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

January 16, 2018

Administrative due process in disciplinary actions

Administrative due process in disciplinary actions
Jacobson v Blaise, 2018 NY Slip Op 00205, Appellate Division, Third Department

Although this litigation concerned student discipline at a State University of New York campus, a number procedural issues are addressed that are but rarely focused on in considering matters involving administrative due process. The following are among the issues considered:

1. Constitutional due process rights: The New York State Department of Education has said that the student disciplinary process outlined in Education Law §6444(5)(b) "... should not be read to extend to private colleges the constitutional due process rights that apply to public colleges."

2. Presumption of innocence: Throughout the proceedings an accused student enjoys "the right to a presumption that [he or she] is 'not responsible' until a finding of responsibility is made" (Education Law §6444[5][c][ii]).[1]

3. Discovery: Citing Matter of Weber v State Univ. of N.Y., Coll. at Cortland, 150 AD3d 1429, the Appellate Division said there is no "general constitutional right to discovery in . . . administrative proceedings."

4. Cross-examination: The Appellate Division explained that, in general, there is a limited right to cross-examine an adverse witness in an administrative proceeding [see Matter of Weber v State Univ. of N.Y., Coll. at Cortland, supra, at 1432], and citing Winnick v Manning, 460 F2d 545, the Appellate Division noted that "[t]he right to cross[-]examine witnesses generally has not been considered an essential requirement of due process in school disciplinary proceedings."[2]

5. Credibility: The court indicated that it found it troubling that the hearing panel "duty bound to determine who to believe when faced with competing versions of events," resolved this fundamental credibility issue "without having had the opportunity to directly gauge ... [a witnesses]  credibility" and citing Doe v University of Cincinnati, 872 F3d at 404, the Appellate Division opined that when hearsay testimony is involved "there is no doubt that allowing [the accused] to confront and question [the accusing party in] the truth-seeking process and reduced the likelihood of an erroneous deprivation."

The decision is posted on the Internet at:



[1] Another issue, not raised directly in this case, concerns the need of an employee charged with incompetency or  misconduct submitting an answer to §75 disciplinary charges.  

Should an accused fail to file an answer to the charges and specifications may the appointing authority impose the proposed penalty without holding a disciplinary hearing? In the opinion of the author of this summary, Harvey Randall, no. Although Section 75 requires the appointing officer to allow the accused employee at least eight days to file his or her answer to disciplinary charges in writing, this simply provides that, but does not mandate, the employee have at least eight days in which to prepare and submit an answer to the charges. As Section 75 is silent as to when the accused individual is required to file his or her answer, this suggests that the individual may remain mute -- i.e., decline to file an answer to the charges -- without jeopardizing any of his or her Section 75 rights to administrative due process. In other words, the failure of an employee to file a pre-hearing written answer to the disciplinary charges, appear at the disciplinary hearing or his or her even refusing to defend himself or herself against the charges at the hearing, does not excuse the employer of its duty to prove the employee’s incompetence or misconduct, and where the employee fails to appear at the hearing, by holding the hearing in absentia, before making a determination as to guilt and then, if the accused is found guilty, imposing an appropriate disciplinary sanction. 

[2] The opportunity to cross-examine an adverse witness is guaranteed by statute in situations where a public agency is obliged to hold an adjudicatory hearing (see State Administrative Procedure Act §§ 102 [3]; 306 [3]). A hearing is not required under the minimum requirements set by Education Law §6444(5)(b) (see Matter of Doe v Skidmore Coll., 152 AD3d at 934), rendering the protections of the State Administrative Procedure Act inapplicable (see Matter of Gruen v Chase, 215 AD2d at 481; Matter of Mary M. v Clark, 100 AD2d at 43).


January 12, 2018

Informal Opinions of the Attorney General



Informal Opinions of the Attorney General

Informal Opinion No. 2017-1  [December 13, 2017 
A change in the use of municipal parking spaces on parkland must be authorized by special legislation.


Informal Opinion No. 2017-2 citing Town Law §§176(11), 176-a, 176-a(1), 189-a(2)(d); Executive Law §23 [December 13, 2017]    
The positions of assistant fire chief of a joint fire district and county director of emergency services are compatible. [December 13, 2017]

January 11, 2018

Police officer terminated following being found guilty of downloading and possessing child pornography


Police officer terminated following being found guilty of  downloading and possessing child pornography
2017 NY Slip Op 09243, Appellate Division, First Department

A New York City police officer [Petitioner] was found guilty of accessing, downloading, and possessing child pornography. The penalty imposed: termination from his employment.  

The Appellate Division unanimously confirmed the determination that Petitioner was guilty of downloading and possessing child pornography as it was supported by substantial evidence and the Hearing Officer was entitled to consider Petitioner's demeanor during his testimony at the disciplinary hearing into account when assessing Petitioner's credibility

The court also noted that Petitioner's behavior during the execution of the search warrant at his home provided circumstantial evidence of his guilt as to both charges.

As to the possibility of considering mitigating circumstances with respect to the penalty imposed, dismissal from the position, the Appellate Division opined that notwithstanding Petitioner's tenure with the police department since 1999, the absence of any formal disciplinary record, and the fact that he had been awarded several medals, terminating Petitioner for downloading and possessing child pornography did not shock the court's sense of fairness.

Other cases of involving alleged involvement with pornography that resulted in disciplinary action being taken against the employee include:

Ghita v Department of Education of the City of New York, 2008 NY Slip Op 30706(U);
Phelps-Clifton Springs CSD v Nicot, Supreme Court, Ontario County, Index #103465;
Davis v DMNA, 291 A.D.2d 778, Schnaars v Copiague UFSD, 275 A.D.2d 462; and
Shurgin v Ambach, 56 NY2d 700

The decision in chief is posted on the Internet at:

January 10, 2018

Concluding that "reasonable minds might disagree" with the arbitrator's determination insufficient to justify a court's vacating or modifying an arbitration award

Concluding that "reasonable minds might disagree" with the arbitrator's determination insufficient to justify a court's vacating or modifying an arbitration award
Bolt v New York City Dept. of Educ., [No. 51 SSM 34]; Matter of Beatty v City of New York, et al., [No. 52 SSM 35 ]; and Matter of Williams v City of New York, et al.,  2018 NY Slip Op 00090, Court of Appeals [No. 53 SSM 36]

In Matter of Bolt v New York City Dept. of Education and Matter of Beatty v City of New York, and Matter of Williams v City of New York, the Court of Appeals reversed the Appellate Division's reversal of the Supreme Court's dismissal of the challenges to the penalty imposed in the course of disciplinary arbitration and reinstated the Supreme Court's determination dismissing of each of the three petitions challenging the arbitration award.

Citing City School Dist. of the City of N.Y. v McGraham, 17 NY3d 917, the Court of Appeals explained that the fact that "reasonable minds might disagree over what the proper penalty should have been does not provide a basis for vacating the arbitral award or refashioning the penalty," and in so doing found that the Appellate Division "exceeded its authority by reweighing the evidence and substituting its judgment for that of the hearing officer."

The decision is posted on the Internet at:

Municipal and school district audits released by State Comptroller DiNapoli on January 9, 2018



Municipal and school district audits released by State Comptroller DiNapoli on January 9, 2018

Click on text highlighted in color to access the full report
 

Aurora-Colden Fire District No. 6 – Financial Activity (Erie County)
Officials generally provide adequate oversight to ensure financial activity is properly recorded and district money is safeguarded. The district, however, did not solicit competition, or retain evidence of soliciting competition, for 97 purchases totaling $171,013 that were subject to its purchasing policy.

Columbia-Greene Community College – Information Technology (2017M-213)
The board has not adopted comprehensive written procedures for managing system access. The college did not adopt a breach notification policy and has never tested its disaster recovery plan; therefore, information may not be adequately safeguarded.

Village of Croton-on-Hudson – Payroll (Westchester County)
Auditors found that timesheets did not have employees’ signatures or show actual hours worked. Payroll records for the Department of Public Works revealed five employees were overpaid a total of $902. In addition, the village under-budgeted for overtime in the 2016-17 fiscal year by $284,608 or 43 percent.

Town of Dannemora – Part-Town Activities (Clinton County)
The town’s accounting records did not include a part-town (PT) general fund. General fund PT revenues and expenditures were not properly allocated. As a result, the town unnecessarily taxed town residents residing within the village which subsequently lowered tax rates for town residents living outside of the village.

East Islip Public Library – Cash Receipts (Suffolk County)
Cash was not always properly collected or deposited in a timely manner. Library staff did not issue adequate receipts for all collections and did not properly account for attraction tickets purchased in bulk and sold at a discount to cardholders. The library’s account clerk performed incompatible financial duties.

County of Franklin Solid Waste Management Authority – Solid Waste and Recycling Charges and Host Community Fees (2016M-418)
Officials had not established adequate procedures over solid waste and recycling charges to ensure customers were accurately charged and the corresponding amounts collected were deposited in a timely manner. Auditors found customers were charged varying rates for disposal of the same type of waste.

Town of Greece – Information Technology (Monroe County)
Town officials did not adopt a comprehensive online banking policy or adequately segregate online banking duties. In addition, the board did not adopt a comprehensive disaster recovery plan. As a result, the town has an increased risk that its IT data and components may be lost or misused and that the town will be unable to resume critical operations if a system failure occurs.

Johnsonville Fire District – Claims Processing (Rensselaer County)
Except for minor exceptions which we discussed with district officials, all of the claims reviewed by auditors were supported by sufficient documentation and for appropriate purposes.

Town of Nanticoke – Financial Condition Management (Broome County)
The town board did not effectively manage fund balance. From 2014 through 2016, budgeted appropriations exceeded expenditures, resulting in the accumulation of excess fund balance in the general fund. As of Dec.31, 2016, the fund balance in the general fund had increased 75 percent, to over $482,000, from approximately $275,000 in 2014. The board has not developed a fund balance policy or comprehensive multiyear financial and capital plans specifying the town’s objectives and goals for using the accumulated funds.

Town of Marbletown – Financial and Capital Planning (Ulster County)
The board does not have a comprehensive multiyear financial and capital plan or reserve policy to address the town’s operational and capital needs, including the replacement of vehicles and equipment, infrastructure or the aging highway garage. The board also has not adopted an adequate fund balance policy, which resulted in the town accumulating excessive fund balance in the general fund.

Municipal Parking Structures (2017MS-3)
The local governments reviewed have varying processes in place to inspect and monitor their parking structures. Although available reports indicate that the structures do not have any urgent repair needs, most units could improve their internal controls over parking structures and elevators. For example, the lack of periodic inspections has resulted in three Buffalo, two White Plains and possibly two Ithaca parking structures not having inspections conducted by structural engineers within the last 10 years.

City of Sherrill – Payroll and Community Activity Center Cash Receipts (Oneida County)
City officials accurately paid employees’ salaries and wages. However, officials need to improve controls over payroll preparation and processing. There is no independent certification of payroll prior to the distribution of payroll checks. In addition, city officials have not formalized policies and procedures over the community activity center’s cash collections.

Walden Fire District #2 – Purchasing (Erie County)
District officials did not obtain quotes in accordance with the district’s procurement policy during the audit period for 27 purchases totaling $77,044.

West Niles Fire Company – Financial Activities (Cayuga County)
The board has not established written policies and procedures for cash receipts, cash disbursements and fundraising activities or adopted a code of ethics to guide officers and members regarding expected standards of conduct, as required. Additionally, the bylaws provide limited guidance on the board’s responsibilities and the company treasurer’s duties.

Aloma D. Johnson Charter School – Leave Accruals (Erie County)
School officials did not maintain accurate, complete and supported leave accrual and use records. Auditors compared the 2015-16 leave balances for all 62 employees to the 2016-17 beginning leave balances recorded in the employee leave records and found that 12 of these employees’ leave carryover amounts were overstated by 47 days.

Center Moriches Union Free School District – Medicaid Reimbursements (Suffolk County)
The district did not claim $117,670 in costs for individual education plan-related services provided to Medicaid-eligible students because it did not obtain prescriptions, parental consent was not obtained or service providers did not meet certain qualifications for reimbursement or did not provide the proper documentation for claiming reimbursement.

Colton-Pierrepont Central School District – Financial Duties (St. Lawrence County)
Salaries and wages were accurately calculated and paid. However, the district clerk’s duties are not adequately segregated because she processes all non-payroll and payroll disbursements with limited oversight.

Kendall Central School District – Capital Project (Orleans County)
Officials did not present a district-wide capital improvement project to the public in a transparent manner. Because the project’s actual cost ended up being below the maximum amount authorized by the voters, officials had an opportunity to spend significantly less than anticipated. However, district officials decided to complete additional work and expand the project scope without informing the voters.

Madison-Oneida Board of Cooperative Educational Services (2017M-239)
Employee salaries and wages were accurately paid. However, payroll access rights were not adequately restricted to employees based on job duties. In addition, duties related to the payroll certification process were not properly segregated.

South Country Central School District – Information Technology Inventory (Suffolk County)
The district does not have a complete and accurate inventory of information technology (IT) equipment. District officials have not adequately accounted for IT assets and they have no assurance that the assets have been adequately protected from loss, theft or misuse. Further, in the event of a disaster, district officials would be unable to provide its insurance company with an accurate list of IT assets to replace.

Ticonderoga Central School District – Transportation State Aid and Extra-Classroom Activity Funds (Essex County)
The district did not apply for all transportation state aid for new bus acquisitions. As a result, the district was in danger of potentially losing $194,852 in state aid. In addition, club collections were not supported by adequate documentation and were not always deposited in the amounts received.

Wellsville Central School District – Financial Management (Allegany County)
The district’s unrestricted fund balance has exceeded the statutory limit for the past three fiscal years by amounts ranging from $1.5 million to nearly $3 million. District officials have also allowed the unemployment reserve balance to accumulate to an excessive level and have not used funds from the retirement contribution reserve as budgeted.

Westmoreland Central School District – State Transportation Aid (Oneida County)
District officials did not apply for state transportation aid within one year of purchase for 18 buses purchased during our audit period. During the audit, the district business manager prepared and submitted state aid forms to the New York State Department of Education for the 18 buses, and the district should receive approximately $1.3 million in transportation aid for these buses through 2021-22.

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.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
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