New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending May 13, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending May 13, 2017 

Source: Office of the State Comptroller

Click on text highlighted in color  to access the full report

Bombay Clerk Sentenced for Pocketing Justice Court Fees

A North Country court clerk was sentenced for stealing more than $5,680 from Bombay Justice Court while the other court clerk—his mother—was on sick leave, according to State Comptroller Thomas P. DiNapoli.

New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the:     

                    

City of Long Beach, – Budget Review;

Town of Minisink, – Payroll and Fire Protection and Ambulance Contracts;

Village of Tannersville – Water Department Operations; and the

Town of Wales – Financial Management

A guide to cybersecurity

A guide to cybersecurity

Source: InvestmentNews

InvestmentNews reports that "With more data aggregated and housed in the cloud," the threat of a cyber-crime compromising an organization firm is greater than ever. Its "white paper sources 'new data from the 2017 InvestmentNews Adviser Technology Study' that assesses the state of cybersecurity," while also offering practical tips for protecting an organization's operations  and its data.

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Applying the Pell Doctrine in a disciplinary action

Applying the Pell Doctrine in a disciplinary action

Sullivan v County of Rockland, 2017 NY Slip Op 03519, Appellate Division, Second Department

Disciplinary penalties imposed on public employees in New York State must meet the test set out in Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 222, generally referred to as the "Pell Doctrine."  Essentially the Pell Doctrine instructs that any permissible disciplinary penalty may be imposed on an employee found guilty of one or more disciplinary charges and specifications by an appointing authority or arbitrator unless the court finds that, considering the circumstances underlying the disciplinary action, such a penalty is "shocking to one's sense of fairness."

The genesis of this litigation was a disciplinary action involving an individual [Employee] who had served with the Rockland County Department of Social Services [DSS] since 1990. The appointing authority initiated disciplinary action against Employee alleging of gross misconduct — "falsification of business records." The Charge served on Employee set out two specifications alleging Employee had made false entries in DSS's computer system.

Following a disciplinary hearing, a hearing officer found that DSS had submitted substantial evidence in support of both specifications set out in the Charge and recommended that Employee be terminated from his position.

The appointing authority adopted the hearing officer's findings and recommendation as to the penalty to be imposed and terminated Employee.

Employee challenged his dismissal and the Appellate Division subsequently determined that  "specification number 2 was not supported by substantial evidence." The court granted Employee's Article 78 petition to the extent of annulling the appointing officer's determination that found Employee guilty of specification number 2, vacated the penalty imposed, dismissal, but otherwise confirmed the determination. The court then remitted the matter to the appointing authority for a determination of the appropriate penalty to be imposed in view of the finding that Employee was guilty of specification number 1.*

The appointing authority issued a new determination based solely on Employee's having been found guilty of specification number 1 and, again, imposing the penalty of termination of employment. Employee again filed an Article 78 petition seeking judicial review the penalty imposed after the appointing authority reconsideration of the matter.

The Supreme Court granted Employee's petition and remitted the matter to the appointing authority for the imposition of a lesser penalty. The appointing authority appealed the Supreme Court's ruling.

Applying the Pell Doctrine, the Appellate Division said that "[a]n administrative penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law." The court explained that "[a] result is shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subject to it that it is disproportionate to the misconduct, incompetence, failure, or turpitude of the individual, or the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals."

In this instance the Appellate Division found that the penalty imposed was so grave in its impact on the Employee that it was disproportionate to the misconduct, or the risk of harm to DSS or the public.

Thus, under the circumstances of this case, the Appellate Division ruled that the penalty of termination of employment for "this single incident of misconduct" was so disproportionate to the offense as to be shocking to one's sense of fairness, and constituted an abuse of discretion as a matter of law.

As Employee's actions "were not so egregious or of such moral turpitude as to justify termination of his employment in light of his previously unblemished record," the Appellate Division concluded that Supreme Court properly granted Employee's Article 78 petition and remitted the matter to the appointing authority for the imposition of a lesser penalty.

* See Matter of Sullivan v County of Rockland, 121 AD3d 700

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_03519.htm

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Challenging Adverse Personnel Decisions - A 765 page electronic book [e-book] focusing on penalties imposed on public employees of New York State and its political subdivisions found guilty of misconduct or incompetence by hearing officers and arbitrators and the judicial review of such penalties. More information is available on the Internet at http://nypplarchives.blogspot.com.

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Data Privacy and Cybersecurity Forum to be held in New York City May 23-24, 2017

Data Privacy and Cybersecurity Forum to be held in New York City May 23-24, 2017

Source: Today's General Counsel Institute

Today's General Counsel Institute reports that the need for privacy and cybersecurity compliance continues to increase as organizations become more and more digitally driven, data breaches become more publicized and regulations continue to increase. C-suite executives, boards of directors, employees and third party providers all have data security obligations. Always knowing how to proceed can be complicated and confusing.

The Institute's Data Privacy and Cybersecurity Forum is designed to help cut through the maze of issues involved in protecting an organization from cyber attack. The program offers an interactive format and roundtable sessions addressing "data privacy and cybersecurity issues and will also provide actual solutions to real world issues."  

This Forum will be held at the New York City Bar Association, 42 West 44th Street, New York, New York, 10036, May 23-24, 2017.

N.B. Today's General Counsel Institute is offering a Complimentary Registration to the first 25 NYPPL readers registering to attend the Forum and who enter the "promo code" NYPPL100 in the appropriate box on the registration form posted on the Internet at: 
http://www.todaysgeneralcounsel.com/institute/cyber-new-york/register/

Data Privacy and Cybersecurity Forums will be held at other locations throughout the United States in the future. Additional information is posted on the Internet at:
http://www.todaysgeneralcounsel.com/institute/cyber-new-york/

CPLR Article 86, the Equal Access to Justice Act, applies in cases brought against the State for alleged unlawful discrimination within the meaning of the Human Rights Law

CPLR Article 86, the Equal Access to Justice Act, applies in cases brought against the State for alleged unlawful discrimination within the meaning of the Human Rights Law

Kimmel v State of New York, 2017 NY Slip Op 03689, Court of Appeals

Under the Equal Access to Justice Act [EAJA; CPLR Article 86] under certain circumstances a court may award reasonable attorneys' fees and costs to a prevailing plaintiff in a suit against the State.

Does the EAJA permits the award of attorneys' fees and costs to a prevailing plaintiff in an action against the State under the Human Rights Law for sex discrimination in employment by a state agency. The Court of Appeals concluded that it does.

A New York State Trooper [Plaintiff], sued the State of New York and the New York State Division of State Police [State] alleging that she was subjected to discrimination, sexual harassment, and retaliation based on her sex at work and thus suffered a hostile work environment. She sought back pay, front pay, benefits, compensatory damages, reasonable attorneys' fees, and an injunction restraining the State from continuing its discriminatory practices.

According to her complaint, and supporting exhibits, her coworkers posted lewd cartoons portraying Plaintiff naked and engaged in various sexual acts, suggested that she perform sexual acts on them and other coworkers and engaged in other harassing and hostile conduct, including a physical assault that required Plaintiff to seek emergency room treatment and doctor-ordered work leave. The Court of Appeals' decision states that "she made repeated complaints but the harassment continued. Neither her supervisors nor her Troop Commanders put a stop to her coworkers' offensive behavior. Plaintiff repeatedly sought legal assistance, but had difficulty finding an attorney to take her case."

The State, in its defense, denied "that the agency had engaged in any wrongdoing whatsoever," and asserted as a defense that "[a]ll actions taken by the State were official acts taken in the exercise of their discretion." Eventually, based on its continued defiance of court orders, the Appellate Division struck the State's answers.*

Ultimately the case went to trial. Plaintiff prevailed and received a jury award of over $700,000. The jury award included past earnings of $160,000; past lost retirement earnings of $60,000; future lost retirement earnings of $491,000; and past pain and suffering of $87,000.

When Plaintiff's current and former counsel sought attorneys' fees and costs pursuant to the EAJA, Supreme Court held that attorneys' fees and costs could not be awarded because the EAJA did not apply "where a plaintiff has recovered compensatory damages for tortious acts of the State and its employees."** The Appellate Division,  in a split decision, reversed the lower court's ruling, holding that a plain reading of the EAJA and its definition of the term "action" compelled the conclusion that the "EAJA applies to this case."

Supreme Court subsequently entered a final judgment awarding Plaintiff and intervenor attorneys' fees and expenses and the State appealed.

After an extensive exploration of the legislative history and applying the plain language, and remedial nature of the EAJA, the Court of Appeals concluded that "this civil action is eligible for an award of attorneys' fees," holding that "for cases commenced before the effective date of the 2015 amendment to the Human Rights Law, the EAJA permits the award of attorneys' fees and costs to a prevailing plaintiff in an action against the State under the Human Rights Law for sex discrimination in employment by a state agency."

In the words of the court: "The plain language of the statute, which is supported by the legislative history, compels the conclusion that "any civil action" encompasses cases brought under the Human Rights Law, and noted that "[i]t is not for this Court to engraft limitations onto the plain language of the statute."

Citing Orens v Novello, 99 NY2d 180, the Court of Appeals stated that "[t]his Court should be very cautious in interpreting statutes based on what it views as a better choice of words when confronted with an explicit choice made by the Legislature," noting its agreement with the Appellate Division that "we may 'not legislate under the guise of interpretation and, if application of the EAJA to this action is an unintended result of the plain language of the statute, then that is a consequence best left to the Legislature to evaluate and, if necessary, resolve.'"

Accordingly, the Court of Appeals ruled that the order of the Appellate Division insofar as brought up for review, should be affirmed, with costs.

* See286 AD2d 881

** A footnote in the opinion, Footnote 5 , states, in pertinent part, "claims brought under the Human Rights Law are not tort claims," citing Margerum v City of Buffalo, 24 NY3d 721, in which the court opined: "no notice of claim requirement applies because "(h)uman rights claims are not tort actions under General Municipal Law §50-e and are not personal injury, wrongful death, or damage to personal property claims under General Municipal Law §50-i."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_03689.htm