’s retirement system is fully funded and the digital clock has gone dark. READ MORE

Poll: Americans Expect All Elected Officials to Act to Reduce Homelessness A new public opinion survey commissioned by the National Alliance to End Homelessness shows most Americans believe investments in housing and social service can reduce homelessness. A smaller fraction supports law enforcement as a primary solution. READ MORE

Preparing for a Future Powered by Generative AI In this Harvard Business Review, leaders across industries share how they’re harnessing this revolutionary technology. DOWNLOAD REPORT

Rural New England Counts on Foliage Tourism, but the Future of Fall Colors Is Uncertain Ultimately, climate change may bring relief from overtourism at a high price: the loss of vibrant autumn leaves. READ MORE

San Francisco CIO Talks Use of AI in Government Michael Makstman first stepped into the city’s CIO job in July, and he recently discussed his experience so far with running a $140 million department that has more than 260 employees. READ MORE

San Francisco Shows Signs of Reduced Vehicle Use, Congestion A new report by StreetLight Data shows that as vehicle use and traffic congestion continue to be a rising concern for the vast majority of U.S. metro regions, San Francisco alone is making progress. READ MORE

San Francisco’s New CIO Discusses Cybersecurity and AI Michael Makstman has been the city’s new chief information officer since July and hopes to establish citywide standards and procedures for IT while also balancing a range of technology from AI to floppy disks. READ MORE

Sea-Tac Not Paying 100-Bitcoin Ransom in August Cyber Attack Officials at the Seattle-Tacoma International Airport have said they will not pay the ransom, which is worth about $6 million. How much information was illegally accessed, and what kind, is still unclear. READ MORE

See how Slack Enhances Emergency Response and Operations Communicating at the speed of mission to improve trust, transparency, and accountability in emergency management. REGISTER NOW

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. READ MORE

Silicon Valley Takes a Bite Out of Congestion With Its Expanded Microtransit Network The city's 'Silicon Valley Hopper' service uses the latest transit tech to increase adoption. LEARN MORE

Sioux Falls’ Mayor: “This could not be going better.” The city's new tech-enabled transit service is winning over residents and city leaders alike. LEARN MORE

SIX Months After Key Bridge Collapse and Baltimore Is Still Recovering The 30,000 vehicles that took the Francis Scott Key Bridge every day have been rerouted since the March disaster, resulting in at least $108 million worth of time lost. And the six lives lost are priceless to the still-mourning families. READ MORE

Smarter Curbs Are Just the Start for Smarter Cities At the midpoint of smart curb projects, city transportation leaders across the country are reflecting on the broader impacts this work can have — and how they might unlock progress in the future. READ MORE

Some Chicago Residents Worry About Discontinuation of ShotSpotter Last week, Mayor Brandon Johnson vetoed the Aldermen’s unanimous vote to keep the gunshot detection technology, saying the system doesn’t work well enough to justify its costs. Some residents are worried that without it, police response time will lag. READ MORE

South Dakota’s New CIO Aims to Improve Operations With AI, Data South Dakota CIO Madhu Gottumukkala has a vision of innovation for state IT that involves a strong team implementing improved data governance, cybersecurity and emerging technology for constituents. READ MORE

Springfield Technical CC Dedicates New Cybersecurity Center Springfield Technical Community College opened a new security operations center this week in the city's Union Station, staffed by student interns and equipped to help governments protect themselves against cyber threats. READ MORE

Streamlining Services With Low-Code Case Management Systems State and local government agencies’ efforts to streamline service delivery for residents risk being held back by outdated case management processes. Low-code technology may be the answer. READ MORE

TEN Mayors Transforming Their Cities with Tech-enabled Public Transit These mayors saw transportation challenges and took action to implement new microtransit services from scratch. LEARN MORE

Texas CISO Nancy Rainosek Retiring, Deputy Is Her Successor The state chief information security officer of nearly eight years was named one of Government Technology’s Top 25 Doers, Dreamers and Drivers, in part for helping create a collaborative, risk-aware culture. READ MORE

Texas’ Low Voter Turnout Could Be a Policy Issue In the 2022 general election, just 42 percent of eligible Texas voters cast a ballot, making it one of the worst states in the nation for voter participation. READ MORE

The Campaign and Federalism: Big Talk and Empty Promises It’s good politics for presidential candidates to talk about solving problems that presidents can’t do much about. READ MORE

The Coming Policy Backwash from the COVID Revenue Wave As a recent study documents, federal fiscal stimulus created a budget windfall for states. Most cut taxes, and some now must scramble to make up for shortfalls. Congress is likely to impose tighter restrictions on future countercyclical aid, so it’s a time for all levels of government to get their acts together. READ MORE

The Cost of Water Could Help Determine Who Wins the Election in Michigan One key issue for working-class and low-income Black voters in Detroit is the cost of water. As of 2023, 27 percent of Detroit households are at risk of having their water shut off due to unpaid water bills, with $700 being the average amount owed. READ MORE

The Three Building Blocks of AI Applications Generative AI can help your organization do more with less. Increase productivity and improve service quality by building and modernizing AI applications. Learn the 3 Building Blocks of Intelligent Apps »

Tips for Overcoming Public-Sector IT Modernization Challenges Public-sector IT departments embarking on modernization efforts can follow these tips to overcome common challenges like resource restraints and staffing issues. READ MORE

West Sacramento Mayor Says Microtransit Brings Tax Revenue to the City Mayor Guerrero presented data from the transit program alongside Via at the 2024 U.S. Conference of Mayors summit. LEARN MORE

What celebrity voices can Meta’s AI chatbot now use? READ MORE

What’s New in Digital Equity: House Passes 6G Legislation Plus, Wisconsin has been awarded additional funding for digital equity causes, a new NTIA document offers guidance for native entities applying for Digital Equity Act funding, and more. READ MORE

When States and Localities Disagree On Worker Protections, What's the Way Forward? Good jobs are a bedrock of resilient communities. State and local governments can spar over who sets standards, but there are ways to meet both state standards and local needs. READ MORE

Where Next for Real ID, Facial Recognition and Airport Security? There have been some new updates around airport security and identification. From cyber expert Dan Lohrmann, here’s what you need to know. READ MORE

Where Next for Real ID, Facial Recognition and Airport Security? There have been some new updates around airport security and identification. Here’s what you need to know. READ MORE

Why Pittsburgh’s Poised to Lead the AI Revolution The former steel capital has already made the transition to advanced manufacturing. Its combination of tech talent, universities and power sources make it well-equipped to be a leader in AI. READ MORE

Will a New BLM Plan Turn the Silver State into the Solar State? The Bureau of Land Management’s controversial plan updates preferred solar zones for the first time in 12 years and identifies nearly 12 million acres for available solar development in Nevada, more than any of the 11 other states included in the plan. READ MORE

Will Declining Interest Rates Loosen California’s Housing Market? Falling borrowing costs could trigger a flood of additional buyers and send home prices higher but, for now, the number of homes for sale is increasing modestly, rates are falling and home price growth is slowing. READ MORE

Although accidents suffered outside work hours and in public areas away from the workplace are typically "not compensable" within the meaning of the Workers' Compensation Law, there are a number of exceptions to this general rule

Claimant [Employee] for Workers' Compensation Benefits sustained serious injuries when he was struck by two motorized bicycles while crossing a street enroute to a bus stop on his way home after having attended his Employer's invitation-only event for members of his Employer's team. 

The Employer and its workers' compensation carrier [Employer] controverted Employee's application for Workers' Compensation benefits contending, among other things, that Employee's injuries did not arise out of and in the course of his employment. In response, Employee contended that his injuries were compensable under either the special errand or dual-purpose doctrines. 

Following administrative hearings, a Workers' Compensation Law Judge [ALJ] agreed with Employer and disallowed the Employee claim. Employee applied for, and was granted, an administrative review of the ALJ's decision. The Workers' Compensation Board [WCB] vacated the ALJ's ruling, finding that "the employer exercised a degree of control sufficient to find a causal nexus at the time of the accident." In so doing, the WCB noted that "[Employee] was acting in furtherance of the employer's business" at the time of the accident and that the change in environment and corresponding search for the appropriate bus stop "caused a greater risk of injury during a trip that was necessary to carry out a function of [Employee's] employment." Employer appealed the WCB's decision.

The Appellate Division said "In order for an injury to be compensable under the Workers' Compensation Law, it must arise both out of and in the course of employment". Although accidents that occur outside of work hours and in public areas away from the workplace are typically "not compensable", there are a number of exceptions to this rule exist, including, as relevant Claimant situation, "where there is a causal nexus between the accident and the employment". The court noted that "The test for determining whether specific activities are within the scope of employment or purely personal is whether the activities are both reasonable and sufficiently work related under the circumstances".

Noting that relevant considerations include, among other things, "the nature of the claimant's off-premises travel, whether the employer derives a benefit therefrom, and "[t]he degree of control exercised by the employer at the time of the accident".

With respect to event giving rise to Employee's injury, Employee testified that attending the event, which had been placed on "everyone's calendar" by one of the Employer's managers, was not only encouraged but was "absolutely, [100%]" part of his job requirements as participating in such "sessions and events ... were an integral part" of his duties as an account executive, and building positive working relationships with the Employer's business partners was "the only way" he and his coworkers could "sell anything." 

The Appellate Division also noted the Employee testified his Employer track[ed] every dollar of revenue and the amount of time and effort he expended in building these relationships impacted the metrics utilized to evaluate his performance.

Although the Employer's representative testified that employees were not required to participate in events such as the one underlying the instant action, he acknowledged that attendance at business partner events was "encouraged", explaining that the purpose of such events was to develop and maintain business relationships between the Employer's sales team and its business partners, which, in turn, allowed the Employer and its partners to better understand the different strategies that they should pursue in order to make sales.

The Appellate Division said that considering "the foregoing", it was satisfied that the WCB's finding of a causal nexus between the accident and Employee's employment is supported by substantial evidence. Despite the informal nature of the event, the Appellate Division opined that "it is readily apparent that the employer derived a benefit from [Employee's] participation in the event ... developing and maintaining business relationships that, in turn, ultimately generated increased sales and revenues for the [Employer].

Further, said the court, the record supports the WCB's finding that Employee's attendance at this work-related event "altered the usual geographical or temporal scheme of travel, thereby altering the risks to which [he was] usually exposed".

Accordingly, the Appellate Division affirmed the WCB's decision, noting that Employer's remaining arguments, to the extent not specifically addressed in its opinion, "have been examined and found to be lacking in merit".

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

CNN reports that New York City Mayor Eric Adams has been indicted on certain charges by the federal government

On September 26, 2024, CNN reported that The New York Times was first to announce the news of the federal government's indictment of New York City's mayor, Eric Adams, observing that the indictment follows a "months long federal investigation into [allegations of] campaign fundraising violations and foreign influence". CNN also noted that the alleged charges Mayor Adams is facing are not publicly known at this time. Click Read More for additional information.

A CPLR Article 78 action contended that certain new regulations promulgated by the New York City Civilian Complaint Review Board were invalid dismissed

A CPLR Article 78 action was filed by the "Police Benevolent Association of the City of New York, et al", [Plaintiffs'], challenging the New York City Civilian Complaint Review Board's [CCRB] expansion the definition of "Abuse of Authority" in its regulations to include "improper use of body worn cameras" [BWC]. On September 24, 2024 the Appellate Division sustained a Supreme Court decision dismissing the complaint. 

CCRB had promulgated this amendment to its regulations after a "detailed study" of the use of BWCs found "that officers often turned on their BWCs too late, prematurely turned them off, or failed to use them at all". 

Sustaining the change initiated by CCRB, the Appellate Division opined the amendment "is not irrational, unreasonable or inconsistent with the governing statute and [CCRB's action] should be given deference."

Citing Matter of Pell v Board of Educ. 0f Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d at page 231 and other decisions, the Appellate Division held that "definition's expansion is rational and supported by the detailed study and that decisions in prior cases concerning other expansions of the "Abuse of Authority" definition "did not compel a different result".

The court also noted that CCRB's addition of a definition of "severe act of bias" was not done in excess of CCRB's jurisdiction nor was it promulgated in an arbitrary and capricious manner and the challenged regulation is not "inconsistent with the statutory text" as the City Counsel expressly delegated to CCRB the authority to define the phrase.

The Appellate Division further opined that "The new regulation delegating CCRB's authority to initiate complaints was also an appropriate exercise of jurisdiction", pointing out that the Petitioners did not challenge the breadth of the delegation but argue that CCRB is not authorized to delegate this authority at all. 

The court ruled that "A plain reading of the Charter shows that CCRB is empowered to initiate complaints on its own" and to "appoint such employees as are necessary to exercise its powers, including but not limited to the power to initiate complaints ... and fulfill its duties", citing §440[c][1], [5] of the New York City.

The court also held that the amendment renaming two disposition categories, [1]  from "unsubstantiated" to "unable to determine," and [2] from "exonerated" to "within NYPD guidelines" was not arbitrary and capricious", noting that there was evidence in the record to support CCRB's position that "the changes would promote understanding by the public, both from feedback it received and from public hearing testimony".

The Appellate Division also rejected Petitioners' arguments to the contrary, explaining they do not prove a lack of sound basis in reason or that "the changes were akin without regard to the facts and [these] changes may not be disturbed simply because petitioners question the 'wisdom' of the agency's approach as to the terminology used".

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

An administrative denial of a claim for Social Security Disability Insurance benefits must be supported by substantial evidence to survive judicial review

Plaintiff-Appellant [Plaintiff] filed a claim for Social Security Disability Insurance benefits on her medical condition of major depressive disorder. After a hearing, the administrative law judge [ALJ] denied Plaintiff’s claim for benefits because the ALJ  determined that Plaintiff was not disabled within the meaning of the Social Security Act, 42 U.S.C. §§401–434. 

Plaintiff having exhausted the administrative appeals process, challenged the final administrative decision of the Social Security Administration [SSA] in the United States District Court for the Southern District of New York. The district court affirmed SSA's decision. 

In her appeal Plaintiff contended that SSA’s determination that she was not disabled during the period covered by her claim was not based on substantial evidence. The United States Court of Appeals, Second Circuit, agreed and vacated the district court’s judgment. It then returned the matter to the district court "with instructions to remand [the matter] to the agency for further proceedings".

Explaining the under 42 U.S.C. §405(g), "federal courts are permitted to engage in only “limited review of final SSA disability benefit decisions”, on an appeal from the denial of disability benefits, the Second Circuit "will focus on the administrative ruling rather than the district court’s opinion ... because the same standard of review applies to the agency’s decision, both in the district court and before a court of appeals”. Citing Estrella v. Berryhill, 925 F.3d 90, the Circuit Court said will then conduct a "plenary review of the administrative record to determine if there is substantial evidence, considering the record as a whole, to support the Commissioner’s decision and if the correct legal standards have been applied.”

In determining whether there is evidentiary sufficiency under this standard, a court is “required to examine ... contradictory evidence and evidence from which conflicting inferences can be drawn.” Noting that in the event the evidence "is susceptible to more than one rational interpretation, the Commissioner’s conclusion must be upheld.” However, this presupposes that the ALJ has not disregarded or misconstrued relevant evidence and has not applied incorrect legal standards.

Here, said the court Plaintiff argued that the ALJ "committed a categorical error" by denying her application for benefits without a medical opinion to support that decision in that the record. The Circuit Court that noted that the only substantive medical opinions was that of one physician, who opined that Plaintiff met the criteria of Listed Impairment 12.04 and did not have the capacity to perform even low stress work on a consistent basis.* 

As the record contained on one medical opinion which had concluding that Plaintiff was not disabled, Plaintiff contended that the ALJ’s decision was not supported by substantial evidence. The Circuit Court agreed, stating that "In the absence of a medical opinion contradicting sole physician's  opinion "substantive medical opinion" that Plaintiff meets the listed criteria, we must carefully scrutinize the rest of the record evidence to determine whether it supports the ALJ’s decision to partially discount [the physician's] opinion and conclude that Plaintiff did not meet those criteria. 

Noting that the Second Circuit has held that “the absence of an express rationale does not prevent [it] from upholding the ALJ’s determination regarding [an] appellant’s claimed listed impairment[] [where] portions of the ALJ’s decision and the evidence before [her] indicate that [her] conclusion was supported by substantial evidence,” in this instance the other portions of the ALJ’s decision and the record evidence here "do not provide substantial support for the ALJ’s conclusion that Plaintiff could adapt to changes in her environment or demands not already part of her daily life". 

The Circuit Court's decision also included the observation that "the ALJ herself found that Plaintiff had not “engage[d] in substantial gainful activity” after losing her part-time retail job ... implicitly recognizing that her venture into self-employment was insubstantial." To the extent that the ALJ’s cited evidence might suggest that Plaintiff was not disabled during some of 2018, the Circuit Court said this "certainly does not support a finding that [Plaintiff] was not seriously impaired well within her coverage period.

Holding that the ALJ’s determination that Plaintiff did not meet the 12.04 listing criteria is not supported by substantial evidence, the court concluded that the ALJ erred in finding that Plaintiff failed to establish that she was disabled under the Social Security Act and entitled to benefits at step three of the sequential analysis.

Circuit Court, stating it was "Reluctant, however, to determine that Plaintiff was in fact disabled, given that the absence of additional medical evidence stems from her failure to appear for a consultative examination" due to miscommunication, concluded that the better course is to remand the case to the agency for further proceedings, including a fuller consideration of the existing evidence and the results of a consultative examination.

Accordingly, the Circuit Court vacated the judgment of the district court and the case to the district court "with instructions to remand the case to the Commissioner for further proceedings not inconsistent with this opinion".

* In addition, two state agency psychologists also examined the record at the initial and reconsideration levels of the administrative process. Both opined that there was insufficient evidence to adjudicate Plaintiff’s claim.

Click HERE to access the Second Circuit Court of Appeals' decision posted on the Internet.

Challenging a disciplinary arbitration award pursuant to Article 75 of New York State's Civil Practice Law and Rules

An employee of a New York State agency [Appellant] commenced a CPLR Article 75 proceeding seeking to vacate or modify an arbitration award denying her grievance challenging charges of misconduct and insubordination that had been filed against her.

An Arbitrator had found Appellant guilty of the disciplinary charges and that imposing the penalty of termination from her position was appropriate. 

Supreme Court denied Appellant's challenge to the arbitration award and penalty imposed and Appellant appealed the Supreme Court's decision.

The Appellate Division, noting that "Judicial review of arbitration awards is extremely limited,* explained that "Where, as here, an arbitration award was rendered after a consensual arbitration process pursuant to the terms of a collective bargaining agreement, the award may not be vacated on the ground that the arbitrator exceeded his or her power unless it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation of the arbitrator's power".

In this instance, said the court, Appellant failed to demonstrate that the arbitration award:

[1] Violated a strong public policy;

[2] Was irrational; or

[3] Clearly exceeded a specifically enumerated limitation of the arbitrator's power.

The court also noted that, contrary to Appellant's contention, the Arbitrator properly considered the Appellant's "entire record of employment in determining a penalty", and that the penalty of termination was not so disproportionate to the offenses charged as to be shocking to one's sense of fairness**.

Further, said the Appellate Division, Appellant "waived her contention that the Arbitrator was not impartial by failing to raise this contention upon becoming aware of the basis for the alleged bias or partiality" and, citing  Matter of Piller v Schwimmer, 135 AD3d 766 and Matter of Atlantic Purch., Inc. v Airport Props. II, LLC, 77 AD3d 824, "continued to participate in the [arbitration] proceeding."

* See Matter of Barella v State of New York Off. of Mental Health, 175 AD3d 495, citing Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471.

** See Pell v Board of Education, 34 NY2d 222.

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

A Reasonable Disciplinary Penalty Under the Circumstances -- A NYPPL 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 disciplinary charges. For more information and access to a free excerpt of the material presented in this e-book, click on the URL set out below:   http://booklocker.com/books/7401.html