New York State Governor Hochul announces confirmation of administration appointees by Senate

 

On May 22, 2024, New York State Governor Kathy Hochul announced the confirmations of two administration appointees by the State Senate. Walter T. Mosley has been confirmed as Secretary of State and Robert J. Rodriguez has been confirmed as President and Chief Executive Officer of the Dormitory Authority of the State of New York.

 

“As we work to make New York more affordable, more livable and safer, it's critical to have a Cabinet with the skills and experience to deliver on these policies policies,” Governor Hochul said. “Walter Moseley and Robert Rodriguez are talented public servants who understand State government, and I look forward to working with them on ways to improve the lives of all New Yorkers.”

 

Walter T. Mosley served in the New York State Assembly from 2013 to 2020, representing communities in central Brooklyn including the neighborhoods of Fort Greene, Clinton Hill, Prospect Heights and parts of Bedford Stuyvesant and Crown Heights. Mr. Mosley was a member of the Black, Puerto Rican, Hispanic & Asian Legislative Caucus (BPHA), the Hispanic Task Force, and the Jewish Caucus. He also served as co-chair of BPHA’s Marijuana Regulation and Taxation Task Force on Cannabis. In his capacity as a BPHA Caucus member, Mr. Mosley served as Second Vice-chair and as the Budget Chair.

 

Mr. Mosley has had a long history of public service, serving as a Legislative Analyst and Oversight Investigator for the New York City Council, Senior Consultant to the New York State Assembly, and Senior Advisor to the Deputy Speaker of the New York State Assembly prior to becoming a member of the New York Legislature in 2013.

 

Mr. Mosley received a bachelor’s degree from Pennsylvania State University and received a law degree from Howard University. Mr. Mosley currently lives in the Capital Region.

 

Robert J. Rodriguez served as Secretary of State for more than two years, where he oversaw the Department of State and advanced initiatives to provide a better quality of life and expand opportunities for all New Yorkers. Prior to joining the administration, Mr. Rodriguez served as a member of the New York State Assembly for 11 years, representing Assembly District 68, where he focused on protecting and creating affordable housing, bringing good jobs into the community and ensuring children received a quality education. He served as Co-Chair of the Legislative Task Force on Demographic Research and Reapportionment, founding Chair of the Assembly sub-committee on Infrastructure and Member of the Committees on Ways and Means, Housing, Labor, Banking, Corporations and Authorities and Mental Health.

 

Mr. Rodriguez also held private sector roles as a Director at Public Financial Management, Vice-President at A.C. Advisory, Inc. and various management and operations roles at Bloomberg LP. In addition, he served on a number of volunteer boards including as Chairman of Manhattan Community Board 11 and as a member of the Board of Directors of the Upper Manhattan Empowerment Zone.

 

Mr. Rodriguez is a graduate of Yale University, where he received a bachelor’s degree in history and political science, and New York University Stern Business School where he received an MBA in Finance. He is also an emerging leader of the New America Alliance, and a Council for Urban Professionals (CUP) Fellow.

 

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The United States Court of Appeals, Second Circuit, held the challenged arbitration award unambiguously granted disgorgement of certain interest and fees, but concluded that the arbitrator's award of profits is too ambiguous to enforce and must be remanded to the arbitrator for clarification

US Second Circuit Court of Appeals 

22-1783, August Term, 2023 Argued: October 25, 2023 

Decided: May 21, 2024 Docket No. 22-1783

 

THE TRUSTEES OF THE NEW YORK STATE NURSES ASSOCIATION PENSION PLAN, Petitioner-Appellee,

—v.—

WHITE OAK GLOBAL ADVISORS, LLC, Respondent-Appellant.

 

Before: LYNCH and PARK, Circuit Judges, and CLARKE,† District Judge.

Respondent-Appellant White Oak Global Advisors, LLC appeals from a judgment of the United States District Court for the Southern District of New York (Kaplan, J.), entered in favor of Petitioner-Appellee Trustees of the New York State Nurses Association Pension Plan on their petition to confirm an arbitral award between the parties.

The award, resolving several ERISA fiduciary duty claims brought by the Trustees against White Oak, was rendered pursuant to an arbitration clause contained in the investment management agreement by which White Oak assumed its ERISA fiduciary relationship to the pension plan.

The Clerk of Court is respectfully directed to amend the caption.

On appeal, White Oak argues that the district court lacked jurisdiction to confirm the award after the Supreme Court’s decision in Badgerow, which held that federal courts cannot premise jurisdiction over a Federal Arbitration Act §§ 9-11 petition based on whether jurisdiction would have existed over the underlying dispute.

White Oak further contends that, even if jurisdiction existed, the court erroneously interpreted the award when it granted the Trustees preaward interest on the disgorgement of the Plan’s assets, return of the “Day One” fees collected by White Oak, and White Oak’s “profits,” as the award did not grant or was ambiguous regarding such relief. Finally, White Oak asserts that the district court abused its discretion in ordering, under its inherent authority, payment of the Trustees’ attorneys’ fees and costs for the entirety of the confirmation proceeding.

We conclude that the Trustees’ petition is cognizable under ERISA §502(a)(3), as the Trustees are a party authorized by that provision to sue; to enforce a right – the arbitration agreement – created by a plan document or term; and to request equitable relief against a co-fiduciary to the plan. Such suits, brought by a fiduciary on behalf of the beneficiaries to enforce a plan document or term against a co-fiduciary, seek relief traditionally equitable in nature. We therefore agree with the district court that it possessed jurisdiction to confirm the arbitral award.

Turning to the merits, we find that the award unambiguously granted disgorgement of prejudgment interest and the “Day One” fees, but that the award of profits is too ambiguous to enforce and must be remanded to the arbitrator for clarification.

Finally, we agree that the district court failed to make sufficiently specific findings tailored to White Oak’s conduct so as to justify the award of attorneys’ fees and costs for the entirety of the confirmation proceeding.

Accordingly, we AFFIRM the order confirming the arbitral award insofar as it grants disgorgement of pre-award interest and the “Day One” fees; VACATE and REMAND insofar as the court confirmed the disgorgement of “profits,” with instructions to the district court to remand this item of relief to the arbitrator for a determination of the existence and extent of profits; and VACATE and REMAND the order granting the Trustees their attorneys’ fees and costs on the action to confirm the arbitral award for the district court to make more specific findings justifying its sanction.

† Judge Jessica G. L. Clarke, of the United States District Court for the Southern District of New York, sitting by designation.

Click HERE to access the text of the Second Circuit 90 page opinion in this matter.

Village sued to recover damages for alleged negligent hiring, retention, supervision, and training of a sworn officer employed by the village's police department

 

Olsen v Butler

2024 NY Slip Op 02713

Decided on May 15, 2024

Appellate Division, Second Department

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

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

Decided on May 15, 2024 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
COLLEEN D. DUFFY, J.P.
WILLIAM G. FORD
BARRY E. WARHIT
LAURENCE L. LOVE, JJ.

2022-00032
(Index No. 2033/21)

[*1]Steven Olsen, respondent,

v

Brian E. Butler, et al., defendants, Village of Tuxedo Park, et al., appellants.

McCabe & Mack LLP, Poughkeepsie, NY (Kimberly Hunt Lee of counsel), for appellants.

Michael J. Aviles & Associates LLC, New York, NY (Natascia Ayres of counsel), for respondent.

DECISION & ORDER

In an action, inter alia, to recover damages for negligent hiring, training, supervision, and retention, the defendants Village of Tuxedo Park and Tuxedo Park Police Department appeal from an order of the Supreme Court, Orange County (Robert A. Onofry, J.), dated December 8, 2021. The order, insofar as appealed from, denied that branch of those defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action to recover damages for negligent hiring, training, supervision, and retention asserted against them.

ORDERED that the appeal from so much of the order as denied that branch of the motion of the defendants Village of Tuxedo Park and Tuxedo Park Police Department which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action to recover damages for negligent hiring, training, supervision, and retention insofar as asserted against the defendant Tuxedo Park Police Department is dismissed as academic since the Tuxedo Park Police Department is no longer a named defendant in the action; and it is further,

ORDERED that the order is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

In March 2021, the plaintiff commenced this action against, among others, the Village of Tuxedo Park, the Tuxedo Park Police Department (hereinafter the Police Department), and Michael Taback, a Police Department sergeant. The plaintiff alleged that, in October 2020, Taback, while off-duty and inebriated, verbally assaulted, physically attacked, and shot the plaintiff at the Golden Rail Ale House in Newburgh. In an amended complaint, the plaintiff asserted a cause of action to recover damages for negligent hiring, training, supervision, and retention against the Village and the Police Department (hereinafter together the defendants). Thereafter, the defendants moved pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against them. The plaintiff opposed the motion and cross-moved for leave to serve and file a second amended complaint. In an order dated December 8, 2021, the Supreme Court granted the plaintiff's cross-motion for leave to serve and file a second amended complaint, and deemed the second [*2]amended complaint served and filed. The second amended complaint did not name the Police Department as a defendant. The court also denied that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action to recover damages for negligent hiring, training, supervision, and retention asserted against them.

In considering a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the court must afford the pleading a liberal construction, accept the facts as alleged in the pleading as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87; Bumpus v New York City Tr. Auth., 47 AD3d 653, 654). When evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate (see Guggenheimer v Ginzburg, 43 NY2d 268, 275; Quiroz v Zottola, 96 AD3d 1035, 1037).

To establish a cause of action based on negligent hiring, retention, supervision, and training of an employee, a plaintiff must demonstrate that the "employer knew or should have known [that] the employee[ ] [had] a propensity for the conduct which caused the [plaintiff's] injury" (Bumpus v New York City Tr. Auth., 47 AD3d at 654 [internal quotation marks omitted]; see Moore Charitable Found. v PJT Partners, Inc., 40 NY3d 150, 157). "[A]llegations that a defendant had actual knowledge of prior acts by an employee similar to those alleged in the complaint satisfy the notice element" (Moore Charitable Found. v PJT Partners, Inc., 40 NY3d at 158). The notice element is also satisfied if "a reasonably prudent employer, exercising ordinary care under the circumstances, would have been aware of the employee's propensity to engage in the injury-causing conduct" (id. at 158-159).

Here, the second amended complaint sufficiently alleged that the Village knew or should have known of Taback's alleged propensity for the conduct that the plaintiff alleged caused his injuries (see Hutchinson-Headley v HP Arverne Preserv. Hous. Co., Inc., 219 AD3d 709, 711; Belcastro v Roman Catholic Diocese of Brooklyn, N.Y., 213 AD3d 800, 802). The second amended complaint also sufficiently alleged that the Village knew or should have known that it had the ability to control Taback and of the necessity and opportunity for exercising such control, and that Taback engaged in tortious conduct using property or resources available to him only through his status as an employee (see Moore Charitable Found. v PJT Partners, Inc., 40 NY3d at 157). Moreover, contrary to the defendants' contention, the second amended complaint adequately alleged a nexus between the Village's negligence in hiring and retaining Taback and the plaintiff's injuries (see id. at 162).

Accordingly, we affirm the order insofar as reviewed.

DUFFY, J.P., FORD, WARHIT and LOVE, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

 

Litigation against a School District and its Board resulting from merger of two school districts deemed timely and may be maintained notwithstanding the fact that the succeeding entity came into existence as a result of the centralization of the two school districts

 

AL 557 Doe v Central Val. Cent. Sch. Dist.

2024 NY Slip Op 02652

Decided on May 10, 2024

Appellate Division, Fourth 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 10, 2024 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., LINDLEY, BANNISTER, OGDEN, AND DELCONTE, JJ.

970 CA 22-01908

[*1]AL 557 DOE, PLAINTIFF-RESPONDENT,

v

CENTRAL VALLEY CENTRAL SCHOOL DISTRICT, FORMERLY KNOWN AS ILION CENTRAL SCHOOL DISTRICT, CENTRAL VALLEY CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION, FORMERLY KNOWN AS ILION CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION, DEFENDANTS-APPELLANTS, AND EAST FRANKFORT SCHOOL, DEFENDANT.

GIRVIN & FERLAZZO, P.C., ALBANY (PATRICK J. FITZGERALD OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

LAFAVE, WEIN AND FRAMENT, PLLC, ALBANY (JASON A. FRAMENT OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

 

Appeal from an order of the Supreme Court, Herkimer County (Jeffrey A. Tait, J.), entered November 2, 2022. The order, insofar as appealed from, denied in part the motion of defendants to dismiss the amended complaint.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action pursuant to the Child Victims Act (see CPLR 214-g) against defendants Central Valley Central School District, formerly known as Ilion Central School District (Central Valley); Central Valley Central School District Board of Education, formerly known as Ilion Central School District Board of Education (Board); and East Frankfort School.

The parties on this appeal do not dispute that, in 2013, Ilion Central School District (Ilion) merged with Mohawk Central School District as a part of a centralization to become Central Valley Central School District. After defendants answered, they moved to dismiss the amended complaint pursuant to CPLR 3211 (a) (7), contending, among other things, that they are not proper parties to the action because Central Valley did not exist until 2013, and the centralization that occurred in 2013 pursuant to Education Law §§ 1801 and 1802 (1) resulted in the dissolution of Ilion. They also contended that East Frankfort School ceased to exist in 1977 and, at all relevant times, was merely a part of Ilion and lacked a separate and distinct legal existence. Supreme Court denied the motion to dismiss except insofar as it sought to dismiss the amended complaint against East Frankfort School. Central Valley and the Board (collectively, appellants) now appeal, and we affirm.

We conclude, initially, that the action may be maintained against Central Valley and the Board, notwithstanding that Central Valley and the Board came into existence in 2013 as a result of the centralization. Education Law § 1804 provides for a centralized school district's responsibility to a component district's property and indebtedness. Pursuant to section 1804, a "central school district's board of education becomes the successor in interest of the trustees of school districts which merge into the centralized district" regardless of when the centralization occurred (Board of Educ. of Ramapo Cent. School Dist. v Greene , 112 AD2d 182, 184 [2d Dept 1985]). Moreover, the component district "shall continue to exist in law . . . for the purpose of providing for and paying all its just debts" (Education Law § 1518; see § 1804 [5] [a], [b]). We [*2]therefore conclude that Central Valley and the Board are proper parties to this action, but we note that any responsibilities resulting from this action will be left to the Board to address by taxing only the property owners of the component district from which those responsibilities arose (see generally Matter of Locust Val. Lib. v Board of Educ. of Cent. School Dist. No. 3 of Town of Oyster Bay , 54 Misc 2d 315, 323-324 [Sup Ct, Nassau County 1967]).

Contrary to appellants' contention, nothing in the plain language of the relevant statutes suggests that only fixed debts known to the component district at the time of centralization are "just debts." Plaintiff's causes of action accrued during Ilion Central's pre-centralization existence (cf. Barringer v Powell , 230 NY 37, 42 [1920]) and, pursuant to CPLR 214-g, the causes of action have been timely raised. Under the circumstances of this case, "just debts" are those debts, if any, "which shall turn out to be just" after all legal defenses have been exhausted (Martin v Gage , 9 NY 398, 401 [1853] [internal quotation marks omitted]).

Entered: May 10, 2024

Ann Dillon Flynn

Clerk of the Court

New York State's Comptroller releases audits of a number of municipalities

On May 120, 2024, New York State Comptroller Thomas P. DiNapoli announced the following municipal audits were issued.

Click on the text highlighted in COLOR to access the complete audit report posted on the Internet.

Town of Throop – Oversight of the Supervisor’s Cash Collections and Disbursements (Cayuga County)

The former supervisor did not properly collect and disburse cash assets in his custody, nor did the board ensure the supervisor properly performed these duties. The audit found $15,823 in missing funds. Auditors also determined that the former supervisor was inappropriately reimbursed $1,526 for expenditures on the town’s credit card and did not deposit five cash receipts totaling $22,464 intact, which could indicate cash was diverted. He routinely circumvented the approval process by manually writing checks using a typewriter and blank check stock and disbursed 106 payments totaling $782,518 prior to board approval. He also kept a town computer used to record cash transactions after leaving office. The computer was eventually returned; however, all data had been erased prior to its return. In January 2024, the former supervisor was arrested for stealing town funds and pleaded guilty to grand larceny in the fourth degree and official misconduct. The former supervisor was sentenced in February 2024. He paid full restitution of nearly $11,000 and was barred from seeking public office again.

Town of Throop – Highway Department  

The board and superintendent did not agree, in writing, to expenditures for highway repair and improvement as required. As a result, the board’s ability to sufficiently plan and budget for long-term road maintenance was diminished. They also did not enter into written shared service agreements for projects conducted with surrounding towns or maintain records to track the costs related to these services to ensure taxpayer equity. The superintendent did not maintain a complete and up-to-date equipment inventory. Therefore, the board may not be able to sufficiently plan and budget for the replacement of highway equipment and there is an increased risk of equipment loss and misuse. Additionally, the supervisor did not retain documentation related to scrap metal sales or account for sales totaling $1,277.

Town of Throop – Procurement  

The board did not always ensure that officials solicited competition for purchases subject to competitive bidding or for professional services. Competitive bidding requirements were not followed for 72 purchases totaling $887,952 of the 180 purchases reviewed and competition was not sought for professional services from seven providers totaling $595,996 – 99% of the $601,037 total services obtained from eight vendors.

Village of Horseheads – Claims Auditing and Disbursements (Chemung County)

Based on our sample of $1.1 million in claims and disbursements reviewed, village officials did not properly audit all claims or authorize disbursements. As a result, payments were made for unsupported, duplicate and improper claims. Village officials did not ensure an independent review of parks and recreation department claims occurred or ensure all claims contained adequate supporting documentation for 140 purchases totaling $44,547. They also did not ensure the village’s procurement policy was followed for three purchases totaling $19,179, or document whether claims were audited prior to funds being disbursed. Unnecessary telephone and internet services resulted in expenditures of $5,406. The State Comptroller’s office commenced a separate investigation into the possible misappropriation of village funds. In August 2023, the assistant clerk was arrested on charges of grand larceny and corrupting the government. In March 2024, the clerk pleaded guilty to attempted petit larceny and paid full restitution.

Village of Horseheads – Collections

Village officials did not properly record or deposit all collections in a timely manner. Officials did not reconcile departmental records with village records, utilize records that could verify deposits were made intact, complete timely bank reconciliations, or perform annual audits. Auditors determined code enforcement officers did not accurately record collections totaling $1,804 and cemetery department collections and code enforcement permit collections totaling $71,992 were deposited an average of 15 and 21 days late, respectively. In addition, code enforcement cash collections totaling $150 were not deposited until auditors identified the discrepancy. Lastly, the board did not comply with the state law requiring the board to annually audit the clerk-treasurer’s records and reports. The last audit was conducted in 2018.

City of Long Beach – Budget Review (Nassau County)

Auditors found that the significant revenue and expenditure projections in the 2024-25 proposed budget are reasonable. The proposed budget includes revenue estimates for metered water sales of $5.6 million and sewer rent estimates of $5 million based on rate changes which the city council has not yet authorized. Unless the rate changes are authorized and made in a timely manner, water and sewer fund budgets should be modified accordingly. The city’s proposed budget includes a tax levy of $60.1 million, which is within the limit established by law.

###

 

Employee challenged the New York City Department of Education's directive requiring him to submit to a medical examination pursuant to Education Law §2568

 Decisions of the New York State Commissioner of Education

Decision No. 18,401

(April 25, 2024)

Robin Roach, General Counsel District Council 37, AFSCME, AFL-CIO, attorneys for petitioner, Terry Buck, Esq., of counsel

Hon. Sylvia O. Hinds-Radix, Corporation Counsel, attorney for respondent, Christopher G. Arko, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals from actions related to a directive of the New York City Department of Education (“respondent” or “DOE”) that he submit to a medical examination pursuant to Education Law § 2568.  The appeal must be dismissed.

Petitioner has been employed by respondent since April 2018.  By letter dated May 1, 2023, respondent directed petitioner to report for a medical examination to determine his mental and/or physical capacity to perform his job duties pursuant to Education Law § 2568, citing nine reasons therefor.  Respondent reiterated this directive in an email dated June 27, 2023.  Petitioner submitted to the examination on July 12, 2023. 

On August 10, 2023, a human resources employee emailed petitioner and stated:  “[a]fter review of the medical documentation by the DOE doctor, restoration of health leave has been advised.”[1]

On August 22, 2023, respondent informed petitioner that the medical examination found him unfit for work; as such, he needed to apply for “restoration of health leave” effective August 10, 2023 if he sought to “maintain [his] healthcare coverage.”  Petitioner applied for this leave on August 30, 2023.  This appeal ensued.

Petitioner argues that respondent erred in requiring him to undergo a medical examination pursuant to Education Law § 2568.  He asserts that Civil Service Law § 72 applies to his circumstances, which only permits a medical examination where an “employee is unable to perform the duties of his or her position by reason of disability.”**  Petitioner also asserts that respondent violated Civil Service Law § 72 by failing to give him “[w]ritten notice of the facts” underlying the recommendation that he undergo the medical examination.[2]  He seeks declarations that respondent acted unlawfully, reinstatement to his position, and backpay.

Respondent contends that the appeal is untimely.  Respondent further asserts that the Commissioner lacks subject matter jurisdiction over the Civil Service Law issues in this appeal.  On the merits, respondent argues that it acted lawfully and had ample reason to require petitioner to submit to a medical examination.

Petitioner’s claims must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  Petitioner commenced this appeal on September 27, 2023, more than 30 days after respondent’s two directives to appear for a medical examination and the examination itself.  I am not persuaded by petitioner’s claim that respondent’s actions relating to the medical examination constitute a continuing wrong (see Nykorchuck v Henriques, 78 NY2d 255, 259 [1991]).  Accordingly, the portion of the appeal challenging respondent’s medical examination directive must be dismissed as untimely (Appeal of A.D., 46 Ed Dept Rep 236, Decision No. 15,492).

Petitioner’s claims pursuant to Civil Service Law § 72 must also be dismissed as untimely.   Petitioner alleges that this statute entitled him to “[w]ritten notice of the facts providing the basis for the judgment” that he was “not fit to perform the duties of his ... position” (Civil Service Law § 72 [1]).  Assuming without deciding that this provision applies, the written notice of facts “shall be provided to [an] employee ... prior to the conduct of the medical examination” (id.).  Thus, petitioner knew that this information had not been provided on the day of his examination, which was more than two months prior to the commencement of this appeal.  As such, this claim must also be dismissed as untimely.

For the benefit of the parties, I note that petitioner has not proven the applicability of Civil Service Law § 72 to this appeal.  In an appeal to the Commissioner, 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 directed petitioner to undergo a medical examination pursuant to Education Law § 2568, which applies to “any person employed” by the City School District of the City of New York (see Appeal of Grossberg, 33 Ed Dept Rep 5, Decision No. 12,956).  This provision, and not Civil Service Law § 72, applies under the circumstances because a more general statute generally must yield to a more specific statute (Matter of Zelazny Family Enters., LLC v Town of Shelby, 180 AD3d 45, 48 [4th Dept 2019]; McKinney’s Cons Laws of NY, Book 1, Statutes § 397).  Indeed, a case involving one of respondent’s employees arising after enactment of Civil Service Law § 72 (1) considered and applied Education Law § 2568 without reference to the Civil Service Law (Newman v Board of Educ. of City Sch. Dist. of City of N.Y., 594 F2d 299 [2d Cir 1979]; see also Appeal of Grossberg, 33 Ed Dept Rep 5, Decision No. 12,956).

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

** Civil Service Law §72 applies to public employees in the Classified Service of the State as the employer or a political subdivision of the State [see Civil Service §40]. Educators are in the Unclassified Service [See Civil Service Law §35(g)] and §72 does not obtain with respect to such personnel [See Civil Service Law §6].

 

---

[1] While undefined in the record, it appears that “restoration of health” is a category of employee leave offered by respondent similar to Family and Medical Leave Act leave (Douyon v New York City Dept. of Educ., 665 Fed Appx 54, 56, n.1 [2d Cir 2016] [summary order])

[2] Petitioner also complains that he should have been placed on involuntary leave rather than directed to utilize “restoration of health leave.”  While I need not address this claim for the reasons described below, petitioner has not explained how he was aggrieved thereby (see Matter of Ingram v. Nassau Cnty., 85 AD3d 1175, 1177 [2d Dept 2011] [noting that involuntary leave under Civil Service Law § 72 is unpaid]).

 

New York Public Personnel Law e-books published by BookLocker

 

NYPPL e-books concerning laws, rules, regulations, policies, provisions in collective bargaining agreements and court and administrative decisions addressing the employment of individuals in the public service of New York State and its political subdivisions published by BookLocker, Inc.

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

 

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

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

 

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

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

 

Selected links to items focusing on governmental operations posted on the Internet during the week ending May 17, 2024

 

 3 Signs It’s Time to Find a New IT Service Management Tool Upgrading your ITSM tool can boost efficiencies, save money and result in better service delivery for end users. READ MORE

 

A Wake-Up Call on Digital Experience and Accessibility Research shows agency websites have more barriers than public officials may think. This paper explains how agencies can ensure equity for individuals with disabilities and improve usability for all constituents. DOWNLOAD

 

AI Adding New Fraud, Scam Challenges for Police Joan Lawcewicz, a financial crimes investigator in Chippewa Falls, Wis., said that artificial intelligence has made this type of scam even more problematic and easier to fool the unsuspecting public. READ MORE

 

AI: A Wildland Firefighter’s New Best Friend? Pano AI’s CEO discusses how artificial intelligence is revolutionizing wildfire detection and response by helping agencies optimize resource allocation and protect lives through smarter firefighting tactics. READ MORE

 

AI’s Potential in Government? Ask the Chief Data Officer Colorado Chief Data Officer Amy Bhikha is playing a central role in the state’s approach to artificial intelligence. She and her peers across the country are joining forces to safely unlock the opportunities AI offers. READ MORE

 

Americans Worry AI Deception Will Affect 2024 Elections More than three-fourths of Americans expect that abuses of artificial intelligence will affect the 2024 presidential election, according to a new national survey. READ MORE

 

Arizona Fiber Work Will Connect Vehicles and Residents A public-private partnership involving two state agencies and a broadband technology provider will lay more than 400 miles of fiber-optic conduit on three Arizona interstates. It will link connected vehicles as well as homes and businesses. READ MORE

 

As Property Tax Bills Rise, States Look for Long-Term Solutions Lawmakers in Mountain West seek to provide permanent tax relief without harming local revenue. READ MORE

 

Atlanta Considers Banning Data Centers from Beltline, Transit Stops Proposed legislation would prohibit data center development along the 22-mile Beltline trail loop and from within a half mile of transit centers, including MARTA stations and BRT stops. Existing data centers would be unaffected. READ MORE

 

Bridging Communication Gaps in Civic Infrastructure Projects From roads to bridges to drainage systems, a successful civic infrastructure project requires communication among all stakeholders. But communication challenges can arise throughout the life cycle of any infrastructure asset. READ MORE

 

Build Your Government AI Strategy AI value creation isn’t just about the technology. Learn how to build a successful AI strategy for your organization’s unique challenges with the AI Strategy Roadmap. DOWNLOAD THE GUIDE

 

California Offers $400 to Test Gas Tax Alternatives State officials are offering up to $400 in gift cards to drivers who are willing to try out a new system aimed at replacing the gas tax with funding based on the number of miles a person drives. READ MORE

 

California Taps Vendors to Explore Generative AI Use Cases Following a gubernatorial executive order on generative artificial intelligence and new guidelines in March, the state will work with five technology companies to “test, iterate, and evaluate” GenAI and create proofs of concept. READ MORE

 

California’s Project Roomkey for the Unhoused Was a Success but May Be Too Expensive to Last An independent study found that more than 62,000 people received temporary housing under the program that moved medically vulnerable people from the streets and congregant shelters to empty hotel and motel rooms. READ MORE

 

CARE Resource Connection Fills a Public Safety, Health-Care Gap The nonprofit connects chronic 911 callers to the resources they need so that fire departments aren’t tied up and those patients don’t end up having to get their health care from the emergency room. READ MORE

 

Colorado Bill Requires Law Enforcement to Codify Prone Restraint Policy A new bill would require Colorado law enforcement agencies to publish policy on the controversial "prone restraint", a technique that many critics link to the deaths of those restrained facedown. READ MORE

 

Cybersecurity, Deepfakes and the Human Risk of AI Fraud AI-generated cyber attacks and deepfakes mean new risks and new ways to fight them. "Human risk management" is a term to describe how organizations train their staff to detect these evolving threats. READ MORE

 

Decode AI for Government AI is changing the game at every level of Government. Learn how Generative AI and Large Language Models can revolutionize constituent engagement and help solve some of society’s most pressing challenges. Start the Learning Path >

 

Delaware Single Sign-On Adds Payment Portal for Residents
As governments nationwide work toward providing digital services via an Amazon-like experience, CIO Greg Lane outlines launching Delaware’s single sign-on solution with a payment portal. READ MORE

 

Eliminate Silos to Innovate Your Transportation System Bike paths, bus systems, crosswalks and airports — all should work together, transportation leaders said recently. Forging an efficient and seamless network, they agreed, can bring challenges, but opportunities as well. READ MORE

 

Empowering Local Leaders with New Skills in Tennessee Technology leaders in Tennessee found an innovative approach to improve local government IT skills. The state may be the only one in the nation that's using federal ARPA funding to pay for training in cybersecurity and other essential tech disciplines in local governments statewide. DOWNLOAD

 

Exploring Emerging Trends in Government Technology — ICYMI William “Bill” Eggers, executive director of Deloitte’s Center for Government Insights, explores the latest technologies and anticipates trends for government in 2024. READ MORE

 

Federal funding is complex. The KPMG Smart Grants Platform suite is helping governments transform grants management for better outcomes. EXPLORE MORE

 

Fixing California Budget Deficit May Mean Cutting Broadband In the May revision of his proposed 2024-2025 fiscal year state budget, Gov. Gavin Newsom called for $2 billion in cuts to rolling out high-speed Internet. It’s possible, he said, “to actually achieve similar goals at a lower cost.” READ MORE

 

How Can Generative AI Impact Government Services? From simplifying constituent experiences to empowering public servants, Generative AI is here to transform government operations and services. Read the report >

 

How Inclusive Content Can Increase Resident Engagement Local government websites should be resident engagement tools, not digital brochures or org charts. We use intuitive navigation, smart search, and more for optimal self-service. DOWNLOAD NOW

 

How Private Schools Improve Civic Education A recent study suggests that private schools are slightly more effective than public schools when it comes to boosting student achievement in civics and their understanding of it. READ MORE

 

If AI Wrecks Democracy, We May Never Know Propaganda doesn’t need to go viral to sway elections anymore. That makes artificial intelligence’s impact more insidious and harder to detect. READ MORE

In the report Reimagining Public Sector Services with Generative AI, we learned how public servants around the world are using generative AI to reimagine operations and services.

Lack of ITIL and Automation Remain Public-Sector Challenges A study found public-sector IT struggles with automation and ITIL. Learn how to tackle these challenges and gain insights into what other public-sector IT leaders are doing to solve these problems. READ MORE

 

Maryland Dashboards Aim to Be Economic Shock Absorbers The state Department of Commerce and the Eastern Shore Regional GIS Cooperative have launched four dashboards that aggregate multiple streams of demographic and economic data, providing insight for government and residents. READ MORE

 

Massachusetts Offers New Cyber Grants to Local Governments The recently announced Cyber Resilient Massachusetts Grant Program offers state funds to help address cybersecurity gaps identified by vulnerability assessments. Applications are due July 1. READ MORE

 

Michigan Airport Will Probe Its Cybersecurity Strength The Cherry Capital Airport in Traverse City will work with contractor Windemuller Electric to do a vulnerability assessment. Officials will look at the airport’s computer network and do an internal audit of digital systems. READ MORE

 

Minnesota Going Digital for Licensing Hunters, Fishers, Trappers, Boaters and State Trail Users The state’s licensing and permitting system for outdoor recreation will undergo a digital  transformation next year that will help it better manage some 2.3 million license transactions annually. READ MORE

 

Moses Lake Cuts 103 Teachers After $11 Million Accounting Error The Washington state school district mistakenly recorded revenue twice during the accrual and reconciliation process, revealing a $20 million shortfall when the error was corrected. The staff reduction will save about $13 million. READ MORE

 

Moving Courts to the Cloud Court and justice leaders are learning that deploying their own cloud solutions often generates new infrastructure challenges. Software-as-a-service avoids these issues and helps courts upgrade systems, launch new services and scale services to meet growing demand. DOWNLOAD

 

New Mexico Official Works to Raise Awareness of Deepfakes With election season poised to start, New Mexico’s secretary of state wants to make the public more aware of the ways deepfakes and artificial intelligence can be used to manipulate information. READ MORE

 

Nine Website Design Techniques to Help Residents Find Information in Two Clicks Local government websites should be easy to navigate. Learn more about CivicPlus's 2-click concept to and build trust within your community by ensuring they can find the information they need in the most efficient way possible. DOWNLOAD NOW

Now, in a new e-Book from Microsoft, we're learning how to apply responsible AI practices with six strategies for AI implementation. This guide isn't just an insightful read - it's a blueprint for future-proofing AI governance! 

NSBA 2024: How Should School Boards Approach AI in the Classroom? At the National School Boards Association conference in April, school board members from across the U.S. said they intended to find partners and leaders who could help their districts make decisions about AI. READ MORE

 

NSBA 2024: Students Must Learn AI to Compete on Global Stage In Bakersfield, Calif., Chris Cruz-Boone and other school leaders gathered input from parents, teachers and industry leaders on what every graduating student should have. An ability to innovate was one priority. READ MORE

 

Pennsylvania Hopes to Recruit Workers Ahead of Retirement Wave Gov. Josh Shapiro signed an executive order on Monday that pioneers several initiatives to attract public service workers. Approximately 18,000 state employees will become eligible to retire in the next five years. READ MORE

 

Peregrine Raises $30M as Public Safety Tech Market Grows The company, which sells data integration software for state and local agencies, plans a hiring spree. The company is eyeing steady growth as more governments demand better ways to assemble and use data. READ MORE

 

Plummeting Balance in Federal Crime Victims Fund Alarms States A 6-year plunge in federal funding that aids victims of sexual assault, domestic violence and child abuse is causing alarm among state and local organizations that rely on those dollars to provide services. READ MORE

 

Port San Antonio Wants to Build $1B Air Force Cyber Campus Though no one in the Pentagon asked, Port San Antonio wants to help the 16th Air Force find a new home to carry out its military cyber mission on the organization's Southwest Side industrial campus. READ MORE

 

Prince George’s County AI Executive Order Targets Equity, Access Among its directives, the order from the Maryland county’s executive creates an AI task force that will be responsible for drafting strategies, use cases and priorities. “Digital access equity” is central to that work. READ MORE

 

Reimagining the Future of Public-Sector IT With a crowd of more than 900 people, the NASCIO Midyear Conference buzzed with energy about generative artificial intelligence, along with concern that humans remain in charge. READ MORE

 

Restorative Urbanism in Over-the-Rhine A look back to look forward in Cincinnati's best-known urban neighborhood. READ MORE

 

RSA 2024: AI’s Growing Influence Amplifies Global Cyber Impact As another RSA Conference in San Francisco ended on May 10, 2024, the global impact that cybersecurity and artificial intelligence bring to every area of life has become much more apparent. READ MORE

 

RSA: Can Interventions Turn Teens from Cyber Crime to Cybersecurity? Teen hackers are becoming powerful cyber criminals, and their misbehavior is often hidden from parents until it becomes a felony. Now, authorities are aiming to divert teen hackers from cyber crime into cybersecurity. READ MORE

 

RSA: U.S. Releases International Cyberspace and Digital Strategy Secretary of State Antony Blinken said the plan aims to build domestic emerging tech strengths and collaborations with like-minded partners on international supply chains and global norms of safe and rights-respecting technology use. READ MORE

 

RSA: White House Updates National Cybersecurity Strategy Critical infrastructure is a big focus of this new federal refresh, with top goals around cybersecurity protections for health care, education, energy and water. READ MORE

 

Short-Staffed? How AI Helps New Jersey Residents Reach City Hall The Borough of Prospect Park has deployed a tool from gov tech startup Polimorphic to respond to incoming telephone calls. The artificial intelligence is helping a small staff connect with residents despite a reduced work week. READ MORE

 

SLCGP Money Goes to Training, Assessments, Policy Development As the deadline for year two funding approaches, Washington CISO Ralph Johnson talks about the state’s spending priorities with historic federal support for cybersecurity as the NASCIO Midyear conference gets underway in National Harbor, Md. READ MORE

 

Small Georgia Agency’s Big Part in Climate, Infrastructure Spending The state’s Environmental Finance Authority acts as a bank, a development authority and an aid agency all at once. The agency’s mission is about to get even larger as it will manage $1 billion of federal aid. READ MORE

 

Smart Cities and Cybersecurity: Protecting Citizens from Malicious Attacks Smart cities and cybersecurity are inseparable. When you start integrating the Internet of Things with infrastructure, a city cyber attack is, unfortunately, inevitable. But that doesn't mean it has to be successful. READ MORE

 

So Revolutionary, It Deserves Two Mic Drops The Microflex® Wireless neXt system is a 2 channel, all-in-one wireless audio solution for conferencing and presentation in hybrid classrooms, training rooms, and lecture halls. LEARN MORE

 

Taking a Broad Approach to Digital Identity This thought leadership paper explains why states need to go beyond adopting mobile driver’s licenses (mDLs) to fully address digital identity and fraud. The paper explores the advantages and disadvantages of mDLs, the spectrum of digital ID options, and best practices. DOWNLOAD

 

The Answer to Ransomware? ‘Doubling Down on the Fundamentals’
Alaska CIO Bill Smith said that while ransomware is a huge threat and priority for him and the other state CIOs at the NASCIO Midyear conference, the most important way to turn the tide is getting back to basic cyber hygiene. READ MORE

 

The Best Way to Do Infrastructure Projects Some interest groups don’t like project labor agreements, but new research shows that they benefit taxpayers and the construction industry while strengthening our skilled trade workforce. READ MORE

 

The Fiscal Fix Our Unemployment Insurance Systems Need State agencies are trying to address technical shortcomings that led to as much as $135 billion in fraud during the pandemic. But declining and volatile federal funding for administration is impeding those efforts. READ MORE

 

The Power of Simple for Government Read this brief to find out how applying cloud operating principles and practices to on-premises network infrastructure can help agencies manage complex IT environments. DOWNLOAD

 

Using AI, Indiana Outlines Career Paths for Job Seekers The state of Indiana has implemented a tool called Pivot, which leverages artificial intelligence to support job seekers by unveiling potential career paths personalized to their career goals. Later this year, it will begin to take on other tasks. READ MORE

 

What the U.S. Still Needs to Do to Combat Ransomware Experts recently discussed new early-warning tools, strategies for disrupting cyber criminals long term, and awareness and preparation campaigns that reach everyone. READ MORE

 

What’s Next for AI in States? An AI Sandbox With policies and guardrails in development around the country on responsible use of generative AI, Massachusetts and Georgia are creating environments where agencies can safely find real-world uses for the emerging tech. READ MORE

 

White House Will Require Cyber Standards for Hospitals The Biden administration plans to require hospitals to meet minimum cybersecurity standards, and will provide free training to small, rural hospitals. The moves follow the February Change Healthcare hack that may impact 1 in 3 Americans. READ MORE

 

Why Some Cities Want to Combine Transit Agencies Chicago and San Francisco are looking to consolidate the transit agencies in their respective cities, proposals backed by state lawmakers. Advocates say such reforms could improve service for riders and make it easier for politicians to address funding issues. READ MORE

 

Wi-Fi Access Provider Nomadix Enters the SLED Market The U.S.-based company, the target of a acquisition earlier this year, provides web infrastructure tools to hotels and other businesses with public areas. The move is a response to local agencies’ need to boost community engagement. READ MORE