ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

August 02, 2016

Simplifying the task of locating, screening and vetting an expert as well as an individual noting his or her availability to serve as a qualified expert


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Recent decisions by New York City Office of Administrative Tribunals and Hearings Administrative Law Judges


Recent decisions by New York City Office of Administrative Tribunals and Hearings Administrative Law Judges


Making false and misleading statements in an official report
OATH Index No. 1619/16

A correction officer [Officer] was charged with making false and misleading statements in a written report concerning force used by another correction officer against an inmate. Video showed that the other officer pulled the inmate’s arm through the food slot and hit the inmate at least once. The Officer’s report stated that there was an “altercation” and included the word “arm” to indicate where force was applied.

Administrative Law Judge John B. Spooner found that Officer’s report was deficient because it did not provide the detail required by the use-of-force directive  but that it was not intentionally false,. Judge Spooner dismissed the charge that Officer did not report that the other officer had struck the inmate because there was insufficient proof that Officer saw a blow.

The ALJ recommended Officer be suspended without pay for 5 days. 



Improperly indicating availability for working overtime
OATH Index No. 2741/15

OATH Administrative Law Judge Kevin F. Casey found that a carpenter improperly documented his overtime availability, did not respond to his supervisors’ phone calls regarding availability for overtime, failed to keep his supervisor’s informed about his progress on assignments, disobeyed instructions for filling out timesheets, and refused to comply with orders to refrain from adding extraneous comments to work tracking forms.

Judge Casey recommended that the carpenter be suspended without pay for 20 days.


__________________

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August 01, 2016

Attempting to avoid disciplinary action


Attempting to avoid disciplinary action
2016 NY Slip Op 05608, Appellate Division, Third Department

A New York State Trooper [ST] was allegedly involved in "an incident" in the course of performing official duties. The Internal Affairs Bureau of the Division of State Police [IBA] investigated the incident and recommended that "appropriate administrative action" be taken against ST. Two days after the IAB issued its report, but before any formal disciplinary charges were served on ST, ST submitted a notice of his "intent to retire."

ST subsequently applied for an identification card indicating that he was a State Police Retired Member.* The Superintendent rejected ST’s application for such an identification card after concluding that  ST "had engaged in serious misconduct and retired in order to avoid disciplinary action.” Accordingly, the Superintendent explained, ST had not retired in good standing

ST commenced a CPLR Article 78 proceeding, claiming that the Superintendent’s determination was arbitrary and capricious and without a rational basis because ST “was not facing any charges of serious misconduct at the time that he retired.”

The Appellate Division affirmed the Supreme Court’s dismissal of ST’s the petition, explaining that the court’s review of an Article 78 challenge to an administrative determination such as the one brought by ST was limited to whether the administrative determination was arbitrary and capricious, lacked a rational basis or was affected by an error of law. Further, said the Appellate Division, a court would not substitute its judgment for that of the appointing authority if that conclusion was reasonably supported by the record.

The court's decision notes that in denying ST’s request for the identification card, the Superintendent considered the IAB's report and ST’s personnel records. These records  indicted that [1] ST had been "the subject of recent counseling and below standard performance ratings" and [2] ST had been the subject of “six founded personnel complaints” during his tenure as a trooper and was "the subject of a pending personnel complaint” at the time of his retirement.

The Appellate Division said that the record established that although disciplinary charges had not been served upon ST prior to his submitting a notice that he intended to retire, the formal submission of his notice of an intention to retire "effectively suspended any internal disciplinary proceedings against him."**

Although ST denied that he engaged in misconduct or retired to avoid disciplinary action, the Appellate Division concluded that the record supported the Superintendent's determination that ST was not eligible for the requested identification card because he engaged in serious misconduct shortly before his retirement and did not retire in good standing.

Finding that the Superintendent’s determination was not arbitrary and capricious nor lacking in a rational basis, the Appellate Division declined to disturb it.

* The significance of the possession of such identification is that 18 USC §926C provides that "an individual who is a qualified retired law enforcement officer and who is carrying the identification required . . . may carry a concealed firearm." Executive Law §231, amended  effective January 20, 2015, provides that Superintendent of State Police "shall develop and distribute uniform identification cards to all sworn members of New York [S]tate [P]olice, upon such members' retirement in good standing" and the phrase "retirement in good standing" means that the State Police member "retired from his or her employment for reasons other than the avoidance of disciplinary charges."

** 4 NYCRR 5.3 Resignation, provides, in pertinent part, that when charges of incompetency or misconduct have been or are about to be filed against an employee of the State as the employer, the appointing authority may elect to disregard the resignation filed by the employee and to prosecute such charges and, in the event that the employee is found guilty of such charges and the penalty imposed is dismissed from the service, his or her termination "shall be recorded as a dismissal rather than as a resignation." Many local civil service commissions have adopted a similar rule. The decision in Blair v Horn, 2008 NY Slip Op 32581(U) [Not selected for publication in the Official Reports] suggests that a court could deem a retirement to be the equivalent of a resignation for the purposes of 4 NYCRR 5.3(b). See, also, Elmira CSD v Newcomb, 266 AD2d 622, motion for leave to appeal dismissed, 94 NY2d 899.

The decision is posted on the Internet at:

July 31, 2016

From the LawBlogs – Week ending July 16, 2016


From the LawBlogs – Week ending July 16, 2016

[Internet links highlighted in color]

Posted by Justia

Unlawful discrimination - Race
Riley v. Elkhart Cmty. Schs.U.S. Court of Appeals for the Seventh Circuit Docket: 15-3166

Elkhart Community Schools (ECS), has employed Riley, an AfricanAmerican female, as a teacher since 1980. She has an administrator’s license and is pursuing her doctorate in education. In 2010, she was named the ECS Teacher of the Year. From 2005-2013, Riley unsuccessfully applied for 12 different administrative positions with ECS. Riley filed an Equal Employment Opportunity Commission charge, claiming that race, sex, and age discrimination were the reasons that ECS had not promoted her. The EEOC sent Riley a right to sue letter. Riley filed suit, alleging race, sex, and age discrimination. The district court granted summary judgment for ECS on all counts, dismissing some claims on procedural grounds, and dismissing the remaining claims because Riley had failed to produce sufficient evidence. The Seventh Circuit affirmed. Of the positions for which action was not time-barred, one was given to an African-American woman; Riley did not apply for two; and one position was a lateral move so that Riley did not suffer an adverse employment action. Riley did not produce evidence of pretext with respect to other positions. ECS produced the list of factors that the screening committee considered in recommending candidates.


Unlawful discrimination – sexual orientation
Hively v. Ivy Tech Cmty. Coll. U.S. Court of Appeals for the Seventh Circuit Docket: 15-1720
Hively began teaching as a parttime adjunct professor at Ivy Tech in 2000. In 2013, she filed a charge with the Equal Employment Opportunity Commission (EEOC) claiming that she had been “discriminated against on the basis of sexual orientation” as she had been “blocked from fulltime [sic] employment without just cause.” After exhausting the procedural requirements in the EEOC, she filed suit, pro se, under the Civil Rights Act of 1964, 42 U.S.C. 2000e (Title VII). The district court dismissed. The Seventh Circuit affirmed. Title VII does not apply to claims of sexual orientation discrimination. The court relied on precedent, but acknowledged the EEOC’s criticism of its position and that “It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry.”


Constitutional rights of students – expectations of privacy
Ziegler v. Martin Cnty. Sch. Bd.,  U.S. Court of Appeals for the Eleventh Circuit Docket: 15-11441
Plaintiffs filed suit alleging that defendants violated students' constitutional rights when they detained the students for breathalyzer tests prior to entering their Junior/Senior Prom. The district court granted summary judgment for defendants. The court concluded that plaintiffs have not established an actual or reasonable expectation of privacy in the party bus, which they had abandoned once they had exited for the Prom; the bus driver had apparent authority to consent to search the party bus; and therefore, the search of the party bus did not violate plaintiffs' Fourth Amendment rights. The court also concluded that the initial waiting period for the breathalyzer mouthpieces and a trained individual to administer the breathalyzer tests was reasonable, because it was necessary for the testing; detaining a student after he or she was found to be alcohol free was not “reasonably related” to the reason for the detention “in the first place” of determining if the student passengers on the party bus had been drinking; the individual school defendants are entitled to qualified immunity because there was no binding clearly established law at the time; and claims against the remaining defendants have been abandoned or have no merit. The court rejected plaintiffs' remaining claims. Because plaintiffs have not established that they should succeed on any of their allegations concerning their Fourth, First, and Fourteenth Amendment claims, the court affirmed the judgment.

July 30, 2016

Selected reports issued by the Office of the State Comptroller during the week ending July 30, 2016



Selected reports issued by the Office of the State Comptroller during the week ending July 30, 2016
Source: Office of the State Comptroller

Click on text highlighted in color to access the entire report 

Audits of Local Governments and School Districts

Afton Central School District –Management of Fund Balance and Reserves (2016M-134)

Chateaugay Central School District – Leave Accruals (2016M-149)

Deer Park Union Free School District – Bank Reconciliations (2016M-166)

East Syracuse Minoa Central School District – Financial Software Access Rights (2016M-41)

Edwards-Knox Central School DistrictTransportation State Aid and Reserve Funds (2016M-151)

Falconer Central School District – Financial Management (2016M-146)

Fayetteville-Manlius Central School District – Claims Audit Process (2016M-196)

Granville Central School District – Fund Balance (2016M-114)

Herkimer-Fulton-Hamilton-Otsego Board of Cooperative Educational Services– Claims Audit Process (2016M-185)

Lancaster Central School District – Financial Condition (2016M-101)

Odessa-Montour Central School District – Financial Condition (2016M-71)

Union-Endicott Central School District – Financial Management (2016M-100)

Victor Central School District – Information Technology (2016M-117)

Town of Webb Union Free School District – Fund Balance (2016M-140)

William Floyd Union Free School District – Payroll (2016M-156)

Wyoming Central School District – Financial Management (2016M-67)

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, 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. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com