Labor Law §565 (2) (e) excludes from employment services rendered for a governmental entity by a person in a major nontenured policymaking or advisory position

An Assistant Counsel and Legislative Coordinator in the Executive Chamber served in a nontenured position from December 2019 until August 2021. The Department of Labor denied claimant's subsequent application for unemployment insurance benefits upon the ground that claimant was employed in a major nontenured policymaking or advisory position with a governmental agency and, therefore, his employment was excluded from covered employment pursuant to Labor Law §565(2)(e). Claimant appealed the Labor Department's rejection of his application.

The Appellate Division, however, dismissed claimant's appeal, opining "There is no dispute that claimant held a nontenured position in the Executive Chamber, and the record as a whole provides a rational basis for the Board's finding that claimant served in a major policymaking or advisory role."

 

Matter of Herskowitz (Commissioner of Labor)

2024 NY Slip Op 03527

Decided on June 27, 2024

Appellate Division, Third 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:June 27, 2024

CV-23-1035

[*1]In the Matter of the Claim of Craig Herskowitz, Appellant. Commissioner of Labor, Respondent.

Calendar Date:May 28, 2024
Before:Garry, P.J., Egan Jr., Lynch, Fisher and Powers, JJ.

Craig Herskowitz, New York City, appellant pro se.

Letitia James, Attorney General, New York City (Dennis A. Rambaud of counsel), for respondent.

Fisher, J.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 7, 2022, which ruled that claimant was ineligible to receive unemployment insurance benefits because he was employed in a major nontenured policymaking or advisory position within the meaning of Labor Law § 565 (2) (e).

At all times relevant, claimant was one of approximately 10 individuals employed as an Assistant Counsel and Legislative Coordinator in the Executive Chamber. He was appointed to this nontenured position by the Counsel to the Governor in December 2019 and served in that capacity until August 2021. The Department of Labor denied claimant's subsequent application for unemployment insurance benefits upon the ground that claimant was employed in a major nontenured policymaking or advisory position with a governmental agency and, therefore, his employment was excluded from covered employment pursuant to Labor Law § 565 (2) (e). Following a hearing, an Administrative Law Judge sustained the initial determination. Upon administrative review, the Unemployment Insurance Appeal Board affirmed, prompting this appeal.

We affirm. Initially, any argument regarding the admission into evidence of Hearing Exhibits 6 and 7 is unpreserved for our review as claimant raised no objection in this regard at the administrative hearing (see e.g. Matter of Lamo [Commissioner of Labor], 205 AD3d 1297, 1298 [3d Dept 2022]; Matter of DeCarlo [Commissioner of Labor], 6 AD3d 1003, 1003 [3d Dept 2004]). Turning to the merits, "[f]or purposes of determining a claimant's eligibility for unemployment insurance benefits, Labor Law § 565 (2) (e) excludes from employment services rendered for a governmental entity by a person in a major nontenured policymaking or advisory position" (Matter of Birnbaum [Commissioner of Labor], 122 AD3d 1039, 1040 [3d Dept 2014] [internal quotation marks and ellipsis omitted]; see Matter of Briggs [Commissioner of Labor], 90 AD3d 1349, 1350 [3d Dept 2011]). Whether this exclusion applies "presents a mixed question of law and fact, [and] the Board's determination must be upheld if it has a rational basis" (Matter of Franconeri [New York City Dept. of Personnel-Hudacs], 190 AD2d 970, 971 [3d Dept 1993]; see Matter of Birnbaum [Commissioner of Labor], 122 AD3d at 1040; Matter of Le Porte [New York City Dept. of Personnel-Hartnett], 142 AD2d 866, 866 [3d Dept 1988], lv denied 73 NY2d 705 [1989]). In this regard, whether a claimant's recommendations or advice is heeded — or the fact that his or her decisions are subject to approval by a higher authority — is irrelevant (see Matter of Newell [County of Nassau-Commissioner of Labor], 9 AD3d 559, 560 [3d Dept 2004], lv denied 3 NY3d 610 [2004]). Finally, "it is within the exclusive province of the Board to evaluate evidence and the inferences to be drawn therefrom, and the Board is the final arbiter of witness credibility" (Matter of Fraternal Order of Eagles [Commissioner of Labor], 209 AD3d 1067, 1068 [3d Dept 2022[*2]] [internal quotation marks and citations omitted]; see Matter of Kramer [RTTemps, LLC-Commissioner of Labor], 202 AD3d 1230, 1231-1232 [3d Dept 2022]).

There is no dispute that claimant held a nontenured position in the Executive Chamber, and the record as a whole provides a rational basis for the Board's finding that claimant served in a major policymaking or advisory role (see Matter of Birnbaum [Commissioner of Labor], 122 AD3d at 1040-1041; Matter of Townes [Commissioner of Labor], 114 AD3d 989, 990-991 [3d Dept 2014]; Matter of Richman [Commissioner of Labor], 254 AD2d 673, 673-674 [3d Dept 1998]). The testimony offered by the Executive Chamber's then-Chief Administrative Officer and the information contained in Hearing Exhibit 1, which outlined claimant's job duties and was received into evidence without objection, established that claimant served as the "chief legal advisor" on issues affecting the three state agencies contained within his designated portfolio. In that capacity, claimant, among other things, "approved the development of the legislative agenda of each agency" and "was the only attorney advising the [Counsel] on major matters," including litigation strategies, involving those agencies. Notably, claimant conceded that he advised the Counsel regarding legal issues involving the relevant state agencies, negotiated with the Legislature with respect to the "content, breadth, and scope of proposed legislation" and would "fill in" for the Counsel in meetings related thereto. Although claimant denied that he played a major policymaking or advisory role in the Executive Chamber, insisting that he was more akin to a "mid-level employee," any conflict in the hearing testimony presented a credibility issue for the Board to resolve (see Matter of Lamo [Commissioner of Labor], 205 AD3d at 1298; Matter of Richman [Commissioner of Labor], 254 AD2d at 674), and — as noted previously — the fact that claimant's decisions were subject to review and/or approval by the Counsel or the relevant deputies is not determinative (see Matter of Newell [County of Nassau-Commissioner of Labor], 9 AD3d at 560). Accordingly, claimant's application for unemployment insurance benefits was properly denied (see Matter of Franconeri [New York City Dept. of Personnel-Hudacs], 190 AD2d at 971-972). Claimant's remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit.

Garry, P.J., Egan Jr., Lynch and Powers, JJ., concur.

ORDERED that the decision is affirmed, without costs.

Selected links to items concerning government operations posted on the Internet during the week ending July 5, 2024

$5B for EV Infrastructure Yields Just 11 Charging Stations Slow rollout of the federal program has frustrated lawmakers, especially those in Michigan, which received $110 million through fiscal year 2026 for EV expansion but has funded no new power stations. READ MORE

Are We Only 20 Years from the Singularity? When futurist Ray Kurzweil popularized the idea that AI would one day surpass human intelligence, he predicted its occurrence in 2045. With two decades to go, now is the time to get ahead on regulating it. READ MORE

Aurigo Offers Free Trial for Capital Planning Software The trial, meant to promote updates to the Aurigo Essentials product, could help local and regional agencies decide the best way forward for construction management tools. The move comes amid a relatively high level of public-sector infrastructure spending. READ MORE

Budget Tech Firm IGM Raises Strategic Growth Investment The company offers the Gravity platform and sells budgeting, compliance and other tools to local and state governments. A gov tech veteran will join the board of directors following the growth equity investment. READ MORE

Can Human-Centered Design Help Rebuild Trust in Government? States are investing in ways to incorporate the end user's experience into digital services, looking at how people truly use platforms and how to improve them. Some say it’s what government should have been doing all along. READ MORE

Can Struggling Houses of Worship Be Turned Into Housing? Not Always. “YIGBY” is a hot trend, but there are better uses for some faith-based organizations’ surplus real estate. READ MORE

Checklist: Is Your Website Your Single Source of Truth? 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. GET MY CHECKLIST

CivicPlus Launches Its Own Local Govt. Consulting Service  The company, which sells digital tools to local public agencies, plans to use its own data, survey reports and analysis to help officials decide how to invest in technology, craft budgets and do other jobs. The man leading the effort explains the thinking behind it. READ MORE

DeSantis Vetoes Three Criminal Justice Reform BillsThe bills, which passed with bipartisan support, would have made it easier for felons who’d served time to re-enter society successfully. But Gov. DeSantis said they would reward criminals. READ MORE

Digital Curb Management Can Make Streets Earn Their Keep Cities are no longer seeing their miles of streetscape as cheap parking spaces. Curbs are now considered some of the most in-demand pieces of urban real estate, and technology is stepping up to help manage them. READ MORE

Digital Transformation Success Stories Discover why CivicPlus® is trusted by local governments nationwide. Download our fact sheet to see what our #CPfamily says about partnering with us for their website redesign projects. DOWNLOAD NOW

FBI Probes IT Disruption at Saratoga Springs, N.Y., City Hall The city network is offline, though other services are available, after the IT department was alerted late Tuesday a police officer was unable to access his account on the city computer system. Ransomware is not believed to be to blame. READ MORE

 Feds Award $18.2M in Cybersecurity Grants to Tribal Nations The Department of Homeland Security's Tribal Cybersecurity Grant Program is set to send the money to 32 tribal nations, aiming to help strengthen cybersecurity postures against rising threats. READ MORE

Generative AI in Health Care: Opportunities and Cautions Generative AI (GenAI) is transforming healthcare by enabling new possibilities in data analysis, patient care, and administrative tasks. However, its implementation raises concerns about bias, cybersecurity, and ethics. This research brief provides an overview of GenAI's capabilities, use cases, and potential drawbacks in healthcare. DOWNLOAD

Getting Connected: How Wide Is the Digital Divide? Buoyed by unprecedented federal funding as well as a widely accepted understanding that Internet is a fundamental part of modern life, states and cities confront the remaining obstacles to getting everyone online. READ MORE

Government, Partners Plan Together for Accessible AI As the federal government moves forward on assessing and using artificial intelligence technologies, three partners are working to ensure people with disabilities are engaged throughout the process. READ MORE

Hawaii Governor Names Christine Sakuda Next State CIO Most recently the executive director of the nonprofit Transform Hawaii Government, she will replace Doug Murdock as CIO and lead the state Office of Enterprise Technology Services starting Aug. 5. READ MORE

How a Modular Business Solutions Strategy Addresses Workforce Gaps State and local governments face ongoing workforce challenges, including budget constraints and difficulty competing with the private sector. Often, antiquated technology and outdated processes make it even harder to attract and retain new employees. READ MORE

How Contact Centers Can Innovate Without Disruption Contact centers are essential to creating a satisfying customer experience (CX) for government agencies and their constituents. In this Government Technology Q&A, Jerry Dotson, vice president of public sector, Avaya Government Solutions, explains how the right CX platform lets government organizations implement new contact center technologies easily and efficiently. READ MORE

How Local Leaders Can Overcome Barriers to Public Transit As city and county leadership look to solve their communities’ most urgent problems, they may lack an important tool: an effective public transit system. This report examines new survey data and case studies to show how local leaders can meet their public transit goals, even in the face of low budgets and other limitations. DOWNLOAD

How Managed Print Services Automate Maintenance and Protect Networks Copiers and printers are office essentials, but every printer and copier represents another network endpoint that needs protection from cyberattacks. Many agencies need to better protect and manage these standard pieces of equipment. The right partnership can provide security while automating routine administrative tasks. Download the publication to learn more about the flexibility and security available with managed print services. DOWNLOAD

Iowa Supreme Court Allows 6 Week Abortion Ban to Take Effect Most abortions are now illegal in the state. A ban passed last year had been held up by a lower court’s injunction but justices ruled Friday, 4-3, that it can stand. READ MORE

ISTELive 24: How Should K-12 Students Interact With AI? AI tools excel at generating content, but knowing what to do with that content is the skill that human users must bring to the table. Students tend to learn it best when trying to solve problems they care about. READ MORE

Maine’s First Research Satellite Primed for California Launch Weather or technical glitches notwithstanding, the state of Maine’s inaugural research satellite was due to lift off from Vandenberg Space Force Base in California early Tuesday. Its aim? Collecting climate data. READ MORE

Michigan County Restores 80 Percent of Systems After Cyber Attack The computer-aided dispatch system for Grand Traverse County's 911 service is also officially back online following a cyber attack that disabled the system and many other governmental services. READ MORE

Modernizing Spaces for a Hybrid Workforce Wake County, the largest county in North Carolina at over 1 million residents, is home to North Carolina State University as well as Raleigh, the state capital. The county is known for its innovative spirit and has been modernizing to meet the increasing demand for remote work. The county recognized the need for a more seamless approach to collaboration between its in-office and remote teams. DOWNLOAD

Montgomery County, Md.’s Chatbot Shows GenAI in Action I’m always looking for best practices and examples to share around government AI and cyber projects. Monty 2.0 is certainly praiseworthy and a GenAI project to watch and learn from. READ MORE

More States Consider Voter ID Laws Despite Contradicting Research In a June poll, 84 percent of registered Nevada voters supported implementing voter ID rules. Some studies indicate ID requirements impede access, but evidence is mixed. READ MORE

N.Y. State Tech Hub Cities to Get $40M in Federal Funds The cities of Buffalo, Rochester and Syracuse collectively received funding via a “tech hub” competition run by the U.S. Economic Development Administration. They’ll use it to develop an area semiconductor industry. READ MORE

New AI Tool Will Help Track Bacteria on Texas Beaches A 2023 study found that 90 percent of the state’s beaches tested positive for unsafe levels of fecal bacteria for at least one day. Fecal contamination can come from urban runoff, sewage overflows and factory farms. READ MORE

New Arkansas AI Working Group Will Guide Implementation The state has created a new working group to study and assess artificial intelligence and make policy recommendations for the technology’s use. It will provide a report on its findings by December. READ MORE

New Haven, Conn., Notifies Hundreds That Personal Info Breached Officials are notifying more than 400 people that personal information could have been compromised during a cyber attack that led to the city’s Board of Education being defrauded out of nearly $6 million. READ MORE

Oregon Claim Backlog from Change Healthcare Hack Persists Central Oregon Pathology Consultants has a backlog of at least 18,000 claims and its billing system has been down since Feb. 21. U.S. Sen. Ron Wyden said the cyber attack’s aftermath is one of his most important issues. READ MORE

Pennsylvania Law Gives Data Breach Victims Free Monitoring Gov. Josh Shapiro on Friday signed the legislation that also requires notification to the state attorney general when more than 500 state residents are impacted by a breach. READ MORE

Public Investment Bolsters Colorado Push to Be Quantum Hub Colorado is closer to becoming the center of the nation’s quantum technology universe with the award of $40.5 million in federal money, which will also leverage $77 million in state commitments. READ MORE

Repairing Portland’s Burned Police Cars Will Cost $400K and Take 2 Years Seventeen vehicles were set on fire in May. The city’s fleet of police cars may not be fully replenished due to supply chain delays and a narrow ordering window. READ MORE

Stable but Slowing: State Revenues Start to Squeeze Policy Ambitions After years of rapid growth, states are starting to see revenue declines. Tax cuts red states enacted could become more costly in future years, while some blue states are debating tax increases. READ MORE

State Government Steps Up to Regulate AI, Filling Federal Void State lawmakers are working to define key terms and address risks as AI gets integrated into everyday life. California state Sen. Thomas Umberg talks about balancing regulation and innovation. READ MORE

States Need Stronger Identity Verification as Online Services Grow New research shows reliance on outdated identity verification methods. READ MORE

States Should Take the Lead in Stabilizing Disaster Insurance Homeowners are being squeezed out of affordable coverage. Sustainable intergovernmental partnerships with the insurance industry offer a solution. And there may be a role for state and local pension funds. READ MORE

States Work to Make Digital Services Accessible for All With a new requirement from the Department of Justice looming, state and local governments must make their digital services accessible for people with disabilities, but not all are starting from the same place. READ MORE

Supreme Court Allows Ban on Homeless People Sleeping Outside The Court found that there is no constitutional right to sleep outdoors or in cars. In dissent, liberal justices argued that sleep is a necessity that's effectively being  criminalized. READ MORE

Texas Seeks to Double Taxpayer-Backed Fund for Natural Gas Gov. Greg Abbott and Lt. Gov. Dan Patrick want $5 billion more to expand a low-interest loan program for natural gas power plant construction “as soon as possible.” READ MORE

The Biggest Challenge in Public Finance May Not Be Money Workforce shortages are affecting many areas of government, but public finance is particularly hard hit. Shortages of accountants are a severe problem, with too few candidates replacing aging employees. READ MORE

The State of GovTech in Justice and Public Safety From tools that give law enforcement better situational awareness to software that prepares formerly incarcerated individuals for the workforce, justice and public safety agencies can take advantage of many new innovations this year. This paper presents profiles of 12 startup companies that are using technologies like artificial intelligence and the cloud to help create safer communities. DOWNLOAD

This Fourth, Fireworks Sales Are Fizzling Out Fireworks consumption skyrocketed during the pandemic as public displays were canceled and Americans were stuck at home. Now the big pyrotechnic shows are back, and sales have plummeted to pre-pandemic levels. READ MORE

Vaccine Skepticism Presents Growing Threat to Public Health Hesitancy has spread from COVID-19 to traditional childhood immunizations. Parents who don't want their children vaccinated have increasing political support. READ MORE

Voters to Decide if California Can Borrow $20B for Climate and Education State lawmakers will likely place two bonds, one for climate change impacts and one for school repairs – each worth $10 billion – on the November ballot. The bonds will require a two-thirds approval from both chambers to reach the ballot. READ MORE

What Does AI Mean for Human-Centered Design? As governments increasingly put end users at the forefront of how they're developing digital services, we checked in with state CIOs to see where that effort intersects with the rise of artificial intelligence. READ MORE

What’s New in Digital Equity: Michigan Builds Digital Skills Plus, Massachusetts has added three members to its digital accessibility board, a federal resource on digital literacy aims to support community needs, and more. READ MORE

Why Construction Projects Always Cost More Than Estimated Poor planning, bad timing and political considerations all make overruns practically a given. READ MORE

Defending democracy against downside artificial intelligence risks

An insight item posted on the Internet-

Michaels, Robert A.  Defending democracy against downside artificial intelligence risks.  Response to Bengio et al.,  Science, 384(6698):842-5, 24 May 2024, eLetters, 

https://www.researchgate.net/publication/381698382_Michaels_Robert_A_Defending_democracy_against_downside_artificial_intelligence_risks_Science_eLetter_18_June_2024, online 18 June 2024.