Links to selected items focusing on government operations posted on the Internet during the week ending October 25, 2024

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

 5 Ways Secure Cloud Infrastructure Fuels Innovation Discover how organizations accelerate time-to-market, focus on user outcomes, increase agility, manage risks, and optimize resources. DOWNLOAD

A County’s Comprehensive Approach to Training Latinos in Tech Latinos make up ever increasing shares of student bodies and the workforce but lag behind whites in science and technical education. One North Carolina county has a promising approach. READ MORE 

A Government Leader’s Guide to Meeting Website Accessibility and Compliance Requirements Ensure your government website meets ADA standards to avoid non-compliance fines and better serve residents; learn more in our white paper on ADA and Section 508 requirements. Download Guide

Accelerating the Public Sector's Zero Trust Journey Explore a comprehensive roadmap for building a Zero Trust architecture, offering key principles, real-world use cases, and practical steps for implementation to enhance security and business agility. DOWNLOAD

AI ‘Revives’ Victims in Kansas City, Mo., Anti-Fentanyl Campaign An advertisement being shown in a movie theater and headed to social media uses artificial intelligence to depict three people under the age of 25 who died from fentanyl overdoses. It was created by the city and partners.  READ MORE

AI Cameras Spot Wildfire in Rural San Luis Obispo County The ALERTCalfornia camera system notified first responders of the fire on La Panza Ranch south of Highway 58, and state firefighters extinguished it. Mapping estimated its size at 16 acres. READ MORE

Albuquerque, N.M., AI Working Group to Guide, Analyze Use The Albuquerque City Council has approved a resolution directing administration to create an artificial intelligence working group to develop an official city policy shaping the technology’s use. Residents will be among its members. READ MORE

Amid Expansion Elsewhere, Oakland’s Ranked Choice Voting Struggles The California city was an early adopter of the election format but after clerical errors in the general election two years ago, local residents are ready to ditch the method despite its growing popularity nationwide. READ MORE

An Opportunity to Address Americans’ Retirement Savings Crisis Millions are falling behind on their retirement goals. There are proven policy solutions at the state level, and federal policymakers could build on those to help all workers save what they will need and reduce the burden on taxpayers. READ MORE

As Floods Become Bigger and More Common, Risks from Insurance Gaps Also Grow Few homeowners are protected against flood damage. What can be done to reduce the burden of recovery on them and their communities? READ MORE

Benefits of Urban Trees Research has linked the presence of urban trees to 8 key benefits. How many did you already guess? VIEW THE INFOGRAPHIC

BROADBAND AND NETWORK In Case of Disaster, Communication Is King in Maryland States are navigating an ever-growing number of emergencies, including unprecedented weather events, infrastructure failures and cybersecurity incidents. Response plans must stay agile. READ MORE

Building Healthier Communities Through End-to-End Data Analytics Addressing social determinants of health and well-being requires cross-sector coordination and inclusive data solutions. LEARN MORE

Building Trust Through Data for Dallas County Public Health After guiding the Texas county through the COVID-19 pandemic, Dr. Philip Huang, its health director, pushed for collaboration and long-term strategies to prepare for future crises. Data modernization proved to be crucial. READ MORE

Can 2 Pizzas Help Mississippi Make Up Ground With AI? CIO Craig Orgeron has a plan to help the state spark more innovation with AI — one that includes a “two-pizza team” and an executive order. He talked at NASCIO about what’s already happened and what he hopes will come with AI. READ MORE

Carlisle, Pa., Schools Apply for FCC's Cybersecurity Pilot Carlisle Area School District has applied for funding from the Federal Communications Commission's Strategic Cybersecurity Pilot Program, which could yield $200,000 for cybersecurity defense over the next three years. READ MORE

Central Wash. Confronts Challenges as Tech Industry Grows Sila Nanotechnology is renovating a factory in Moses Lake, Wash., to make silicon anodes for lithium-ion batteries. Officials must train the skilled workforce the renewable energy industry needs, and they must secure energy sources. READ MORE

Chicago Police Stop More Black Drivers, but Cameras Are Unbiased A study has found that Black drivers in Chicago receive approximately 54 percent of automated camera citations, but they make up 70 percent of police stops. READ MORE

Defending Democracy and Democracies Robert A. Michaels, author of “Civics and Science:  Contemporary Issues for Civil Democracy”, presents an objective, non-partisan analysis that suggests voters would benefit from coalescing around a common interest in preserving, protecting, and defending American and other democracies. Click HERE for more.

Denver’s New Data Center to Use as Much Water as 16,000 People As city leaders try to reduce carbon emissions and conserve water amid a 20-year drought, a proposed tax break for a new, water-intensive data center is drawing scrutiny.  READ MORE

Does L.A. Have Enough Time, Money to Host a ‘Car Free’ Olympics? The Los Angeles Metropolitan Transportation Authority has a $3.3 billion list of projects to achieve ahead of the 2028 Games that is only 5.2 percent funded so far. READ MORE

Election officials are fighting a tsunami of voting conspiracy theories With less than two weeks before Election Day, a resurgence in conspiracy theories and misinformation about voting is forcing state and local election officials to spend their time debunking rumors and explaining how elections are run at the same time they’re overseeing early voting and preparing for Nov. 5. READ MORE.

Explore the Five Pillars that Support Upward Mobility Discover how housing, education, good jobs, health, and governance create the foundation for economic success, dignity and belonging, and power and autonomy for all. LEARN MORE

Flock Safety Buys a Drone Company, Prepares Product Launch The public safety tech firm, which sells license plate readers and other tools, has bought Aerodome, which specializes in making drones useful for law enforcement. Flock Safety has big drone plans for the upcoming year. READ MORE

Florida County Elections Websites Back Online After Outages After intermittent problems, elections websites in Florida counties appear to once again be operating as expected. Issues popped up in Broward County and in Palm Beach County too, where an official noted they had nothing to do with systems connected to actual voting and tabulation. READ MORE

Given the Child-Care Crisis, More Mayors Knit Together Early Childhood Services Child care involves a mix of public, private and nonprofit providers. Mayors are trying to make systems easier for parents to navigate and afford. READ MORE

Guide to State and Local Fiscal Recovery Funds (SLFRF) Reporting Requirements Whether you're a grant manager in state, local, territorial, or Tribal government, this resource will help you understand SLFRF reporting requirements and deadlines to maintain compliance. DOWNLOAD

Help Communities Become Hubs of Economic Opportunity Opportunity-rich and inclusive communities are central to supporting families’ stability, access to social and economic opportunities, and children's chances to succeed. LEARN HOW

How a Small Government Team Efficiently Manages Grants for Big Impact Discover how Cache County, Utah, streamlined its grants management process using a specialized platform. With just one administrator overseeing $24M in federal funding, they centralized oversight, reduced compliance risks, and funded over 70 community projects. DOWNLOAD

How Emergency Agencies Can Manage a Storm of Misinformation Fear and confusion in the aftermath of disasters create fertile ground for misinformation. Social media and AI can amplify it, but there are ways to weather the storm. READ MORE

How Government IT Prepares to Withstand Natural Disasters Puerto Rico faces earthquakes, hurricanes and tsunamis. North Carolina was hard-hit by Hurricane Helene. Through it all, government needs to keep critical digital services running. Here’s how they do it. READ MORE

How Puerto Rico Is Revamping Its ID Experience Digitally The territory’s digital ID initiative, IDEAL, lets government agencies do a better job of sharing information they already have on residents, after securing their permission. It’s aimed at simplifying processes and making them quicker. READ MORE

How to Bring Modern Solutions to Public Services Discover how the State of Utah and California's DHCS have successfully transformed service delivery using these modern solutions. DOWNLOAD

Indiana Offers Free Website Hosting for Local Governments In a move to enhance cybersecurity and digital services statewide, the Indiana Office of Technology is offering no-cost websites to all local governments, using its purchasing power with Tyler Technologies. READ MORE

Is Flooding Protection Infrastructure Worth It? When Hurricane Francine hit Louisiana last month, much of Terrebonne Parish lost power and some roads and houses flooded, but most flood-protection measures held strong. READ MORE

Key Decision Near for Proposed Eastern Wash. $5B Data Center The Port of Walla Walla Commission is expected to decide later this month whether to sell 500 acres of land to Advance Phase for $32 million. Should the company go ahead with its $4.8 billion plan to build 16 data centers, it would rival similar ones developed in Oregon. READ MORE

Lawsuit Says AI Car-Tracking Cameras Are Unconstitutional The San Francisco Police Department's high-tech means of catching criminals is facing a challenge in a federal court after a nonprofit filed suit against the maker of Flock Safety license plate reading cameras. READ MORE

Legislative Efforts Against ‘Forever Chemicals’ Grow Across Nation At least 11 states have enacted laws to restrict the use of PFAs in apparel, cleaning products, cookware, cosmetics and menstrual products. Since 2007, 30 states have approved 155 PFA policies. READ MORE

Louisiana Plan Would Tax Everyone but Hurt Poorest Most The proposed plan would lower the top individual and corporate tax rates to establish a flat tax rate, raise the standard dedication for individuals and eliminate the corporate franchise tax. READ MORE

Maine to Receive $65M for ‘Smart Grid’ Technology The funds will come from $2 billion the U.S. Department of Energy has allotted for 32 projects in 42 states and D.C., to improve the resilience of electricity grids. READ MORE

Mayor Cherelle Parker’s Search for a United Philadelphia Cherelle Parker is the 100th mayor of Philadelphia and the first woman to hold the job. She has forged ahead on her first-year agenda, but some constituencies feel left out. READ MORE

Modernized 911 Kept N.C. Connected During Hurricane Helene Next-generation 911 with the resilience of a modern, digital, Internet protocol-based network was essential to North Carolina’s storm response. It enabled officials to answer nearly 90,000 emergency calls in three days. READ MORE

Municipal Utilities and the Persistent Push to Privatize Given tax-exempt financing and other advantages, continued municipal ownership would seem the way to go. But other pressing public needs can make cashing out these valuable assets seem attractive. A new wave of privatization efforts will give localities a lot to think about. READ MORE

New Grant Aims to Boost Alternative Paths Into Cybersecurity The Massachusetts-based program supports upskilling candidates to fill the state's workforce expertise needs, doing so via non-academic degree training programs that offer hands-on experience. READ MORE

North Carolina Proposes $3.9B for Hurricane Relief  The total damage in Western North Carolina is estimated at $53 billion; Gov. Roy Cooper has proposed a small fraction from state funds for costs that won’t be covered by the federal government or private insurance. READ MORE

One Senator Versus 300 Experts on Connecticut’s Election Security State Sen. Rob Sampson’s concerns about the state’s election security have risen again after a noncitizen was allowed to register to vote in Bridgeport. But election officials across the state assure election integrity. READ MORE

OpenGov Journeys Into the Pipes in Latest Tech Deal The company, best known for its budgeting, planning and procurement tools, has teamed with pipeline inspection firm ITpipes. The deal is a result of an OpenGov gov tech acquisition in 2022. READ MORE

Payment Delinquencies Roadmap: Overcoming Roadblocks to Timely Bill Payments Besides interrupting cash flow, staff time and organizational resources are wasted by manually printing and mailing late payment notices. Not to mention, continuous delinquencies have long-lasting impacts, like service shutoffs. DOWNLOAD

Playing True or False With Michigan’s TV Election Ad Claims Michigan voters are in the crosshairs of hundreds of millions of dollars in political advertising ahead of the November election. But deciphering what claims are true isn’t always easy. READ MORE

Portland’s Wide-Open Municipal Election There are more ways to vote for mayor of Portland this November than there are people in the state of Oregon. Nearly 100 people are running for City Council. READ MORE

Preparing for an AI World: The Future of Data in State & Local Government AI and generative AI are reshaping government operations, but data readiness remains a critical hurdle. This whitepaper explores how state and local governments can prepare their data for AI and leverage these technologies for better governance, transparency, and efficiency. Learn from real-world case studies and expert insights on building a sustainable, AI-powered future. DOWNLOAD

Public Safety Data Platform ForceMetrics Raises $22M The company gets real-time data to officers so they can have a fuller understanding of emergency calls and the people involved. ForceMetrics last year became part of an Amazon gov tech innovation push. READ MORE

Report: Cities Use Nature's Solution to Extreme Heat By increasing tree canopy in arid cities, researchers estimate air temperatures could drop by up to 1.2°C, offering a vital strategy to protect frontline communities from the intensifying heat waves. DOWNLOAD NOW

School Choice Goes Before Voters in 3 States, Faces Pushback in Others Voters in Colorado, Kentucky and Nebraska have school choice questions on the November ballot. READ MORE 

Teaching, Transferable Skills and Cybersecurity: A Career Shift Story Sara Snell started her career as an elementary school teacher. Here is her journey to becoming a state government cyber professional. READ MORE

The Fatal Consequences of Giving Violent Men Access to Their Children Far too often, family courts award shared custody to fathers accused of domestic violence. Hundreds of children have been murdered. There’s much that policymakers could do to prevent some of these tragic outcomes. READ MORE

The Most Important Divide in American Politics Democrats receive increasing levels of support from college-educated Americans, but this has triggered a populist backlash and sharpened polarization. READ MORE

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 Under-Appreciated Power of Political Texting It’s an emerging form of grassroots activism that could have a big impact, from educating voters to calling out political shenanigans. READ MORE

The Whole of State Approach: Safeguarding our Digital Communities This comprehensive guide showcases how a Whole of State approach empowers agencies to collaborate, pool resources, and implement advanced security measures. DOWNLOAD

Three Years in, Missouri Cyber Commission Awaits Members A state-level Cybersecurity Commission, enacted by law in 2021, is required to meet quarterly at a minimum, and to report annually to Gov. Mike Parson. The governor, however, has not appointed any commission members. READ MORE

Upgrading Tech Skills for Municipal and State Agencies Whether it be moving to the cloud or adopting artificial intelligence, the technology needs of government continue to evolve, and agencies must make sure that their technologists' skills evolve as well. READ MORE

Virginia Activates Its Artificial Intelligence Task Force Created by executive order at the start of the year, Virginia has now set its AI Task Force in motion, aiming to support and advise policymakers on the technologies. Ten members have been named; more may follow. READ MORE

Virginia Governor Orders Further Permitting Improvements A new executive order adds teeth to the state’s permit transparency and streamlining work. It instructs agencies to do more to simplify the user experience on their platform, and bring more approval processes on board. READ MORE

Westmoreland County, Pa., Recovers $800K from Cyber Scam Officials at the Municipal Authority of Westmoreland County said the entity, a water and sewer utility, recovered more than $826,000 stolen in a “vendor impersonator” phishing scheme. This, an expert said, is a rare occurrence. READ MORE

Will L.A. County’s Voters Tax Themselves More to Fight Homelessness? A ballot measure would replace an existing tax with a larger one, raising more than $1 billion annually to fund a wider variety of services. It faces an uncertain future at the ballot box. READ MORE

Wisconsin’s New Legislative Maps in Effect for November Election When residents head to the polls on Nov. 5, they will be voting under new legislative maps that are expected to create near-equal chances that either party will gain control of the Legislature. READ MORE

Where a claimant for Workers' Compensation seeks benefits for both physical and psychological injuries, both are compensable if there is a causal connection between the accident and the alleged injuries

Claimant for Workers' Compensation Benefits, a social worker with New York City's Child Protective Services [CPS], was conducting a home visit when the family's dog charged at her, struck her in the chest and knocked her into the side of the house. Claimant, who had been bitten and physically scarred from a dog attack in her youth, filed a claim for workers' compensation benefits in which she alleged that she sustained an injury to her chest, was severely traumatized and had not been able to sleep.

CPS, a self-insured employer, accepted that portion of the claim alleging a traumatic injury to Claimant's chest. A Workers' Compensation Law Judge subsequently found prima facie medical evidence for posttraumatic stress disorder [PTSD], anxiety and acute stress disorder but noted that Claimant had not proffered prima facie medical evidence for a physical injury to her chest. Following a hearing, the Workers' Compensation Law Judge, among other things, established the claim for work-related psychological injuries consisting of PTSD, anxiety and acute stress disorder, and set claimant's average weekly wage and awarded indemnity benefits. CPS sought administrative review by the Workers' Compensation Board [Board].

The Board, among other things, ruled that Claimant had established that portion of her claim alleging a chest injury as the CPS accepted the claim to that extent, but disallowed the claim for work-related psychological injuries involving PTSD, anxiety and acute stress disorder. The Board reasoned that Claimant's experiencing a dog jumping on her while performing a home visit did not constitute psychological stress greater than the stress experienced by similarly situated CPS workers.

Claimant, contending the Board applied an incorrect standard to her claim alleging direct psychological injuries resulting from physical impact by requiring her to demonstrate that she sustained psychological stress greater than similarly situated CPS workers, appealed the Board's determination. 

The Appellate Division agreed with Claimant, observing "Generally, where a psychological injury is alleged to be caused by work-related stress ... it has long been recognized that where a workplace accident is found to have occurred as a result of a physical impact/trauma, resulting physical and psychological injuries are both compensable, so long as the claimant establishes the causal connection between the accident and the alleged injuries."

Here, said the court, the Board established a claim for a physical injury to Claimant's chest based upon the dog jumping on her chest and knocking her into the side of the house. As Claimant alleged that her psychological injuries resulted from that same physical impact that the Board found amounted to a workplace accident, the Board erred in requiring that she establish a separate workplace accident comprised of work-related stress to recover for her alleged direct psychological injuries. The Appellate Division opined that "upon finding that a workplace accident had been established, the Board's inquiry was limited to whether [Claimant] showed, through competent medical evidence, that there was a causal relation between the accident and the injury."

The Appellate Division, reversing the Board's decision, remitted the matter to the Board "to examine whether a causal connection was established between the workplace accident and the alleged psychological injuries consisting of PTSD, anxiety and acute stress disorder."

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

Concerning allegations of having been subjected to libel and, or, slander as the result of a coworker's statements

Plaintiff, a firefighter [and a Commissioner] of the Respondent fire district [FD], alleging that another FD firefighter [Commissioner] accused him of being involved in criminal activities, commenced this action against the Commissioner for libel and slander and against the FD alleging FD created a hostile work environment by failing to enforce (a) its whistle blower policy, (b) its workplace violence policy, and (c) its relevant personnel policy  and (d) by failing to initiate an appropriate response to Commissioner's behavior. 

FD and Commissioner submitted motions for summary judgment dismissing Plaintiff's complaint. 

Supreme Court granted the motions, finding that FD's and Commissioner's statements were substantially true and that the statements were protected by the "common interest" qualified privilege. Supreme Court also determined that Plaintiff "did not articulate a statutory or private cause of action" against FD.

 Plaintiff appealed Supreme Court's dismissal of his complaint, which ruling the  Appellate Division affirmed, explaining:

1. "On a motion for summary judgment, it is the movant's initial burden to establish prima facie entitlement to judgment as a matter of law by submitting proof in admissible form demonstrating the absence of any material issues of fact. Upon such a showing, the burden shifts to the nonmovant to raise a triable issue of fact, again through the submission of competent evidence" and evidence produced by the movant must be viewed in the light most favorable to the nonmovant, affording the nonmovant every favorable inference.

2. "A claim of defamation requires proof that the respondent made a false statement, published that statement to a third party without privilege, with fault measured by at least a negligence standard, and the statement caused special damages or constituted defamation per se".

3. "It is for the court to decide whether the statements complained of are reasonably susceptible of a defamatory connotation, thus warranting submission of the issue to the trier of fact. This determination is made by looking at the context and circumstances surrounding the entire communication".

4. "Even where a derogatory statement has been made, it remains well established that truth is an absolute, unqualified defense to a civil defamation action. As a defense, truth need not be established to an extreme literal degree. Provided that the defamatory material on which the action is based is substantially true (and minor inaccuracies are acceptable), the claim to recover damages must fail".

5. Additionally, "[c]ourts have long recognized that the public interest is served by shielding certain communications, though possibly defamatory, from litigation, rather than risk stifling them altogether".

6. The "common interest" privilege "arises when a person makes a good-faith, bona fide communication upon a subject in which he or she has an interest, or a legal, moral or societal interest to speak, and the communication is made to a person with a corresponding interest".

The Appellate Division's decision notes the Supreme Court properly determined that [alleged offending] statements made during the heated exchange that took place between Plaintiff and [Commissioner] in the course of a public meetings of the FD were not actionable as, giving every favorable inference to Plaintiff, Plaintiff "failed to meet his burden." 

Further, the Appellate Division opined that the Commissioner's statements are subject to the common interest qualified privilege and pursuant to FD's personnel policy, as  the Commissioner had a duty to report ethical or illegal conduct by other FD commissioners. The court also noted that Commissioner's statements "were made in his capacity as a [FD] firefighter and commissioner and referenced legitimate issues related to [FD's] personnel policy and code of ethics".

Noting FD investigated Plaintiff's complaint against Commissioner and is vested with discretion to determine if disciplinary action should be taken or if the matter should be closed, the Appellate Division said official acts involving the exercise of discretion may not serve as a basis for liability nor does an order in the nature of mandamus lie to compel FD to reopen its investigation or arrive at a particular conclusion.

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

 

Protection for employees of the State of New York as the employer serving in non-competitive and labor class positions in the event of the abolition of positions or reductions in force

On October 22, 2024, the New York State Department of Civil Service published Advisory Memorandum 24-07, Protection for Employees in Non-Competitive and Labor Class Positions in the Event of Abolition of Positions or Reductions in Force.

The text of Advisory Memorandum 24-07 is posted on the Internet at: https://www.cs.ny.gov/ssd/Manuals/SPMM/2300ReductionsInForce/AdvisoryMemo24-07.htm.

If you wish to print Advisory Memorandum 24-07, the Department offers a version in PDF format on the Internet at: https://www.cs.ny.gov/ssd/pdf/AM24-07.pdf.

To view previous Advisory Memoranda issued by the Department of Civil Service, visit: https://www.cs.ny.gov/ssd/Manuals/SPMM/

Distinguishing between disciplinary proceedings and employment conditions for employees entitled to statutory civil service protections in placing a tenured employee on leave without pay for failing to submit proof of satisfying COVID-19 vaccination requirements

The Plaintiffs in this action, tenured public school teachers employed by the Board of Education of the City School District of the City of New York [BOE], challenged their placement on leave without pay status after they failed to submit proof of COVID-19  vaccination in accordance with the vaccination requirement imposed on BOE employees by the Commissioner of the New York City Department of Health and Mental Hygiene [Commissioner].

Ultimately the United Federation of Teachers [UFT], the union representing a majority of teachers in NYC public schools, began negotiations with the BOE over implementation of this requirement and the impact on its members. When those negotiations failed, the parties filed a declaration of impasse in accordance with Civil Service Law §209, typically referred to as the Taylor Law, and entered into mediation. Unable to resolve the matter through mediation, the issue was submitted to arbitration.

The arbitrator issued an Impact Award setting out the mechanisms for satisfying the COVID-19 vaccine requirement's implementation which provided as follows:

1. Any unvaccinated employee who had not requested an exemption or who had requested an exemption which has been denied, "may be placed by the BOE on leave without pay" and "[p]lacement on leave without pay for these reasons shall not be considered a disciplinary action for any purpose."

2. While on such leave without pay, the employee would remain eligible for health insurance; and

3. Employees on such leave without pay "who become vaccinated while on such leave without pay and provide appropriate documentation to the BOE prior to November 30, 2021, shall have a right of return to the same school."

The Plaintiffs then filed CPLR Article 75 and 78 petitions challenging their placement on leave without pay status after they failed to submit proof of vaccination in accordance with the vaccination requirement imposed on BOE employees by the arbitration award. Holding that the Appellate Division "properly affirmed dismissal of these petitions", the Court of Appeals affirmed the Appellate Division's dismissal of the petitions filed by the Plaintiffs.

In the words of the Court of Appeals:

"In terms of process, the UFT negotiated with the BOE over every aspect of the imposition of the mandate, which in the first instance was imposed by the Health Commissioner. As set out in Civil Service Law § 209, the UFT and the BOE negotiated, then engaged in mediation, and finally entered into arbitration over the implementation of the mandate and its impact on UFT's members. Indeed, one of the points of contention between the parties leading to the filing of an impasse declaration concerned the placement of teachers who failed to submit proof of vaccination on leave without pay. The UFT subsequently agreed to be bound by the Impact Award established by the arbitrator, and once the arbitrator issued the award, teachers received ample notice of the Impact Award's provisions. Under these circumstances, petitioners were not entitled to hearings in accordance with Education Law §§ 3020 and 3020-a (see Beck-Nichols v Bianco, 20 NY3d at 558-559), nor were their due process rights violated (see id. at 559, citing Matter of Prue v Hunt, 78 NY2d 364, 368 [1991]). Accordingly, their requests for article 78 relief were properly denied."

The text of the Court of Appeals' decision is set out below.

 

Matter of O'Reilly v Board of Educ. of the City Sch. Dist. of the City of N.Y.

2024 NY Slip Op 05130

Decided on October 17, 2024

Court of Appeals

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 October 17, 2024

No. 77

In the Matter of Christine O'Reilly, Appellant,

v

Board of Education of the City School District of the City of New York, et al., Respondents. (And Three Other Proceedings.)


No. 78

In the Matter of Athena Clarke, Appellant,

v

Board of Education of the City School District of the City of New York, et al., Respondents. (And Three Other Proceedings.)

Case Nos. 77 & 78:

Jimmy F. Wagner, for appellant.

Jesse A. Townsend, for respondents.

MEMORANDUM.:

On each appeal, the Appellate Division order should be affirmed, with costs, and the certified question not answered as unnecessary.

Petitioners, tenured public school teachers employed by the Board of Education of the City School District of the City of New York (BOE), brought CPLR article 75 and 78 petitions challenging their placement on leave without pay status after they failed to submit proof of vaccination in accordance with the vaccination requirement imposed on BOE employees by the Commissioner of the New York City Department of Health and Mental Hygiene (the Health Commissioner). Because the Appellate Division properly affirmed dismissal of these petitions, we affirm.

In August 2021, during the public health emergency caused by COVID-19, the Health Commissioner determined "that it is necessary for the health and safety of the City and its residents" to require vaccination, and so issued a mandate requiring all BOE staff to provide proof of vaccination by a date certain. The Health Commissioner explained that "the CDC has recommended that school teachers and staff be vaccinated as soon as possible because vaccination is the most critical strategy to help schools safely resume full operations," noting that DOE "serves approximately 1 million students across the City, including students in the communities that have been disproportionately affected by the COVID-19 pandemic and students who are too young to be eligible to be vaccinated." This mandate was later expanded to include employees of other city agencies, as well as individuals entering certain indoor dining, entertainment, and commercial venues. The United Federation of Teachers (UFT), the union representing a majority of teachers in NYC public schools, began negotiations with the BOE over implementation of the requirement and the impact on its members. When those negotiations failed, the parties filed a declaration of impasse in accordance with Civil Service Law § 209, and entered into mediation, followed by arbitration.

In September 2021, the arbitrator issued the Impact Award, which established mechanisms for the vaccine requirement's implementation. The award provided that "[a]ny unvaccinated employee who has not requested an exemption . . . , or who has requested an exemption which has been denied, may be placed by the BOE on leave without pay" and "[p]lacement on leave without pay for these reasons shall not be considered a disciplinary action for any purpose." While on leave without pay, employees would remain eligible for health insurance, and "[e]mployees who become vaccinated while on such leave without pay and provide appropriate documentation to the BOE prior to November 30, 2021, shall have a right of return to the same school." The award outlined separation options for those employees who remained on leave without pay, and advised employees on leave who had not chosen any of the proffered separation options that by December 1, 2021, the BOE "shall seek to unilaterally separate" these employees.

Petitioners were placed on leave without pay after failing to submit proof of vaccination by the deadline. They each filed nearly identical petitions under article 75, seeking to vacate the Impact Award, and under article 78, seeking to annul their placement on leave without pay and alleging that the BOE violated Education Law §§ 3020 and 3020-a by doing so without providing hearings under those provisions. Four separate Supreme Court judges denied the petitions, generally holding that the article 78 petition was meritless because petitioners were not entitled to Education Law §§ 3020 and 3020-a hearings and that petitioners lacked standing to bring article 75 petitions and failed to join UFT as a necessary party. On appeal, the Appellate Division affirmed the determinations and dismissed the petitions in two separate decisions (213 AD3d 560 [1st Dept 2023]; 213 AD3d 548 [1st Dept 2023]). The Appellate Division held that "petitioners' placement on leave for failure to prove vaccination, a condition of employment, is 'unrelated to job performance, misconduct or competency' and does not constitute 'teacher discipline' " subject to the procedures mandated by "Education Law §§ 3020 (Discipline of teachers) and 3020-a (Disciplinary procedures and penalties)" (213 AD3d at 566, quoting Matter of Beck-Nichols v Bianco, 20 NY3d 540, 558-559 [2013]; 213 AD3d at 550). We now affirm.

Petitioners were not entitled to the hearing procedures outlined in Education Law §§ 3020 and 3020-a before being placed on leave without pay. These statutory provisions establish a detailed and comprehensive system for conducting disciplinary hearings for tenured teachers. While tenured teachers have a right to these statutory hearings when faced with disciplinary proceedings, these provisions are not applicable to petitioners, who were placed on leave without pay for failure to comply with the vaccine mandate, a condition of employment.

This Court has long distinguished between disciplinary proceedings and employment conditions for employees entitled to statutory civil service protections, and has held that statutory hearings are not warranted when employment eligibility conditions are enforced (see Matter of Felix v New York City Dept. of Citywide Admin. Servs., 3 NY3d 498, 505 [2004]; see also Matter of New York State Off. of Children & Family Servs. v Lanterman, 14 NY3d 275, 282-283 [2010]). We have explicitly applied this distinction in the context of tenured teachers, holding that a teacher terminated for failure to comply with a requirement that "defines eligibility for employment" is not entitled to Education Law §§ 3020 and 3020-a hearings (Beck-Nichols, 20 NY3d at 558). Petitioners, who do not challenge imposition of the vaccine mandate here, did not face disciplinary proceedings, but instead failed to comply with "a condition of employment" that was "unrelated to job performance, misconduct or competency" (Felix, 3 NY3d at 501, 505).

In terms of process, the UFT negotiated with the BOE over every aspect of the imposition of the mandate, which in the first instance was imposed by the Health Commissioner. As set out in Civil Service Law § 209, the UFT and the BOE negotiated, then engaged in mediation, and finally entered into arbitration over the implementation of the mandate and its impact on UFT's members. Indeed, one of the points of contention between the parties leading to the filing of an impasse declaration concerned the placement of teachers who failed to submit proof of vaccination on leave without pay. The UFT subsequently agreed to be bound by the Impact Award established by the arbitrator, and once the arbitrator issued the award, teachers received ample notice of the Impact Award's provisions. Under these circumstances, petitioners were not entitled to hearings in accordance with Education Law §§ 3020 and 3020-a (see Beck-Nichols v Bianco, 20 NY3d at 558-559), nor were their due process rights violated (see id. at 559, citing Matter of Prue v Hunt, 78 NY2d 364, 368 [1991]). Accordingly, their requests for article 78 relief were properly denied.

Finally, we agree with the Appellate Division that the requests for article 75 relief were properly rejected because petitioners lacked standing and failed to join UFT as a necessary party, as required for petitioners to allege that UFT violated its duty of fair representation.

In each case:

Order affirmed, with costs, and certified question not answered as unnecessary, in a memorandum. Chief Judge Wilson and Judges Garcia, Singas, Cannataro, Troutman, Halligan and Taylor concur. Judge Rivera took no part.

Decided October 17, 2024

Former educator alleges breach of the duty of fair representation, breach of contract and other wrongdoings by her former employer and her former union

In an action to recover damages for alleged breach of contract and fraud, the Plaintiff in the instant action appealed an order of the Supreme Court granting the motions of a Teachers Association. and a School District [Respondents] and other education entities dismissing Plaintiff's complaint's insofar as asserted against each of them. The Appellate Division affirmed the Supreme Court's ruling "with one bill of costs to the [Respondents] appearing separately and filing separate briefs".

The superintendent of schools for the defendant Union Free School District [District] had reassigned the Plaintiff, a tenured elementary school teacher, from teaching duties to administrative duties. Subsequently the District found that probable cause existed to file disciplinary charges against the Plaintiff pursuant to Education Law §3020-a alleging professional misconduct. Pursuant to a stipulation of settlement of the disciplinary action, Plaintiff agreed to retire and "to release any and all claims against the district defendants in consideration for, among other things, continued receipt of her salary and certain benefits".

Thereafter the District and the Teachers Association [Association] entered into a "memorandum of agreement" providing a retirement incentive of payment of unused sick leave to certain full-time teaching faculty members. The Plaintiff applied for the retirement incentive.

The District rejected her request and in her notice of claim Plaintiff alleged the District's denial of her application constituted a breach of the stipulation of settlement. Plaintiff then commenced the instant action seeking to recover damages for "breach of contract, fraud in the inducement, and negligent misrepresentation".

Plaintiff alleged that prior to the execution of the stipulation of settlement, the Respondents "fraudulently misrepresented, in substance, that no further negotiations affecting the collective bargaining agreement governing the [Plaintiff's] benefits were pending; that the stipulation of settlement entitled her to the retirement incentive offered in the memorandum of agreement; and that the district defendants breached the stipulation of settlement by denying her application".

The Association and the District separately moved to dismiss the complaint insofar as asserted against each of them. Supreme Court granted these motions and Plaintiff appealed.

Sustaining the Supreme Court's rulings, the Appellate Division explained:

1. To state a cause of action to recover damages for a breach of contract, the plaintiff's allegations must identify the provisions of the contract that were breached and here no provision in the stipulation of settlement entitles the Plaintiff to the retirement incentive. The decision further notes that Plaintiff "was not a party to the memorandum of agreement." Thus, opined the Appellate Division, Supreme Court "properly directed dismissal of the cause of action to recover damages for breach of contract";

2. To establish fraud, a plaintiff must prove a misrepresentation or a material omission of fact which was false and known to be false by the defendant and when a plaintiff brings a cause of action based upon fraud, the circumstances constituting the wrong must be stated in detail. Here the Plaintiff's complaint failed to properly plead all of the requisite elements of fraud against the Respondents with sufficient particularity and the complaint, taken at face value, "failed to support the allegation that the defendants misrepresented any facts. For the same reason, the complaint failed to state a cause of action to recover damages for negligent misrepresentation". Accordingly, the Appellate Division found "the Supreme Court properly directed dismissal of the causes of action to recover damages for fraud in the inducement and negligent misrepresentation";

3. Supreme Court, said the Appellate Division, properly directed dismissal of the cause of action sounding in breach of the duty of fair representation as a "Breach of the duty of fair representation occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith". Plaintiff's complaint failed to set forth such conduct. On its face, the exclusion of union members who had previously retired or submitted a letter of resignation for purposes of retirement from the retirement incentive was rational; and

4. To the extent that the Plaintiff's complaint asserted causes of action to recover damages for breach of the implied covenant of good faith and fair dealing or breach of fiduciary duty, the Appellate Division held "Supreme Court properly directed dismissal of those causes of action".

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

 

New York State's Commissioner of Education dismissed an appeal challenging election of certain individuals to a board of education for failure to join necessary parties

Petitioner, an unsuccessful candidate in an election to a school board, sought a "review and disqualification of paper ballots and a new election" by New York State's Commissioner of Education.

The Commissioner dismissed Petitioner's appeal, explaining Petitioner failed to name the successful candidates for election to the school board in the caption of the appeal or personally served those candidates with a copy of the petition. 

As the successful candidates for election to the school board could be adversely affected by the Commissioner's decision in this matter, the Commissioner ruled that "the appeal must be dismissed".

In the words of the Commissioner of Education: 

"A person or entity whose rights would be adversely affected by a determination in favor of a petitioner is a necessary party and must be joined as such (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  Joinder requires that a party be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition, informing the party to appear in the appeal and to answer the allegations contained in the petition (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517).  

"In an appeal regarding a school district election, the petitioner must join the district’s board of education as well as “each person whose right to hold office is disputed” (8 NYCRR 275.8 [d]; see Appeal of Bonelli, 59 Ed Dept Rep, Decision No. 17,795; Appeal of Duffy, 47 id. 86, Decision No. 15,634)."

Respondent held its annual budget vote and election on May 21, 2024.  Petitioner, an unsuccessful candidate, requests a thorough review and disqualification of paper ballots and a new election.  This could adversely affect the candidates elected to the board, who were not named in the caption of this appeal or personally served with a copy of the petition.  As such, the appeal must be dismissed (Appeal of Arroyo Rodriguez and Figurasmith, 63 Ed Dept Rep, Decision No. 18,372; Appeal of Puskuldjian, 61 id., Decision No. 18,048).

In addition, the Commissioner noted New York State's Court of Appeals recently sustained the validity of New York’s early mail voter statute, citing Stefanik v Hochul, 2024 NY Slip Op 04236.

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