Twenty-six New York State school districts designated as being in "fiscal stress"

New York StateComptroller Thomas P. DiNapoli reports 26 school districts in New York State are in "fiscal stress"

Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in color

Twenty-six school districts have been designated as fiscally stressed under New York State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System.* Although the same number of districts were designated in fiscal stress last year, many of the entities in this year’s list have changed. Only 12 were designated as stressed in both 2018 and 2017.

Using financial indicators that include year-end fund balance, cash position, short-term borrowing and patterns of operating deficits, DiNapoli’s monitoring system creates an overall fiscal stress score which drives the classification.

“Despite the ongoing financial pressures facing school districts, our fiscal stress monitoring system has revealed encouraging results in several communities,” said DiNapoli. “However, school boards and superintendents must remain cautious. Today’s budget decisions can have long-lasting implications and can quickly move a district into fiscal stress.”

This year, five school districts are designated in “significant fiscal stress” and the remaining 21 as “susceptible to fiscal stress.” The scores are based on the evaluation of 672 school districts with fiscal years ending on June 30, 2018.

The five school districts that were classified in “significant stress” are Eldred (Sullivan County); New Suffolk (Suffolk); Norwich (Chenango); Schenevus (Otsego) and Wyandanch (Suffolk).

A report released by DiNapoli today in conjunction with the fiscal stress scores showed the regions of Central New York, Long Island and the Southern Tier as those having comparatively high percentages of districts in fiscal stress.

The scores are based on financial information submitted as part of each district’s ST-3 financial report filed with the State Education Department as of Dec. 28, 2018.

* N.B. This announcement does not include scores for the dependent school districts in the “Big Four” cities of Buffalo, Rochester, Syracuse and Yonkers. Information for these districts will be incorporated into the scoring for their respective cities later this year. The monitoring system does not score New York City.

For a list of school districts designated in fiscal stress, visit:

https://www.osc.state.ny.us/localgov/fiscalmonitoring/schools/pdf/2018/stress-list.pdf

For the complete list of school district fiscal stress scores, visit:

https://www.osc.state.ny.us/localgov/fiscalmonitoring/index.htm

For a copy of the fiscal stress report, visit:

https://www.osc.state.ny.us/localgov/fiscalmonitoring/pdf/common-themes-for-school-year-2017-18.pdf

Mitigation of the disciplinary penalty to be imposed found warranted under the circumstances

Mitigation of the disciplinary penalty to be imposed found warranted under the circumstances

OATH Index No. 2137/18

A New York City correction officer was charged with using excessive force against an inmate and submitting a false report.

A video of the incident and respondent’s testimony indicated that a newly-admitted inmate resisted processing. When the correction officer attempted to guide the inmate to a table, the inmate swatted the correction officer's hand away and attempted to spit in the correction officer's face. The correction officer admitted that his hand was briefly was on the inmate’s neck as he tried to push the inmate away.

OATH Administrative Law Judge Noel R. Garcia sustained the excessive force charge but he recommended dismissal the false report charge. Judge Garcia found the correction officer’s written statement was consistent with the video evidence.

The ALJ recommended that correction officer be suspended for thirty-five days without pay, finding mitigation of the penalty was warranted based on the fact that the use of force was set in motion by the inmate’s belligerence, that the inmate did not suffer any injury, consideration of the correction officer’s long service record, and that the correction officer accepted responsibility for his actions.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-2137.pdf

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Click here to Read a FREE excerpt from A Reasonable Disciplinary Penalty Under the Circumstances, a guide to disciplinary penalties imposed on officers and employees of New York State and its political subdivisions.

Documents containing information used to evaluate the performance of specified public employees are not subject to disclosure pursuant to a Freedom of Information request

Documents containing information used to evaluate the performance of specified public employees are not subject to disclosure pursuant to a Freedom of Information request

Luongo v Records Access Appeals Officer, 2019 NY Slip Op 00344, Appellate Division, First Department

The Legal Aid Society, New York, appealed a Supreme Court decision denying its petition to compel the New York City Police Department's Records Access Appeals Officer to disclose documents it had requested pursuant to the Freedom of Information Law [FOIL]* and dismissing the proceeding Legal Aid had brought pursuant to CPLR Article 78. The Appellate Division unanimously affirmed the lower courts ruling.

The Appellate Division explained that the New York City Police Department documents at issue contain information used to evaluate a police officer's performance and included such items as the disposition of disciplinary charges brought against the officer.

Further, said the Appellate Division, the records, which contain factual details regarding misconduct allegations and punishments imposed on officers, could contain "material ripe for degrading, embarrassing, harassing or impeaching the integrity of [the] officer[s]," citing New York Civil Liberties Union v New York City Police Department, 2018 NY Slip Op 0842. The court pointed out that the records sought were exempt from disclosure pursuant to Civil Rights Law §50-a.

§50-a.1, which applies to the personnel records of police officers, firefighters and correction officers, provides as follows:

1. All personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency or department of the state or any political subdivision thereof including authorities or agencies maintaining police forces of individuals defined as police officers in section 1.20 of the criminal procedure law and such personnel records under the control of a sheriff's department or a department of correction of individuals employed as correction officers and such personnel records under the control of a paid fire department or force of individuals employed as firefighters or firefighter/paramedics and such personnel records under the control of the department of corrections and community supervision for individuals defined as peace officers pursuant to subdivisions twenty-three and twenty-three-a of section 2.10 of the criminal procedure law and such personnel records under the control of a probation department for individuals defined as peace officers pursuant to subdivision twenty-four of section 2.10 of the criminal procedure law shall be considered confidential and not subject to inspection or review without the express written consent of such police officer, firefighter, firefighter/paramedic, correction officer or peace officer within the department of corrections and community supervision or probation department except as may be mandated by lawful court order.

However, it should noted that subdivision 4 of §50.1 of the Civil Rights Law provides that "The provisions of this section shall not apply to any district attorney or his assistants,** the attorney general or his deputies or assistants, a county attorney or his deputies or assistants, a corporation counsel or his deputies or assistants, a town attorney or his deputies or assistants, a village attorney or his deputies or assistants, a grand jury, or any agency of government which requires the records described in subdivision one, in the furtherance of their official functions."

* Article 6 of the New York State Public Officers Law.

**  §22 of the General Construction Law provides as follows: Gender. Whenever words of the masculine or feminine gender  appear in any law, rule or regulation, unless the sense of the sentence  indicates otherwise, they shall be deemed to refer to both male or  female persons.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00344.htm

Applying the Doctrine of Collateral Estoppel

Applying the Doctrine of Collateral Estoppel

Roth v. County of Nassau, United States Court of Appeals, Second Circuit, Index#18-966-cv, Summary order

Rulings by summary order do not have precedential effect.

Craig Roth appealed the federal district court's granting summary judgment dismissing his claims that Nassau County had subjected him to unlawful discrimination after finding that Roth was collaterally estopped from asserting his discrimination claims under the Americans with Disabilities Act (ADA) and the New York State Human Rights Law (NYSHRL).

The Second Circuit Circuit Court of Appeals said that it:

1. reviews a district court’s grant of summary judgment de novo and that the judgment may be affirmed on any ground fairly supported by the record;

2. in reviewing a district court’s application of the doctrine of collateral estoppel de novo, the Second Circuit accepts "all factual findings of the district court unless clearly erroneous; and

3. under New York law, collateral estoppel a. “may be invoked to preclude a party from raising an issue (1) identical to an issue already decided (2) in a previous proceeding in which that party had a full and fair opportunity to litigate”; and b. “the issue that was raised previously must be decisive of the present action.”

Roth conceded that he is collaterally estopped from arguing that he could perform the “essential functions” of a police officer’s job but argued that he was not collaterally estopped from arguing that he could perform the essential functions of the job “with or without reasonable accommodation.” Roth claimed that the state court’s Article 78 order did not adequately address the issue of accommodation, and that he is not barred from demonstrating that he was able to perform the essential duties of the police officer job with or without such accommodation.*

The Second Circuit held that the District Court correctly concluded that Roth’s ADA and NYSHRL claims are precluded under the doctrine of collateral estoppel explaining that Roth’s complaint in this appeal seeks to relitigate issues that were fully and fairly decided during his Article 78 proceeding in New York Supreme Court as his Verified Petition before the New York Supreme Court specifically asserted that his disqualification violated Section 296(1)(a) of the NYSHRL and “may be actionable pursuant to the American’s [sic] with Disabilities Act as that Act protects individuals from employment discrimination based upon an actual or perceived disability.”

Roth's memorandum and reply memorandum in support of his Verified Petition filed with the State Supreme Court claimed to have “established a prima facie case of discrimination" that the County medically disqualified him for the position of police officer because of his medical disability.” In order to demonstrate a “disability” within the meaning of the NYSHRL, said the court, a plaintiff must show that he or she was able to perform the essential functions of the job with or without a reasonable accommodation. Nassau County's medical experts’ medical conclusions was that there was a significant risk that Roth could become mentally or physically incapacitated during bursts of severe exertion, including in pursuing suspects, using force, and rescuing individuals.

Considering the "particular nature of those functions" and Roth’s conceded failure to request any accommodation, the Circuit Court ruled that "absent a clear indication to the contrary the New York Supreme Court reasonably concluded that there was 'substantial evidence' to support a determination that it would have been impossible to provide any reasonable accommodation for those particular essential functions" of a police officer

In the words of the Second Circuit, "Roth’s discrimination claims fail because he is precluded under the doctrine of collateral estoppel from arguing that he was able to perform the essential functions of a police officer with or without a reasonable accommodation."

* Both the NYSHRL and the ADArequire a plaintiff to demonstrate as an element of his or her claim that he or she was able to perform the essential duties of his or her job with or without a reasonable accommodation.

The decision is posted on the Internet at:

https://www.leagle.com/decision/infco20190117078

Guidelines for confirming an award issued pursuant to compulsory interest arbitration

Guidelines for confirming an award issued pursuant to compulsory interest arbitration

Matter of Walker (Read), 2019 NY Slip Op 00340, Appellate Division, Third Department

The collective bargaining agreement [CBA] for uniformed firefighters [Firefighters] employed by the City of Plattsburgh [Plattsburgh], with the exception of the Fire Chief and the Assistant Fire Chief, expired. Since the expiration of that CBA the Firefighters and Plattsburgh had participated in compulsory interest arbitration three times to resolve disputes that arose during their negotiations of successor agreements as provided by Civil Service Law §209[4]).

In 2016 an arbitration award covering the 2012-2013 contract period granted the firefighters a 2% wage increase for 2012 and 2013, carried through 2017, and directed that all retroactive payments be disbursed within 45 days of the award.*  

Plattsburgh, however, failed to implement the mandated wage increases and make the required retroactive payments whereupon Firefighters commenced a CPLR §75.10 proceeding seeking to confirm the arbitration award. Plattsburgh, on the other hand, cross-moved to vacate the award as being "violative of public policy and exceeding the scope of the panel's authority."

Supreme Court granted the Firefighters application to confirm the award and denied Plattsburgh's cross motion, prompting Plattsburgh's appealing the Supreme Court's decision.

As a general policy of supporting and encouraging the resolution of disputes through arbitration (see Matter of City of Oswego [Oswego City Firefighters Assn., Local 2707], 21 NY3d 880, judicial interference with an arbitration award is confined to narrowly circumscribed circumstances. Courts may vacate an arbitration award if the arbitrator exceeded his or her authority by issuing an award that violates a strong public policy, is irrational or clearly exceeds a specific, enumerated limitation on the arbitrator's power (see Matter of Shenendehowa Cent. Sch. Dist. Bd. of Educ. [Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO, Local 864], 20 NY3d 1026.**

Addressing Plattsburgh's argument that the arbitration award should be vacated on the basis that it violated public policy, the court said that in granting relief on such grounds "courts must be able to examine [the] arbitration ...  award on its face, without engaging in extended fact-finding or legal analysis, and conclude that public policy precludes its enforcement." In other words, said the Appellate Division, "judicial inquiry is constrained to determining whether 'the actual result of the arbitration process' — without evaluation of the underlying rationale — on its face, and 'because of its reach, . . . violates an explicit law of this [s]tate'."

Plattsburgh contended that the enactment of Chapter 67 of the Laws of 2013 demonstrated that a strong state public policy exists "to control and stabilize the [general] fund balance and real property tax levies of 'fiscally eligible municipalities' who are experiencing ongoing fiscal distress," arguing that the award of a 2% salary increase for 2012 and 2013, carried through 2017, would deepen Plattsburgh's fiscal crisis by requiring it to completely deplete its general fund balance and raise taxes over the tax cap.

The Appellate Division said that Plattsburgh's reliance on such an argument was misplaced, explaining that, as  relevant here, Chapter 67 established a permanent financial restructuring for local governments to "provide a meaningful, substantive avenue for fiscally eligible municipalities to reform and restructure and provide public services in a cost-effective manner," while also setting "new parameters for arbitration awards" involving fiscally eligible municipalities.

Where, as here, the public interest arbitration panel determines that the public employer is a fiscally eligible municipality, the panel must, "first and foremost, consider [the public employer's] ability to pay by assigning [that criterion] a weight of [70%]", while assigning an aggregate weight of 30% to the remaining statutory criteria set out in Civil Service Law §209 subdivisions [4][c][v] and [6][e].

In the view of the Appellate Division, the amendments relied upon by Plattsburgh did not a "reveal strong and well-defined policy considerations prohibiting, in an absolute sense, the relief awarded here — that is, the 2% salary increases and the retroactive payments flowing therefrom" but rather "clearly evince a general policy recognizing the importance of considering, during the arbitration process, the fiscal status of fiscally-distressed municipalities" and the law requires only that, "when resolving a dispute and fashioning an award, the public interest arbitration panel accord a weight of 70% to a fiscally eligible municipality's ability to pay."

Concluding that the arbitration panel had complied with its mandate and the required 70% weighting factor, the Appellate Division said it could not reweigh the statutory factors and substitute its judgment for that of the arbitration panel nor could it engage in the extended fact-finding or legal analysis required by Plattsburgh's argument.

Finding that the arbitration award was not prohibited by a strong and well-defined policy embodied in law, the Appellate Division concluded that there was no basis upon which to invoke the public policy exception to vacate the arbitration award. Further, ruled the court, there was no merit to Plattsburgh's argument that the arbitration award mandated legislative action and in its absence, the panel exceeded the scope of its authority.

* Before issuing this arbitration award, the panel offered the parties an opportunity to consent to an alternate proposed opinion and award granting the panel the authority to issue a determination addressing more than a two-year period and, if agreed to, providing for, among other things, a 1.5% wage increase for 2012, 2013 and 2014 and a 1.75% wage increase for 2015, 2016 and 2017. However, the Common Council of the City of Plattsburgh unanimously rejected this alternate proposed opinion and award. 

** Citing Matter of Kowaleski [New York State Dept. of Correctional Servs.], 16 NY3d 85, the Appellate Division observed that "Even where an arbitrator has made an error of law or fact, courts generally may not disturb the arbitrator's decision".

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00340.htm