Selected cases noted in the press during the week ending April 6, 2019

A federal judge has ruled there is no coverage under a homeowners' insurance policy for a minor's allegations of sexual misconduct against a female teacher.

The item is posted on the Internet at:

https://stlrecord.com/stories/512394901-judge-rules-safeco-insurance-not-responsible-for-coverage-of-teacher-s-sexual-misconduct-allegations?utm_source=St.+Louis+Record&utm_campaign=e040c38a45-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_226e302527-e040c38a45-73836803

An environmental group has been granted the right to act on behalf of four of its members in an action against the owners of a coal-fired power plant on the Mississippi River. 

The item is posted on the Internet at:

https://stlrecord.com/stories/512359052-environmental-group-granted-standing-in-action-against-power-plant-owner?utm_source=St.+Louis+Record&utm_campaign=e040c38a45-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_226e302527-e040c38a45-73836803

Public Schools employee who alleged he was paid less than his female counterparts has lost his case in federal court.

The item is posted on the Internet at:

https://stlrecord.com/stories/512394851-jefferson-city-public-schools-employee-loses-equal-pay-claim-case?utm_source=St.+Louis+Record&utm_campaign=e040c38a45-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_226e302527-e040c38a45-73836803

Immigration attorneys are available to help immigrants across state

Governor Cuomo has announced that 19 full-time attorneys, working in conjunction with Office for New Americans Opportunity Centers, have been selected to provide free legal services to immigrants in every region of New York State.

The New York State Office for New Americans, founded six years ago, is the nation's first statutorily created immigrant services office. ONA has Opportunity Centers across the State that are hosted in community-based organizations that deliver a host of services and support, including legal services, to New York's new American communities. These sites are the focal point for communities to embrace immigrants by providing them with the tools necessary to thrive and contribute to our state.

In 2017, Governor Cuomo launched the Liberty Defense Project - the first-in-the-nation, state-led public-private project - to assist immigrants regardless of status in obtaining access to legal services. The project is administered by ONA and run in partnership with law firms, legal associations, advocacy organizations, major colleges and universities and bar associations.

The LDP provides:

Free legal consultations and screenings for immigrants throughout New York State;

Direct representation to immigrants in deportation proceedings as well as other cases;

Assistance with other immigration legal services, particularly for complex matters; and

Know Your Rights training for immigrants and the community at large.

 

The attorneys will located as follows:

• Capital Region - Women's Bar Association Legal Project, Inc. (2 attorneys)
• North Country - Frank H. Hiscock Legal Aid Society (2 attorneys)
• Mohawk Valley - Frank H. Hiscock Legal Aid Society (2 attorneys)
• Central New York - Frank H. Hiscock Legal Aid Society (2 attorneys)
• Southern Tier - Journey's End Refugee Services (2 attorneys)
• Finger Lakes - Journey's End Refugee Services (2 attorneys)
• Western New York - Journey's End Refugee Services (2 attorneys)
• Hudson Valley - Catholic Charities Community Services, Archdiocese of New York (2 attorneys)
• Long Island - New York Legal Assistance Group (NYLAG) (1 attorney)
• New York City - New York Legal Assistance Group (NYLAG) (2 attorneys)

ONA Legal Counsels will travel within their regions to meet the needs of immigrants in their communities. Services will be available at legal clinics at community-based organizations within each region. Direct representation for clients in need of assistance will be available, and ONA Legal Counsels will also conduct legal seminars and workshops. Grantees will provide translation and interpretation services for non-English-speaking new American clients.

 

ONA Legal Counsels will provide direct representation to immigrants in immigration-related proceedings using a "universal representation" model that serves any immigrant in need of legal representation in New York State.

 

Each ONA Legal Counsel in upstate regions will provide legal representation to a caseload of 15 to 20 clients at a time. Downstate ONA Legal Counsels will handle between 12 to 20 cases, depending on the specific region. Immigration legal services provided by the ONA Legal Counsel will include the following cases and services, but not be limited to:

• Deferred Action for Childhood Arrivals
• Asylum
• U visas
• T visas
• Temporary Protected Status
• Special Immigrant Juvenile Status
• Violence Against Women Act
• Removal proceedings, for those currently detained or not, including those with a prior order of removal
• Work permits
• Bond hearings
• Board of Immigration Appeals
• Federal litigation
• Advanced parole
• Family reunification
• Family-based immigration
• Complex naturalization
• Family guardianship

All services provided will be offered at no charge to clients.

 

Any immigrant that needs free legal assistance is urged to call the New Americans Hotline at 1-800-566-7636. All call information is confidential. Assistance is available in 200+ languages.

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued during the week ending April 5, 2019

 Links to material posted on the Internet highlighted in COLOR

Department of Financial Services (DFS): Oversight of the Title Insurance Industry (2017-S-10) While DFS has worked to strengthen its oversight of the industry through the regulatory process, enforcement of the existing regulations has lagged.

Office of Children and Family Services (OCFS): Access Controls Over Selected Critical Systems (2017-S-56) Controls over six OCFS systems containing confidential information were insufficient to prevent unnecessary or inappropriate access to those systems. Auditors identified 367 user accounts with inappropriate access because OCFS had not performed the required annual reviews of user accounts. This included 35 active user accounts for individuals who no longer worked for OCFS.

Metropolitan Transportation Authority (MTA): New York City Transit: Practices Used by the Transit Adjudication Bureau (TAB) to Collect Fines and Fees (Follow-Up) (2018-F-20) An initial report issued in August 2016 determined that approximately half the fines and fees assessed by the TAB are never fully collected. In addition, inaccurate information written on summonses, such as bad addresses and false telephone numbers, contributes to collection difficulties. In a follow-up, auditors found the MTA made progress in implementing the recommendations contained in the initial report.

Department of Health (DOH): Examination of Travel Expenses (2017-BSE01-02) Auditors found $9,760 of a DOH employee’s expenses were not appropriate. This includes lodging, meal, and fuel expenses for which there was no business purpose, meal allowance expenses the employee was not entitled to receive, meal per diem expenses that exceeded the maximum allowable rates and inflated transportation reimbursements. Auditors also found the employee incurred $37,795 in questionable travel expenses.

State Education Department (SED): Examination of Payments to Tough Man Inc. (2018-BSE2-001) Tough Man is a not-for-profit corporation formed to sponsor community sporting events such as walks and races in New York. SED made five payments totaling $150,000 under contracts for services provided from July 1, 2013 through June 30, 2017. The contracts provide funding for Tough Man to provide an in-school program to students and to operate triathlons for kids and teens. Auditors found SED did not request, as required, sufficient evidence to demonstrate the expenses claimed were incurred for contract purposes and exceeded program revenues and other reimbursements by $150,000. There is also risk Tough Man did not keep such records.

Find out how your government money is spent at Open Book New York. Track municipal spending, the state's 160,000 contracts, billions in state payments and public authority data. 

Criminal prosecutor's claim of absolute immunity depends on the nature of the function he or she performed

Whether a prosecutor is entitled to absolute immunity for specific actions “depends principally on the nature of the function performed.” In this action the United  States Court of Appeals, Second Circuit, held that "[a]s the presentation of inculpatory evidence showing probable cause to the grand jury is an essential prosecutorial function, necessary to obtain an indictment, doing so is protected by absolute immunity", explaining that it is “intimately associated with the judicial phase of the criminal process."

With respect to the prosecutor giving "reassurance" to an infant witness, providing such reassurance is a protected act of “advocacy” in the course of presenting the prosecutor's  evidence to the grand jury.

For the purpose of determining whether this prosecutor is entitled to absolute immunity for placing the most crucial inculpatory evidence before the grand jury, and where the accused admits that the purpose of taping the infant's testimony was to present it to a grand jury, there is no functional difference between creating a recording of the infant’s testimony for presentation to the grand jury pursuant to New York's Criminal Procedure Law §190.32 and directly questioning the infant before the grand jury as both are the creation of the essential grand jury record.

The prosecutor, therefore, was entitled to absolute immunity with respect to the prosecutor's recording the infant’s testimony, including the prosecutor's "misguided effort to reassure the [infant]." 

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/e7e13757-e9ea-4137-adec-6b9de5a93de9/1/doc/18-1377_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e7e13757-e9ea-4137-adec-6b9de5a93de9/1/hilite/

Rights to free speech and, or, academic freedom not offended by requiring a candidate for a teaching position to demonstration his or her teaching skills

The petitioner [Plaintiff] in this action appealed the federal district court's dismissal of his claims that members of a hiring committee at a State University of New York campus discriminated against him based on his age and disability and violated his First Amendment rights to free speech and academic freedom to the United States Circuit Court of Appeals, Second Circuit. Plaintiff also challenged the constitutionality of 28 U.S.C. §1915, certain procedural rules established by the District Court Judge and alleged that the magistrate judge was biased against him and should have been recused.*

Assuming, but not deciding that Plaintiff's age and disability discrimination claims are cognizable under §1983, the Circuit Court said it must first determine if the facts alleged in Plaintiff's complaint “plausibly support” the following elements:

[a] Plaintiff is a member of a protected class;

[b] Plaintiff was qualified;

[c] Plaintiff suffered an adverse employment action; and

[d] Plaintiff demonstrated at least minimal support for the proposition that the employer was motivated by discriminatory intent.

The Circuit Court held that Plaintiff's complaint did not meet this minimal standard.

Although Plaintiff alleges that the other candidates that were offered the teaching positions for which he applied were younger and less-qualified than he, the court said that these conclusory allegations do not plausibly support a discrimination claim because Plaintiff [1] "has not pled the qualifications for the position, [2] whether his qualifications met those requirements, or [3] whether the other candidates’ qualifications met those requirements."

With respect to Plaintiff's allegation that the hiring committee gave him negative evaluations for his teaching demonstration in order to cover up its discriminatory animus, the Circuit Court said that such "negative evaluations that SUNY gave [Plaintiff] ... conveyed legitimate concerns that [Plaintiff's] teaching philosophy conflicted with the university’s curriculum and needs and equally legitimate concerns about [Plaintiff's] practical skills as a teacher." Further, said the court, Plaintiff's allegation that an elderly SUNY professor had created administrative difficulties by taking medical leave does not support an inference that these legitimate reasons for not offering Plaintiff the position were pretext for discrimination.

The court opined that (a) Plaintiff's claims did not plausibly support an inference that SUNY is liable for age discrimination and (b) his allegation that SUNY violated his First Amendment guarantees of free speech and academic freedom by requiring him to give a teaching demonstrations also failed. 

Recognizing that the First Amendment protects academic freedom, the Circuit Court explained that "a university may nonetheless place parameters on scholarship when the parameters protect the university’s legitimate interest in ensuring that teaching candidates can communicate ideas effectively," citing Hazelwood School District v. Kuhlmeier, 484 U.S. 260, in which the Supreme Court noted that "schools may exercise some control over speech in schools if the school’s actions are 'reasonably related to legitimate pedagogical concerns.'”

Holding that SUNY did not violate Plaintiff's First Amendment rights to free speech or academic freedom by requiring him to perform a teaching demonstration as a candidate for a teaching position, the Circuit Court concluded that Plaintiff "has not satisfactorily pled" that any SUNY employees discriminated against him or violated his First Amendment rights and affirmed the district court's order dismissing his complaint.

* With respect to challenges to the district court’s procedure, the Circuit Court ruled that Plaintiff did not have standing to challenge either §1915’s constitutionality or the district judge’s individual practices because he had not suffered an injury because of the district court’s review of his complaint pursuant to §1915 or as the result of the district court’s pre-motion letter requirement. As to Plaintiff's motion to remove the magistrate judge, the motion was deemed moot and "otherwise fails on the merits because Plaintiff’s allegation that the magistrate was biased was impermissibly premised solely on adverse rulings."

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/fdcb5653-346c-48a4-9ff3-dc1908da6166/3/doc/18-1540_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/fdcb5653-346c-48a4-9ff3-dc1908da6166/3/hilite/