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

June 30, 2020

A police officer forfeited his qualified immunity by using excessive force against an individual who posed no threat to the officer or to others

A complaint brought pursuant to 42 U.S.C. §1983 alleged that a number of New York City police officers [Defendants] used excessive force against Plaintiff in the course of his being arrested. The jury found that only one officer, Officer A, used excessive force against the Plaintiff when Officer A used "two taser cycles" against him.*

The federal district court granted Officer A's motion claiming qualified immunity** and dismissed Plaintiff's complaint "as a matter of law." Plaintiff appealed the ruling to the U.S. Circuit Court of Appeals, Second Circuit.

The Circuit Court reversed the lower court's decision, explaining that the evidence before the jury allowed it to reasonably conclude that Plaintiff was no longer resisting arrest and was not a safety threat to the officers, or others, at the time of Officer A used the taser against him a second time.

Citing Garcia v. Dutchess County, 43 F. Supp. 3d 281, in which the federal district court in that action concluded that “[i]t was . . . clearly established law in the Second Circuit as of April 2000 that it was a Fourth Amendment violation to use ‘significant’ force against arrestees who no longer actively resisted arrest or posed a threat to officer safety," the Circuit Court vacated the district court’s judgment and remanded the matter "for proceedings consistent with this opinion."

* The jury found that the other officers present during Plaintiff's arrest were not liable. 

** Jones v Muniz, posted on the Internet at https://casetext.com/case/jones-v-muniz

The Second Circuit Court's decision is posted on the Internet at:

June 29, 2020

Conditioning the disclosure of material sought pursuant to a FOIL request upon the prepayment of costs authorized by statute

Supreme Court, among other things, granted Petitioners' motion to prohibit the School District's imposition of costs under color of Public Officers Law §87(1) related to Petitioners' request pursuant to the Freedom of Information Law [FOIL]. School District appealed.

The Appellate Division unanimously affirmed the lower court's decision, explaining that School District "failed to demonstrate sufficient justification for the costs sought to be imposed pursuant to §87(1)." 

Citing Matter of Weslowski v Vanderhoef, 98 AD3d 1123, the Appellate Division opined that in the event an agency conditions disclosure of material sought pursuant to FOIL upon the prepayment of costs or refuses to disclose records except upon prepayment of costs, the agency has the burden of articulating a particularized and specific justification' for the imposition of those fees."

In the words of the Appellate Division: "Specifically, the agency must demonstrate that the fees to be imposed are authorized by the cost provisions of FOIL" and found that the School District failed to meet that burden in this instance.

With respect to School District's contention that Supreme Court should have denied, with prejudice, Petitioners' motion seeking attorney's fees and other litigation costs, the Appellate Division concluded that Supreme Court properly determined that the issue of the School District's liability for such payments remained an open question at this stage in the litigation as no determination could yet be made as to whether Petitioners would "substantially prevail" for the purposes of claiming such reimbursement.

The decision is posted on the Internet at:

June 28, 2020

Recognizing Juneteenth as a Holiday for State Employees

Consistent with the Executive Order* issued by New York State Governor Andrew M. Cuomo observing Juneteenth as a holiday for state employees in 2020, the New York State Department of Civil Service has published Policy Bulletin No. 2020-03 applicable to the 2020 holiday.

The Text of Policy Bulletin No. 2020-03 is posted on the Internet at:
If you wish to print Policy Bulletin No. 2020-03, a PDF version is posted on the Internet at: https://www.cs.ny.gov/attendance_leave/pb20-03.pdf

To view previous Attendance and Leave bulletins issued by the Department of Civil Service, visit: https://www.cs.ny.gov/attendance_leave/index.cfm

Governor Cuomo plans to advance legislation to make Juneteenth an official state holiday next year and a revised guidance is to be issued addressing future observances of Juneteenth upon the enactment of such legislation.

The Executive Order is posted on the Internet at EO-204.Pdf


NYPPL postings during the week ending June 27, 2020

Links to the most popular NYPPL postings during the week ending June 27, 2020 as reported by Google Statistics.



















June 27, 2020

Audits of New York State Department and Agencies and political subdivisions of the State issued during the week ending June 26, 2020

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued during the week ending June 26, 2020. To access the full report click on the data highlighted in color.

State Department and Agencies

New York City Department of Housing Preservation and Development, Purchasing Practices at the Linden Plaza Mitchell-Lama Housing Development (2019-F-50) (Follow-Up) An audit issued in September 2018 found that New York City’s rules were limited in scope and did not encourage Linden Plaza officials to make purchases at competitive prices and none of the $10.7 million in purchases made by Linden Plaza were subject to competitive bidding. With limited exception, there was no documentation indicating that Linden Plaza had conducted price analyses or taken other steps to determine the reasonableness of the prices related to sampled non-contract purchases. In a follow-up, auditors found that HPD officials made limited progress in addressing the problems identified in the initial audit.


State Education Department (SED): Oversight of Smart Schools Bond Act Funds (2019-S-13) It takes SED nearly 300 days on average to approve school district projects funded through the Smart Schools Bond Act, leading to project delays and increased costs. While SED has taken steps to review school districts’ Smart School spending plans, it has not done enough to ensure the money is going to appropriate projects that meet guidelines to get funding.


State Education Department: Through Ages Inc. – Compliance With the Reimbursable Cost Manual (2019-S-56) Through Ages is a New York City-based for-profit organization authorized by SED to provide preschool Special Education Itinerant Teacher (SEIT) services to children with disabilities who are between the ages of three and five years. For the three fiscal years ended June 30, 2015, auditors identified $137,377 in reported costs that did not comply with the requirements for reimbursement and recommended those costs be disallowed.


State University of New York Upstate Medical University (Upstate): User Access Controls Over Selected System Applications (2019-S-34) Upstate’s access controls are not sufficient to prevent unnecessary or inappropriate access to various applications. Inappropriate access can lead to intentional or accidental modification, destruction, or disclosure of clinical, educational, and research – and otherwise confidential – information.


School Districts 

Commack Union Free School District – Information Technology (IT) Assets Inventory (Suffolk County) At the time of initial visits to nine district buildings, auditors were unable to locate 146 of 475 IT assets tested (31 percent). It took between 11 and 55 days from the initial visits for officials to locate 80 additional IT assets. Because of inaccurate inventory records, district officials were unable to locate the remaining 66 IT assets (14 percent).


The board overestimated appropriations from 2016-17 through 2018-19, resulting in over $5 million in appropriated fund balance not being used to finance operations. After adding back unused appropriated fund balances each year, the district’s recalculated surplus fund balance exceeded the statutory 4 percent limit each of the last three fiscal years ranging from 12.1 percent to 16.7 percent.


Rochester City School District – 2020-21 Budget Review (Monroe County) Auditors commend the superintendent and board for the actions they have taken to improve the accuracy of budget projections in the 2020-21 budget and restore the district’s overall financial condition, especially in light of the challenges caused by unexpected revenue reductions due to the economic fallout resulting from the COVID-19 pandemic. Auditors found revenue projections to be substantially accurate. However, appropriations for charter school tuition are underbudgeted by approximately $1.5 million, and salary and substitute costs will have to be closely monitored. Additionally, the budget remains structurally imbalanced because district officials are relying on the city council to approve a waiver to the city charter for the use of $10 million for operation expenditures rather than capital purposes. Therefore, absent recurring additional revenue, appropriation reductions will be necessary for future budgets to be structurally balanced.


Urban Choice Charter School – Information Technology (Monroe County) A former employee’s user account was used to process 510 financial transactions after her resignation. In addition, school officials did not adopt IT policies or a disaster recovery plan. IT users were not provided with IT security awareness training. 


Municipalities and Political Subdivisions

Berkshire Fire District – District Operations (Tioga County) District officials did not comply with their procurement policy when procuring assets. Auditors determined the district could have saved $3,800 if it had purchased propane at state contract prices. Auditors also determined the board did not establish adequate controls to safeguard fixed assets. In addition, the treasurer did not submit required annual financial reports to the State Comptroller’s Office.

Town of North Elba – Cash Collections (Essex County) Auditors determined the town clerk did not deposit collections totaling $100,496 in a timely manner. In addition, the golf director did not provide adequate oversight of golf course collections. Auditors also found the park manager did not ensure employees remitted collections at the end of activities.


Frankfort Hill Volunteer Fire Company – Financial Activities (Herkimer County) Auditors determined the bylaws provided limited guidance on financial responsibilities and the board did not establish any supplemental financial policies or procedures. The treasurer did not maintain adequate accounting records and prepare monthly bank reconciliations. Most claims were paid without membership approval, as required by the bylaws and 47 claims totaling $34,437 were paid without proper supporting documentation. In addition, company officials did not ensure that cash receipts were adequately documented. Of 125 deposits totaling $318,091 made during the audit period, 43 deposits totaling $16,023 were either supported by only a deposit receipt or had no supporting documentation.


Village of Hilton – Financial Management (Monroe County) Auditors determined the board adopted budgets with unrealistic estimates, which resulted in operating surpluses and unused appropriated fund balances in the general, water and sewer funds. In addition, the board maintained unreasonable levels of fund balance in these funds that ranged between 29 percent and 128 percent of subsequent years’ budget appropriations. Also the board did not adopt a multiyear financial and capital plan or a detailed reserve plan that included the need and optimal funding level for each reserve.


Town of Mooers – Highway Asset Accountability (Clinton County) The highway superintendent did not maintain a complete and up-to-date inventory of department assets. Auditors determined department assets were not properly disposed of. In addition, town officials did not adequately monitor fuel use, which resulted in 9,216 gallons of unrecorded fuel used at the highway facility, valued at $20,576. Also, the Mooers Volunteer Fire Department was not billed for 2,413 gallons of recorded fuel used, valued at $4,841.


Town of Mooers – Cash Management (Clinton County) The board did not develop and manage a comprehensive investment program to ensure interest earnings were maximized. Auditors determined that had the supervisor invested available funds in a financial institution with higher available interest rates, revenue could have increased by approximately $31,300 during the audit period.


Town of Mooers – Procurement (Clinton County) The board did not ensure that officials and employees procured goods and services in accordance with the procurement policy. Of the nine purchase contracts totaling approximately $1.3 million that were entered into during the audit period and exceeded the competitive bidding threshold, one purchase contract totaling $61,766 was not procured in accordance with statutory requirements. In addition, of the 15 purchase and public works contracts totaling $150,939 that did not exceed the competitive bidding threshold, 11 contracts (73 percent) totaling $105,010 were not procured in accordance with the procurement policy.


Town of Patterson – Information Technology (IT) (Putnam County) The board did not adopt adequate IT policies or a disaster recovery plan. Auditors found town officials did not have a service level agreement with the IT consultant. In addition, town officials did not provide IT security awareness training to staff. Sensitive IT control weaknesses were communicated confidentially to officials.


Village of Port Chester – Dual Employment (Westchester County) Village officials did not establish adequate time and attendance controls. Auditors could not confirm the three employees identified worked all the hours they were paid for. In addition, village officials did not ensure that employees’ days and hours worked were adequately documented, certified by the employees or verified by a supervisor. Leave usage paid, totaling $3,979, was not deducted from leave accruals, and 536 hours of leave was taken without the use of time off request forms, as required.


Town of Rushford – Procurement (Allegany County) The board and town officials could improve the town’s procurement policy and purchasing procedures. Auditors determined that out of 59 payments totaling $632,000, two purchases totaling $175,000 were not competitively bid as required. They also determined that out of 55 purchases totaling $189,000, 17 purchases totaling $56,000 did not have the required request for proposal or the required number of quotes prior to being made. The town’s procurement policy does not require the solicitation of competition, such as written proposals or quotes, for the procurement of professional services.


Town of Westerlo – Information Technology (Albany County) Town officials did not adequately safeguard IT resources. In addition, town officials have not established appropriate policies and procedures to safeguard IT resources. Auditors also found town officials have not implemented strong access controls over user accounts and have not disabled unnecessary accounts. They also have not formalized a contract describing specific services to be provided by the town’s third-party IT vendor.


West Seneca Fire District #4 – Procurement (Erie County) The district’s procurement policy could be improved and the board of fire commissioners should ensure compliance with the policy. District officials were unable to provide written quotes for 42 purchases totaling $149,854 to demonstrate competitive pricing.


City of Yonkers – Budget Review (Westchester County) The 2020-21 budget relies on nonrecurring revenue of $67.1 million, such as fund balance, one-time state funding and sale of property, to balance its budget. Firefighting overtime costs could potentially be over budget by as much as $4 million and police overtime costs could potentially be over budget by $2.3 million based on the 2019-20 fiscal year overtime costs. The city plans to borrow up to $15 million for tax certiorari settlements in the 2020-21 fiscal year. Over the last 10 years, the city’s outstanding debt has grown 22.4 percent and the city’s debt service payments have risen 25.9 percent. The city will need $82.2 million to service its debt obligations during 2020-21. With the 2020-21 budget, the city will have exhausted 79.91 percent of its taxing authority and the city’s ability to increase property taxes may be limited in future years if property values do not increase.


Also Available from the Office of the State Comptroller

How New York State government money is spent is posted at Open Book New York. Track municipal spending, the State's 170,000 contracts, billions in State payments and public authority data. 




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