Government Technology lists live webinars available during the week of August 23, 2021

Tuesday, August 24 | 1:00pm Eastern
Getting Up to Speed on Cyber: Why Application Security is More Critical Than Ever
Rampant cyber-attacks. A rapidly shifting hybrid work environment. Increasingly complex open-source software solutions. Those are just a few of the reasons why it’s never been more important for IT leaders to prioritize application security. For state and local government and education organizations, application security must be made a focus throughout the entire development life cycle, protecting against breaches from end to end.
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Wednesday, August 25 | 2:00pm Eastern
Why Governments May Need to Reevaluate Their Enterprise Search Capabilities
Search engine usage has skyrocketed among constituents and government employees during the pandemic, as the need for timely health information and announcements are crucial. But traditional search capabilities have been a roadblock to quickly finding and accessing what is needed. Modern search platforms based on AI and machine learning can eliminate this frustration, helping the public and agency employees find the answers they need and improving the user experience. Join us to learn the latest innovations in enterprise search capabilities and how they can help the public get the information they need, faster.
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Thursday, August 26 | 1:00pm Eastern
Reimagining the State & Local Workforce through Data
It’s more important than ever for state and local governments to invest in their workforce. New hybrid work models have brought a drastic change to the public sector workforce and agencies still face the same challenges of looming retirements and finding people with the right skillsets. Join us to hear how agencies can use data analytics to overcome these obstacles and better recruit, deploy, train, motivate and retain their employees. You don’t want to miss this webcast that will cover the latest strategies to help agency and HR leaders keep pace with the evolving government workforce and workplace.
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The New York City Teachers Retirement System's rejection of a member's application for accidental disability retirement trumps the Social Security Administration's finding that member was disabled

The genesis of this Article 78 action was New York City Teachers Retirement System [NYCTRS] disapproval of a member's [Plaintiff] application for accidental disability retirement notwithstanding the fact that the Social Security Administration had earlier found that the Plaintiff was disabled.

Supreme Court dismissed Plaintiff's petition, which ruling was unanimously affirmed by the Appellate Division.

Citing Matter of Merlino v Teachers' Retirement Sys. of the City of N.Y., 177 AD3d 430, the Appellate Division opined that NYCTRS' determination to deny Petitioner's application for accident disability retirement was not arbitrary and capricious, and was supported by some credible evidence. The court, noting that NYCTRS' Medical Board determination the Petitioner was not disabled was supported by its physical examination and interview of the Petitioner.

The Board, said the court, found upon examination, Petitioner was able to move around unassisted, had normal strength and range of motion in his shoulders, elbows, wrists, and hips, and had little or no tenderness in his neck and back. Further, the Medical Board noted that Petitioner had not had standard of care epidural injections, trigger point injections, or any other procedures to improve his current complaints.

Although Petitioner claimed that the Medical Board had ignored his medical history, the Appellate Division said that any conflicting evidence was for the Medical Board to resolve.

Addressing Petitioner's reliance on the disability finding of the Social Security Administration that Petitioner was disabled, the court said the Social Security Administration's finding was not dispositive of the Medical Board's disability determination nor did the finding of a medical arbitrator, who examined Petitioner after the Medical Board made its determination, "warrant Article 78 relief." 

CLICK HEREto access the full text of the Appellate Division in this action.

Claiming the public-interest privilege in an effort to prevent the disclosure of communications between public officials alleged to be confidential

In this appeal, the Appellate Division considered the so-called "public-interest privilege," a common-law rule that "attaches to confidential communications between public officers, and to public officers, in the performance of their duties."

The rule may be applied where it can be shown that the public interest requires that such confidential communications or its sources should not be divulged because "the public interest would be harmed if the material were to lose its cloak of confidentiality".

The genesis of this action was a New York City Charter §93(b) investigation of the City of New York's preparation for, planning for, and response to the COVID-19 pandemic initiated by New York City's Comptroller. The Comptroller sought to identify how those actions impacted the City, its finances, residents and businesses. In connection with the investigation, the Comptroller issued a "request for information" to the City seeking information and communications related to the COVID-19 pandemic. When the City did not fully comply with the request for information, the Comptroller served a subpoena seeking the City's production of certain documents received, created or issued by the City. Additionally, over the course of the investigation, the Comptroller issued subpoenas seeking the testimony of certain City officials concerning the pandemic. 

Ultimately the matter was considered in the course of a special proceeding in which the City filed an answer and cross petition seeking a court order "dismissing the special proceeding and quashing, modifying or fixing conditions on the City's compliance with the subpoena."

Citing Matter of World Trade Ctr. Bombing Litig., 93 NY2d 1, the Appellate Division said that the governmental body asserting the public-interest privilege must offer specific support as to the potential harm to the public from disclosure of the information and, in the rare case, that this may require an in camera* examinations of the communications involved. Further, said the court, the privilege will be applied in the event the entity objecting to disclosing the information demonstrates that the public interest in confidentiality outweighs the public interest in disclosure.

The Appellate Division concluded that, based on the affidavits presented in the course of the special proceeding, in this particular situation the interest in protecting the City's pre-decisional and deliberative communications is stronger than the interest in allowing the Comptroller "to review, and possibly publish, the communications as part of his investigation."

In the words of the Appellate Division: "Given the ongoing threat of the pandemic, the Mayor and his leadership team needed access to information and unvarnished advice from all sources. This required that the sources have some assurance that their advice would remain confidential and free from fear of reprisal. The public disclosure of the requested documents involving confidential, deliberative communications among an inner circle of decision-makers concerning an emergency response to a pandemic could chill future deliberations about pressing matters, potentially to the public's harm."

Noting that Supreme Court did not make a ruling whether a privilege log or in camera review is necessary in this instance because the only issue litigated was the applicability of the privilege, the Appellate Division ruled that the Comptroller's request for a privilege log and in camera review of the documents over which the City claims privilege should be made to Supreme Court.

Click HERE to access the full text of the Appellate Division's ruling.

A collective bargaining agreement's silence with respect to a claim for certain benefits defeats a claim for such benefits pursuant to such collective bargaining agreement

The plaintiffs in three appeals from Supreme Court rulings decided on the same day by the Appellate Division, Caldara v County of Westchester, 2021 NY Slip Op 04693, [Caldara], Westchester County Corr. Officers Benevolent Assn., Inc. v County of Westchester, 2021 NY Slip Op 04733, [04733] and Westchester County Corr. Officers Benevolent Assn., Inc. v County of Westchester, 2021 NY Slip Op 04734 [04734], commenced their respective actions seeking to recover damages for the Westchester County's alleged breach of a collective bargaining agreement [CBA] based on Westchester's failure to pay certain benefits to the plaintiffs.

In Caldara the plaintiffs allege that any police officer who has been receiving disability benefits pursuant to General Municipal Law §207-c and who then receives a disability retirement pension upon the County of Westchester's application is entitled, upon retirement, to benefits equivalent to those provided by the Workers' Compensation Law for loss of earning capacity due to permanent partial or total disability.

Similarly, in 04733, theplaintiffs alleged that any correction officer who has been receiving disability benefits pursuant to General Municipal Law §207-c and who then receives a disability retirement pension upon the County of Westchester's application is entitled, upon retirement, to benefits equivalent to those provided by the Workers' Compensation Law for loss of earning capacity due to permanent partial disability while in 04074 plaintiffs argued that any correction officer who has been receiving disability benefits pursuant to General Municipal Law §207-c and who then receives a disability retirement pension upon the County of Westchester's application is entitled, upon retirement, to benefits equivalent to those provided by the Workers' Compensation Law for loss of earning capacity due to permanent total or partial disability.

In each action Westchester Countyrelied on its argument that the relevant collective bargaining agreement was silent as to such awards, and, as such, the relevant plaintiffs were not entitled, upon retirement, to benefits equivalent to those provided by the Workers' Compensation Law for loss of earning capacity due to permanent partial or total disability. In each action Westchester Countymoved to dismiss the complaints, and those plaintiffs' cross-moved pursuant to CPLR 3025(b) for leave to amend their complaint. The Supreme Court granted the County's motions and denied the plaintiffs' cross motions, and the respective plaintiffs appealed.

The Appellate Division, affirming the lower court ruling in each action, said that "When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action," citing Sokol v Leader, 74 AD3d 1180. Further, said the court, "In considering such a motion, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory", noting the Court of Appeals ruling in Leon v Martinez, 84 NY2d 83.

Here, opined the Appellate Division, the relevant plaintiffs failed to identify a specific provision in the relevant CBA that requires the Westchesterto pay benefits equivalent to those provided by the Workers' Compensation Law for loss of earning capacity due to permanent partial or total disability. Accordingly, the court held that Supreme Court properly granted Westchester's motion to dismiss the complaint.

Click the text in blue to access the text of that Appellate Division decision in  Caldara.

Click in blueto access the text of that Appellate Division decision in 07433.

Click on blueto access the text of the Appellate Divisions decision in 07434.