New York City Office of Administrative Trials and Hearings Administrative Law Judge recommended Appointing Authority dismiss of all disciplinary charges filed against employee

ALJ Christine Stecura recommended dismissal of charges against Respondent, a correction officer, after Petitioner failed to prove that Respondent had engaged in undue familiarity with detainees. 

Petitioner, the Department of Correction, brought disciplinary charges against Respondent, an investigator with the Correction Intelligence Bureau (“CIB”), for allegedly standing by a partially obscured open cell door that blocked her from camera view while speaking to detainees, giving and receiving unidentified items to and from detainees, and using her cell phone in front of detainees. 

Petitioner relied on security camera footage, and testimony from an investigator and an assistant deputy warden in charge of CIB, to support its allegations. 

Respondent did not dispute that she spoke with detainees at length in the housing areas or used her cell phone in front of detainees but argued that her conduct was related to her work duties as a CIB investigator, which requires speaking with detainees to build rapport and gain intelligence. Testimony from the retired warden of the facility and the assistant deputy warden in charge of CIB bolstered Respondent’s testimony. 

Regarding the allegation that Respondent gave and received unidentified items from detainees, the ALJ concluded that the video evidence showed Respondent passing a paper bag out of camera view to detainees standing behind a cell door. It also showed Respondent on another occasion removing a bag from her pocket, moving it out of camera view behind a cell door, and then returning the bag to her pocket. 

However, Petitioner failed to show that in either instance impermissible items were given or received, or that Respondent’s actions violated security procedures. 

Accordingly, the ALJ recommended dismissal of all charges against Respondent. 

Click HERE to access Judge Stecura's findings and recommendation posted on the Internet.

Plaintiff is not required to exhaust administrative remedies when the cause of action by the plaintiff is not controlled by a provision in a collective bargaining agreement

In an action to recover damages pursuant to Civil Service Law §75-b and for alleged  employment discrimination on the basis of gender and disability, a Plaintiff employed by the New York City Police Department [NYPD] contended the City of New York and NYPD acted in violation of the New York State Human Rights Law (Executive Law Article 15) and the New York City Human Rights Law (Administrative Code of City of NY § 8-101 et seq.).

The City of New York moved, among other things, to dismiss certain causes of action asserted it. Supreme Court granted those branches of the City's motion and Plaintiff appealed.

The Appellate Division held that:

1. "On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must accept the facts alleged by the plaintiff as true and liberally construe the complaint, according it the benefit of every possible favorable inference";

2. Citing NFA Group v Lotus Research, Inc., 180 AD3d 1060, the Court noted that "[e]videntiary material submitted by the plaintiff in opposition to such a motion may be considered to remedy defects in the complaint"; and

3. "An employee covered by a collective bargaining agreement which provides for a grievance procedure must exhaust administrative remedies prior to seeking judicial remedies".

However, opined the Appellate Division "[t]here is no need to exhaust administrative remedies when the cause of action by the plaintiff is not governed by the [collective bargaining agreement]". 

In the instant appeal the Appellate Division, citing Flynn v New York State Dept. of Corr. & Community Supervision, 201 AD3d at 886, observed "the [Plaintiff] is not alleging that the City violated a provision of the applicable collective bargaining agreement, but rather that the City took an adverse personnel action against her in retaliation for a disclosure protected under Civil Service Law §75-b(2)(a),".

Accepting the facts as alleged in the complaint as true, and according Plaintiff "the benefit of every possible favorable inference", the Appellate Division concluded "Supreme Court should have denied that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss so much of [Plaintiff's] second cause of action as alleged, in effect, a violation of Civil Service Law §75-b insofar as asserted against the City."

The Appellate Division's decision is set out below.

Warmbier v City of New York

2025 NY Slip Op 02810

Decided on May 7, 2025

Appellate Division, Second Department

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

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

Decided on May 7, 2025 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
ANGELA G. IANNACCI, J.P.
PAUL WOOTEN
BARRY E. WARHIT
CARL J. LANDICINO, JJ.

2023-10996
(Index No. 701224/22)

[*1]Grace Warmbier, appellant,

v

City of New York, respondents, et al., defendants.

Augello Law Group, P.C., New York, NY (Cynthia A. Augello of counsel), for appellant.

Muriel Goode-Trufant, Corporation Counsel, New York, NY (Melanie T. West and Chloé K. Moon of counsel), for respondent City of New York.

DECISION & ORDER

In an action, inter alia, in effect, to recover damages pursuant to Civil Service Law § 75-b and for employment discrimination on the basis of gender and disability, the plaintiff appeals from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), entered August 1, 2023. The order, insofar as appealed from, granted those branches of the motion of the defendants City of New York and New York City Police Department which were pursuant to CPLR 3211(a)(7) to dismiss the third through eighth causes of action and so much of the second cause of action as alleged, in effect, a violation of Civil Service Law § 75-b insofar as asserted against the defendant City of New York.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendants City of New York and New York City Police Department which was pursuant to CPLR 3211(a)(7) to dismiss so much of the second cause of action as alleged, in effect, a violation of Civil Service Law § 75-b insofar as asserted against the defendant City of New York, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff was employed as a "Criminalist III" with the defendant New York City Police Department (hereinafter NYPD). In May 2022, the plaintiff commenced this action against the NYPD and the defendant City of New York (hereinafter together the defendants), among others, inter alia, in effect, to recover damages pursuant to Civil Service Law § 75-b and for employment discrimination on the basis of gender and disability in violation of the New York State Human Rights Law (Executive Law art 15) and the New York City Human Rights Law (Administrative Code of City of NY § 8-101 et seq.). The defendants moved, among other things, pursuant to CPLR 3211(a)(7) to dismiss the third through eighth causes of action and so much of the second cause of action as alleged, in effect, a violation of Civil Service Law § 75-b insofar as asserted against the City. In an order entered August 1, 2023, the Supreme Court, inter alia, granted those branches of the motion. The plaintiff appeals.

"On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must accept the facts alleged by the plaintiff as true and liberally construe the complaint, according it the [*2]benefit of every possible favorable inference" (Dee v Rakower, 112 AD3d 204, 208; see 1470 39th St., LLC v Goldberg, 226 AD3d 853, 854). Further, "[e]videntiary material submitted by the plaintiff in opposition to such a motion may be considered to remedy defects in the complaint" (NFA Group v Lotus Research, Inc., 180 AD3d 1060, 1061).

Here, contrary to the City's contention, the plaintiff was not required to allege that she exhausted her administrative remedies under the applicable collective bargaining agreement prior to seeking relief pursuant to Civil Service Law § 75-b. "An employee covered by a collective bargaining agreement which provides for a grievance procedure must exhaust administrative remedies prior to seeking judicial remedies" (Shortt v City of New York, 173 AD3d 925, 926; see Flynn v New York State Dept. of Corr. & Community Supervision, 201 AD3d 885, 886). However, "[t]here is no need to exhaust administrative remedies when the cause of action by the plaintiff is not governed by the [collective bargaining agreement]" (Shortt v City of New York, 173 AD3d at 927; see Flynn v New York State Dept. of Corr. & Community Supervision, 201 AD3d at 886). Here, the plaintiff is not alleging that the City violated a provision of the applicable collective bargaining agreement, but rather that the City took an adverse personnel action against her in retaliation for a disclosure protected under Civil Service Law § 75-b(2)(a) (see Flynn v New York State Dept. of Corr. & Community Supervision, 201 AD3d at 886).

Further, accepting the facts as alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d at 87-88), the complaint, together with the plaintiff's affidavit and evidence submitted in opposition to the motion, adequately stated a cause of action alleging a violation of Civil Service Law § 75-b. Accordingly, the Supreme Court should have denied that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss so much of the second cause of action as alleged, in effect, a violation of Civil Service Law § 75-b insofar as asserted against the City.

However, accepting as true the facts alleged in the complaint, and according the plaintiff the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88), the complaint, even as amplified by the plaintiff's submissions in opposition to the motion, failed to state causes of action to recover damages for employment discrimination, unlawful retaliation, or hostile work environment (see Ayers v Bloomberg, L.P., 203 AD3d 872; Polite v Marquis Marriot Hotel, 195 AD3d 965, 967).

The plaintiff's remaining contention is without merit.

Accordingly, the Supreme Court properly granted those branches of the defendants' motion which were pursuant to CPLR 3211(a)(7) to dismiss the third through eighth causes of action insofar as asserted against the City.

IANNACCI, J.P., WOOTEN, WARHIT and LANDICINO, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

New York State Comptroller Thomas P. DiNapoli announced the following local government audits were issued on May 20, 2025

Click on text highlighted in color to access the full audit.

City of Middletown – Payroll and Leave Benefits (Orange County)

City officials did not accurately pay employees’ salaries, wages and benefits or properly accrue leave benefits. Auditors reviewed payments and benefits totaling $1.9 million and found exceptions totaling $292,205, including $191,253 in potential overpayments. As a result, the city paid employees for time they did not work or accrue. Two sewer treatment plant employees received $91,492 for time they may not have worked because they were working at another municipality. City officials made $99,761 in vacation buyout payments that were not in accordance with city collective bargaining agreements.

Town of Philipstown – Financial Management (Putnam County)

The board did not properly manage the town’s financial operations and used the town’s general fund to pay for the Garrison Landing Water District’s (GLWD’s) operation and maintenance costs. During the audit period, the town’s residents paid $2.4 million of the GLWD’s costs that only benefited taxpayers within the water district and resulted in the decline of the general fund balance from $1 million to $53,137. Specifically, the board did not appropriately budget for GLWD operations. Although the town had a GLWD water fund and budgeted approximately $20,000 for debt service in it, the board did not budget for GLWD appropriations in the general fund each year, where annual GLWD expenditures were funded and increased from $85,436 to $975,475 over the six-year audit period. The board did not adopt a transparent budget that clearly communicates the costs associated with GLWD operations or the associated funding sources to taxpayers. The board also did not adopt a comprehensive written multi-year financial plan to help guide the budget development process or establish funds to help finance future expenditures.

Town of Pleasant Valley – Financial Management (Dutchess County)

The board did not develop realistic budgets or properly manage reserves. As a result, the town had significant recurring operating surpluses and may have levied more taxes than necessary. From fiscal years 2019 through 2023, revenues were underestimated and expenditures were overestimated in the general and highway funds, generating operating surpluses totaling $5.1 million and $1.2 million, respectively. The board appropriated fund balance to offset annual deficits that was not needed to fund operations, including $439,870 in the general fund for the audit period and $603,395 in four of the five years reviewed for the highway fund. The board also accumulated surpluses resulting in unrestricted fund balances totaling $4.5 million and $2.4 million in the general and highway funds, respectively, as of Dec. 31, 2023. Because the board did not adopt a fund balance policy and lacked a plan on how the funds will be used, there was no rationale for accumulating significant fund balances.

Village of Leicester – Financial Management (Livingston County)

The board did not effectively manage the village’s fund balance or adopt realistic budgets.

Officials maintained unrestricted fund balance in the general and water funds totaling $729,709 and $152,143, respectively, at the end of the 2023-24 fiscal year, which was sufficient to fund the upcoming fiscal year’s budget appropriations for the general fund by nearly four times and for the water fund by more than half. The board also did not adopt a written fund balance policy or develop and adopt comprehensive written multi-year financial or capital plans that would have assisted the board and officials in developing and adopting realistic budgets and planning for the village’s financial future.

Caledonia Volunteer Fire Department, Inc. – Board Oversight (Livingston County)

The board did not provide adequate oversight of financial operations. In addition, the previous audit report, released March 2014, had similar findings and recommendations concerning the board’s lack of oversight. Because the board did not implement adequate corrective action to address these findings, the same deficiencies exist. The board did not ensure that the financial review committee conducted an annual review of the treasurer’s financial records or that all 325 claims paid between Jan. 1, 2023 and May 31, 2024, totaling $174,302, were reviewed, approved and properly supported. The board also did not ensure the treasurer maintained accurate and complete financial records or provided the board with adequate financial reports, bank statements, canceled check images and bank reconciliations to monitor operations. The board also did not ensure that officials safeguarded and properly supported hall rental and fundraising revenues. From Jan. 1, 2023 through May 31, 2024, deposits, including those for hall rentals and fundraising, totaled $211,917.

Employer failed to establish prima facie entitlement to summary judgment dismissing the complaint by failing to show it lacked constructive notice of the allegedly defective condition

Plaintiff, a teacher, alleged that she fell when she leaned on a defective desk as she was grading papers in a classroom. 

Supreme Court granted the Employer's motion for summary judgment dismissing Plaintiff's cause of action. The Appellate Division, however, unanimously reversed the Supreme Court's ruling "on the law", and reinstated Plaintiff's complaint. 

Although the Employer sustained its burden of establishing that it neither created nor had actual notice of the alleged defective desk, the Appellate Division held that Employer failed to establish prima facie entitlement to summary judgment dismissing the Plaintiff's complaint.

The Appellate Division explained that Employer did not show that the alleged defective condition did not exist when the area was last inspected prior to Plaintiff's fall. 

The Appellate Division's decision is set out below.

Mamah v New York City Dept. of Educ.

2025 NY Slip Op 02877

Decided on May 13, 2025

Appellate Division, First Department

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

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

Decided and Entered: May 13, 2025
Before: Moulton, J.P., Kapnick, Scarpulla, Rodriguez, Higgitt, JJ.

Index No. 28148/19|Appeal No. 4355|Case No. 2024-02688|

[*1]Ramah Mamah, Plaintiff-Appellant,

v

The New York City Department of Education et al., Defendants-Respondents.

Godosky & Gentile, P.C., New York (Robert E. Godosky of counsel), for appellant.

Muriel Goode-Trufant, Corporation Counsel, New York (Karin Wolfe of counsel), for respondents.

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered April 9, 2024, which granted defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied, and the complaint reinstated.

Plaintiff, a teacher at a school in the Bronx, alleges that she fell when she leaned on a defective desk as she was grading papers in the back of a classroom. Defendants sustained their burden of establishing that they neither created nor had actual notice of the alleged defect by submitting the testimony of the school's custodian engineer stating that there had been no prior complaints or injuries related to the desk, and that there was no repair record of any desk because the school discarded broken desks and chairs. Plaintiff also testified that she was not aware of the defective desk leg until after her accident, and that none of the students who used the desk ever reported any defect to her (see Velocci v Stop & Shop, 188 AD3d 436, 439 [1st Dept 2020]).

Nevertheless, defendants failed to establish prima facie entitlement to summary judgment dismissing the complaint, as they did not sustain their burden of demonstrating that they lacked constructive notice of the allegedly defective condition. Although defendants relied on a daily logbook recording the custodian engineer's daily routine for the building, the logbook was not sufficient to show that defendants inspected the classrooms to ensure that they were free from defects (see Dan v City of New York, 227 AD3d 495, 496 [1st Dept 2024]). Furthermore, the custodian engineer testified at his deposition that although he inspected the classrooms every morning, he did so only to make sure that the heat was on. This testimony is insufficient to demonstrate defendants' lack of constructive notice, as it fails to show that the alleged condition did not exist when the area was last inspected before plaintiff fell (see Bonilla v 191 Realty Assoc., L.P., 125 AD3d 470, 470 [1st Dept 2015]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: May 13, 2025

A Government Artificial Intelligence [AI] Webinar Roundup

Catch up on recent AI-focused webinars for Government.

Manage Fewer Resources and Higher Demands with AI PCs Government teams are stretched thin, but AI PCs offer a smarter way to keep up. Watch this on-demand webinar on how these AI-powered devices can help state and local agencies work faster -- without sacrificing security. WATCH NOW   AI at the Edge: What Public Sector CISOs Need to Know Now As artificial intelligence capabilities become embedded in everything from public services to campus operations, leaders in the public sector face a pivotal challenge: How to support innovation without compromising security, compliance or control. WATCH NOW   AI, Automation, and Mitigating Risk in Government IT Watch this on-demand webinar for a discussion on how AI and automation are reshaping government IT operations. WATCH NOW   Quantum-Safe Printing and AI-Driven Protection Cybersecurity isn't just about firewalls and phishing filters anymore. As quantum computing edges closer to reality and AI changes how agencies operate, one often-overlooked part of the tech stack is getting smarter — and safer. WATCH NOW   AI in Action: Real-World Workflows Watch this on-demand webinar webinar where we'll walk through real workflows where AI workstations are already making a difference. You’ll leave with a sharper understanding of what’s possible today, what’s worth piloting next, and what to put on the roadmap for tomorrow. WATCH NOW   Navigating the Federal Transition: AI Use Cases, Security Risks, and What You Need to Know As state and local governments adapt to new federal administration policies and priorities, IT leaders must continue to modernize. This webinar explores what it takes to build AI-ready infrastructure, ensure security and compliance, and learn from real-world use cases in the public sector. WATCH NOW   AI-Powered Automation that Servesfor Efficient Government Gain insights on how to deploy secure, scalable AI solutions that work seamlessly with your current infrastructure—ensuring compliance and minimizing risk. WATCH NOW

To view upcoming and on-demand webinars, visit: webinars.govtech.com   📜 All attendees will have the opportunity to download a certificate of attendance at the completion of a webinar.  For questions or assistance with registration, contact:  resources@govtech.com

From Hype to Habits - Comparing data on generative Artificial Intelligence in law firms

Rochester New York attorney Nicole Black has posted another item, this one addressing Generative Artificial Intelligence as a law firm tool.

Click HERE to access Ms. Black's post on the Internet.

Ms. Black's earlier Daily Record articles can be accessed here.

New York State Comptroller DiNapoli reports his Office of Unclaimed Funds has returned $266,069,545 being held as unclaimed funds to its owners, entities and individuals since January 1, 2025

New York State’s Abandoned Property Law requires certain entities to transfer abandoned money or securities to the New York State Comptroller’s Office of Unclaimed Funds. Entities required to report and remit unclaimed funds include, for example, banks, insurance companies, corporations and government agencies.

These funds are transferred to the Comptroller’s Office of Unclaimed Funds from inactive bank accounts, uncollected insurance policies or refunds, amounts due for undelivered goods or services, abandoned stocks, uncashed checks and more. The Comptroller’s Office of Unclaimed Funds serves as the custodian of such property until it is claimed by the rightful owner.

For example, State Comptroller Thomas P. DiNapoli presented the Long Island Hispanic Bar Association an unclaimed funds check in the amount of $2,988.27 at a recent SOMOS New York Conference. SOMOS is a nonpartisan, nonprofit, "501(c)3 organization" that unites the Latino community.

To access the Comptroller's Internet site to search for "unclaimed funds" belonging to an entity, public or private, or to an individual or to a family, being held by the Comptroller’s Office of Unclaimed Funds, and for instructions for filing an application to retrieve such property from the Comptroller’s Office of Unclaimed Funds, click HERE.

Son admits stealing almost $80,000 of pension benefits deposited into his late father's bank account by the New York State Employees' Retirement System

On May 12, 2025, New York State Comptroller Thomas P. DiNapoli and Nassau County District Attorney Anne T. Donnelly announced the son of a Long Island state pensioner pleaded guilty to identity theft in connection with his theft of nearly $80,000 in pension payments deposited into his late father's bank account. The defendant, Richard Gaines Jr., 55, of Daytona Beach, Florida was arrested in November 2024 following an investigation by DiNapoli’s office.

“Mr. Gaines Jr. tried to profit off of his deceased father’s nearly 30 years of public service,” DiNapoli said. “My office prioritizes protecting our pension system and members from fraud and abuse. My thanks to District Attorney Donnelly for her partnership in ensuring those who steal public funds are held accountable.”

“Richard Gaines Sr. was a dedicated public servant who rightfully earned his pension for nearly 30 years of service to the State of New York. After his death, this defendant dishonestly stole his father’s identity and tens of thousands of dollars of his father’s pension benefits that he had no claim to,” said District Attorney Donnelly. “Public employees work hard knowing that the benefits they earn will ease their retirement. This defendant, motivated by his own greed, tried to take advantage of this system, and with our partners at the New York State Comptroller’s Office, we held him accountable for his crimes.”

The defendant’s father worked for the Nassau County Bridge Authority for 29 years before retiring in 1996. He received state pension payments monthly via direct deposit into his checking account. He died on Nov. 9, 2019, and all pension payments were to end, but DiNapoli’s investigators found Gaines Jr. used his father’s debit card to steal benefits deposited into the account from 2019 to 2022. Gaines Jr. was not an account holder on his father’s checking account and did not report his father’s death to the New York State Local Retirement System until June 2022, at which time payments were stopped.

Gaines Jr. used about $2,484 of the money he stole to make personal purchases at Nassau County businesses. He also made ATM withdrawals in New Jersey, Georgia and Florida.

Gaines Jr. pleaded guilty to identity theft in the first degree in Nassau County Court before Judge Colin O’Donnell. He is due back in court on July 17.

                                            ####

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 mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236, or by emailing a complaint to investigations@osc.ny.gov.

New York State Comptroller Thomas P. DiNapoli posts audits of New York State local governments on the Internet

On May 14, 2025, New York State Comptroller Thomas P. DiNapoli announced the following local government audits were issued.

Click on the text highlighted in color to access the full audit issued.

Town of Sherburne – Budgeting (Chenango County)

The budgets adopted by the board underestimated revenues and overestimated expenditures. In addition, officials appropriated fund balance to balance the budgets because purported revenues were not sufficient to fund operations. However, operating surpluses occurred which resulted in an unplanned increase in fund balance. Furthermore, the board did not have written multiyear capital or financial plans or a written fund balance or reserve policy in place to guide the board’s decisions regarding appropriate fund balance and reserve fund levels. As a result, more taxes may have been levied than were needed to fund the town’s operations.

Yates County – Court and Trust Funds  

The treasurer delayed turning over $44,940 of abandoned property to the State Comptroller for three years. In addition, the county clerk’s register did not include one court and trust action totaling $38,253 identified in the treasurer’s records. Lastly, the surrogate’s court register did not include an action ordering the deposit of $6,867 with the treasurer during 2017.

Town of West Seneca – Audit Follow-Up (Erie County)

The purpose of this review was to assess the town’s progress, as of December 2024, in implementing recommendations in a March 2020 audit. The audit determined that the board did not properly plan and manage a certain capital project and was not fully transparent on the anticipated project costs. As a result, original estimates of $9.8 million were increased by more than $3.6 million after competitive bids were received. In addition, town officials did not ensure an itemized project budget outlining revenues and expenditures was maintained in the accounting records. The audit included four recommendations to help officials monitor and improve the town’s capital project management, none of which were implemented.

Town of Perth – Conflict of Interest (Fulton County)

A board member was the sole proprietor of an automotive company that did business with the town. Therefore, the board member had a prohibited conflict of interest, which means they did not follow state law and the town’s code of ethics. The prohibited interest occurred when the board member’s business repaired a town dump-truck and was paid $13,183 for the repair. The board member with the prohibited conflict of interest, the town supervisor, and another board member approved the $13,183 payment. According to the board member with the conflict of interest, he approved the claim because two board members refused to approve the claim due to their concerns with his prohibited conflict of interest. The town supervisor stated he approved the claim because the repair work was completed so the town had an obligation to pay. Although the town supervisor, who is a member of the town’s board of ethics, had concerns with the payment, he was unable to provide a reasonable explanation for why he did not bring this matter to the board of ethics. The remaining board member approved the claim because the town supervisor had approved it.

Town of Perth – Supervisor’s Records and Reports (Fulton County)

The supervisor did not maintain complete, accurate and timely accounting records or provide adequate financial reports to the board. For example, as of March 31, 2024 the general fund was overstated by $584,018 and the highway fund was understated by $123,066. As a result, the board lacked reliable records and reports to manage the town’s financial operations. The supervisor also did not prepare any monthly bank reconciliations during our audit period and the adjusted bank balances did not agree with the cash balance from the accounting records. The general fund and the highway fund cash balances as of March 31, 2024 were overstated by a combined total of $460,952. The issues identified may have been detected had the board annually audited the supervisor’s records as required by state law.

Montauk Fire District – Payroll – Advanced Life Support (ALS) Employees (Suffolk County)

The board overpaid its 13 ALS employees a total of $9,386. A lack of oversight and inadequate controls led to the overpayments occurring. The district’s inconsistent time records and the secretary-treasurer not reconciling time records before processing payroll enabled three ALS employees to overlap their shifts at the district and the neighboring Amagansett Fire District. Had the chairman of the board, who was responsible for reviewing the payroll, checked the calculations or verified that ALS employee hourly rates were correct before certifying the payroll each pay period, the payroll calculation errors may have been identified and corrected.

Town of Wawayanda – Financial Operations (Orange County)

The board and town officials did not properly manage financial operations, and the board did not provide adequate oversight. The board adopted unrealistic budgets. For example, the board continuously adopted budgets that underestimated revenues by approximately $5.2 million and appropriated $2.2 million of fund balance that was not needed to fund operations during the audit scope period. The board did not effectively manage the town’s fund balance over the last five fiscal years, resulting in operating surpluses that increased unrestricted fund balance from $4.3 million for all funds to $7.7 million as of the end of 2023 or 118% of the 2024 appropriations. The board also did not adopt a fund balance policy. Therefore, no rationale was established for maintaining this level of unrestricted fund balance. As a result, real property tax obligations for town residents were likely higher than necessary.

Auburn Industrial Development Authority (AIDA) – Project Approval and Monitoring (Cayuga County)

The board and AIDA officials did not properly approve and monitor projects. The board and AIDA officials did not review all supplemental documentation for project approval or properly monitor the 16 active projects. AIDA officials did not require project owners to submit supporting documentation for capital investment and job data with applications and ensure project owners submitted the required annual reporting form and supporting documentation needed to monitor project goals, including job retention and creation. In addition, AIDA officials did not conduct policy-required site visits in 2023 and 2024. As a result, the board and AIDA officials did not adequately monitor job creation and retention and did not determine the reasons for all of the variances between 2023 year-end jobs and project goals or document their assessments.

Village of Hudson Falls – Information Technology (IT) (Washington County)

The village board and officials did not establish adequate controls to safeguard IT systems or develop adequate IT policies or procedures. In addition, the board did not develop and adopt an IT contingency plan to help minimize the risk of data loss or suffering a serious interruption of services, periodically test backups or provide IT security awareness training. As a result, village officials cannot be assured that village IT systems are secured and protected against unauthorized use, access and loss, and there is an increased risk that officials could lose important data and suffer a serious interruption in operations.

###

Appeal alleging a violation of the New York State's Dignity for All Students Act supported only by hearsay evidence and subjective interpretations dismissed

The Dignity for All Students Act* [Dignity Act] seeks to provide the State’s public elementary and secondary school students with a safe and supportive environment free from discrimination, intimidation, taunting, harassment, and bullying on school property, a school bus and/or at a school function. 

In this appeal to the Commissioner of Education the Petitioner alleged that the teacher acted unprofessionally toward a student when she accused a certain student and others of cheating, and “intentionally ignored” the student thereafter.  For relief, Petitioner asked that the Commissioner find the teacher had violated the Dignity Act as well as her “removal” from employment with the school district.

Addressing the merits of the Petitioner's appeal, the Commissioner noted hat a district’s Dignity Act determination [1] will only be reversed upon a showing that it was arbitrary or capricious and [2] the petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief.

Finding that the record indicated the School District's Dignity Act coordinator "promptly investigated by interviewing the student and reviewing the complaint and supporting materials" and ultimately determined that the complaint “was not based on harassment, bullying, or discrimination as defined in [the Dignity Act]", the Commissioner found that Petitioner's conflict was with "the teacher’s general teaching/advising style” and the Petitioner’s evidence concerning the matter consisted of "hearsay statements and his subjective interpretation of the  correspondence [received] from the teacher".  

Weighing the probative value of the parties’ respective submissions, the Commissioner found that Petitioner "failed to prove that school district’s Dignity Act determination was arbitrary or capricious" nor had the Petitioner identified any relief that could have been awarded were he to have prevailed as the teacher had earlier resigned from her position with the school district.

* The Dignity Act amended the New York State Education Law by creating a new Article 2 – Dignity for All Students and, in addition, amended Section 801-a of such law addressing instruction in civility, citizenship, and character education and amended Section 2801 of said law by requiring Boards of Education to include language addressing The Dignity Act in their respective codes of conduct.

The text of the Commissioner's decision, Decision of the Commissioner of Education No. 18,551, is set out below and is posted on the Internet.

Decision No. 18,551

Appeal of E.G., on behalf of his child, from action of the Board of Education of the Whitehall Central School District regarding student bullying and application for the removal of a teacher.

Decision No. 18,551

(February 14, 2025)

Girvin & Ferlazzo, P.C., attorneys for respondent, Ryan P. Mullahy and Victoria A. Mosley, Esqs., of counsel

ROSA., Commissioner.--Petitioner appeals a determination of the Board of Education of the Whitehall Central School District (“respondent”) regarding bullying and harassment.  He also seeks the removal of a teacher in connection therewith.  The appeal must be dismissed and the application denied.

Petitioner’s child (the “student”) attended respondent’s high school at all times relevant to this appeal.  On May 8, 2024, petitioner filed a Dignity for All Students Act (“Dignity Act”) complaint alleging that the student’s English teacher engaged in bullying and harassment during the 2023-2024 school year.  The district’s Dignity Act coordinator proceeded to investigate.  By letter dated May 31, 2024, the coordinator determined that there was insufficient evidence of a Dignity Act violation.  An appeal to respondent was denied by letter dated June 20, 2024; this appeal ensued.

Petitioner alleges that the teacher acted unprofessionally toward the student when she accused her (and others) of cheating, tossed a packet of materials on to the student’s desk, and “intentionally ignored” the student thereafter.  For relief, petitioner requests a determination that the teacher violated the Dignity Act as well as her “removal” from employment with the district.

Respondent contends that the appeal should be dismissed on myriad procedural grounds.  Alternatively, respondent contends that petitioner failed to meet her burden of proof.  Respondent additionally argues that the application for removal is moot insofar as the teacher resigned her position within respondent’s district at the end of the 2023-2024 school year.

Initially, petitioner’s application for removal must be denied for lack of the required notice.  Section 277.1 (b) of the Commissioner’s regulations dictates the specific notice required for removal applications pursuant to Education Law § 306, which is distinct from the notice required under section 275.11 (a) for appeals pursuant to Education Law § 310.  The notice of petition secures jurisdiction over the intended respondent and alerts the respondent that he or she must appear in the removal proceeding and answer the allegations contained in the application (Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055; Appeal of Hertel, 49 id. 267, Decision No. 16,021; Application of Barton, 48 id. 189, Decision No. 15,832).  Thus, a removal application that does not include the specific notice required by 8 NYCRR 277.1 (b) is fatally defective and must be denied (Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055; Appeal of White and Carmand, 56 id., Decision No. 16,994; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Petitioner’s application lacks the required notice and, thus, must be denied (Appeal of Melton, 63 Ed Dept Rep, Decision No. 18,359; Appeal of M.B., 56 id., Decision No. 17,044).[1]

Turning to the merits, the Dignity Act prohibits harassment and bullying in public schools.  It defines “harassment” and “bullying,” in relevant part, as: “the creation of a hostile environment by conduct or by threats, intimidation or abuse, including cyberbullying ....” (Education Law § 11 [7]; 8 NYCRR 100.2 [kk] [1] [ix]).  Such a hostile environment may be created where bullying or harassment:

(a) has or would have the effect of unreasonably and substantially interfering with a student's educational performance, opportunities or benefits, or mental, emotional or physical well-being; or

(b) reasonably causes or would reasonably be expected to cause a student to fear for his or her physical safety; or

(c) reasonably causes or would reasonably be expected to cause physical injury or emotional harm to a student ....[2]

A district’s Dignity Act determination will only be reversed upon a showing that it was arbitrary or capricious (Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,859; Appeal of L.D., 55 id., Decision No. 16,864).

In an appeal to the New York State Commissioner of Education, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

The record demonstrates that respondent appropriately responded to petitioner’s Dignity Act complaint.  Upon receipt thereof, respondent’s Dignity Act coordinator promptly investigated by interviewing the student and reviewing the complaint and supporting materials.  After doing so, the coordinator determined that the complaint “was not based on harassment, bullying, or discrimination as defined in [the Dignity Act], but rather [petitioner]’s conflict with [the teacher’s] general teaching/advising style.”  Petitioner’s evidence, by contrast, consists of hearsay statements and his subjective interpretation of correspondence from the teacher.  Weighing the probative value of the parties’ submissions, I find that petitioner has failed to prove that respondent’s Dignity Act determination was arbitrary or capricious (see Appeal of G.M., 62 Ed Dept Rep, Decision No. 18,257; Appeal of M.E., 62 id., Decision No. 18,248; Appeal of John and Jane Doe, 61 id., Decision No. 18,088).  Moreover, petitioners have not identified any relief that can be awarded at this juncture as the teacher has resigned.

To the extent they are not addressed herein, petitioner’s remaining arguments are without merit.

THE APPEAL IS DISMISSED.

THE APPLICATION IS DENIED.

END OF FILE

 

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[1] Additionally, Education Law § 306 only applies to “school officers,” not school employees such as the teacher (Application of Passer, 57 Ed Dept Rep, Decision No. 17,274). 

[2] The fourth and final definition, subsection (d), concerns the circumstances under which off-campus conduct may constitute bullying or harassment (Education Law § 11 [7] [d]).