July 2020 AELE case notes, publications, and seminar alerts

The case notes, publications, and seminar alerts listed below have been posted on the Internet by Americans for Effective Law Enforcement [AELE]:

Public Safety Discipline and Internal Investigations Seminar---Attend Virtual or In Person. Las Vegas, Nevada is opening for business and will be in full swing for the September 28, 2020 3.5-day updated seminar on "Public Safety Discipline and Internal Investigations Seminar." A first: You can virtually attend the seminar because it will be broadcast live. The seminar begins on Monday, September 28 and ends at Noon on October 1, 2020. Another first is online registration and payment. For registration and more information, http://www.aele.org/public-safety-discipline-and-internal-investigations.html

July Law Enforcement Liability Reporter: This issue has cases on COVID-19, failure to disclose evidence, & loss of evidence/preservation of evidence, false arrest/imprisonment: unlawful detention, Federal Tort Claims Act, firearms related: intentional use, firearms related: Second Amendment issues, medical care, and search and seizure: home/business. http://www.aele.org/law/2020all07/LR2020JUL.pdf

July Fire, Police and Corrections Personnel Reporter: This issue has cases on collective bargaining – duty to bargain, family personal and medical leave, First Amendment, homosexual and transgender employees, pay disputes – in general, pensions, probationary employment, race discrimination, race and sex discrimination, retirement pay and benefits, and sex discrimination. http://www.aele.org/law/2020all07/FP2020JUL.pdf

July Jail and Prisoner Law Bulletin: This issue has cases on COVID-19, disability discrimination: prisoners, governmental liability: policy/custom, medical care, medical care: mental health, Prison Litigation Reform Act: exhaustion of remedies, prisoner assault: by inmates, prisoner assault: by officers, prisoner suicide, and U.S. Supreme Court actions. http://www.aele.org/law/2020all07/JB2020JUL.pdf

This announcement is posted by NYPPL Pro Bono.

Audits of New York State Department and Agencies and political subdivisions of the State issued during the week ending July 3, 2020

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued during the week ending July 3, 2020. To access the full report click on the data highlighted in color.

SCHOOL DISTRICT AUDITS

The following school district audits have been issued.

Eastport-South Manor Central School District – Building Safety (Suffolk County) District officials did not provide effective oversight to ensure compliance with required building safety at the junior-senior high school. Auditors determined, district officials did not fix leaks in the heating, cooling and ventilation system requiring buckets in the halls to collect leaked water. In addition, district officials did not create a corrective action plan to address issues found in the 2015 building condition survey.

Margaretville Central School District – Financial Management (Delaware County) The board overestimated appropriations and allocated approximately $1.4 million in fund balance from 2016-17 through 2018-19 that it did not use to fund operations because of generated surpluses. As of June 30, 2019, the surplus fund balance totaled approximately $3.9 million or 32 percent of the next year’s budget, exceeding the statutory limit. Overall, auditors determined the fund balance totaled almost $3.2 million, exceeding the statutory limit by approximately $2.7 million or 22 percent as of June 30, 2019.

Mount Markham Central School District – Financial Management (Herkimer County, Oneida County, Madison County and Otsego County) Officials overestimated appropriations by an average of $1.4 million (5.6 percent) from 2016-17 through 2018-19. In the last three completed fiscal years, the district generated operating surpluses totaling $2.3 million instead of the $2.6 million in deficits planned in the budgets. In addition, district officials have not updated the multiyear financial plan since it was first developed in 2016.

Yorkshire-Pioneer Central School District – Financial Management (Wyoming County, Cattaraugus County, Erie County and Allegany County) The board and district officials overestimated appropriations by a total of approximately $11.6 million from 2016-17 through 2018-19 and annually appropriated an average of $3.3 million of fund balance that was not used to finance operations. As of June 30, 2019, surplus fund balance totaled approximately $5 million and was 9 percent of 2019-20 appropriations, exceeding the statutory limit by approximately $2.7 million

MUNICIPAL AUDITS

The following local government audits have been issued.

Village of Dering Harbor – Board Oversight (Suffolk County) The board failed to comply with statutory requirements when presenting and adopting budgets for 2013-14 through 2018-19. Auditors determined the board underestimated revenues by a total of $151,908 (9.5 percent) and underestimated appropriations by a total of $210,126 (13.1 percent) over the past five years (2013-14 through 2017-18). As a result, the general fund realized operating deficits in four of the five years and general fund balance declined from $61,710 to $3,491. In addition, the board did not properly authorize a local law to exceed the tax levy limit. The 2018-19 levy exceeded the calculated limit of $331,470 by $65,143.

City of Syracuse – Water System Cybersecurity (Onondaga County) City officials could improve information technology (IT) security controls to safeguard water system operations against unauthorized access or disruption. Auditors determined network and local user accounts were not properly managed. Officials did not establish a process for staying current on water system cybersecurity threats. The city also did not have service level agreements (SLAs) with its IT vendors. Sensitive IT control weaknesses were communicated confidentially to city officials. 

Can employers require employees to submit to tests for COVID-19?

An analysis by Richard Dahl dated June 23, 2020 posted by FindLaw* on the Internet at:  https://blogs.findlaw.com/law_and_life/2020/06/can-employers-require-employees-to-test-for-covid-19.html?DCMP=cons_everyday:nwl:cp:c19r:feature

* Source: FindLaw Newsletters at findlawnewsletters@thomsonreuters.com

Parsing a complaint alleging various acts of unlawful discrimination

A tenured associate professor [Plaintiff] employed by the defendant [College], commenced this action alleging that the College discriminated against her on the basis of sex and  her disability and retaliated against her after she complained of such alleged unlawful discrimination. Supreme Court granted the College's motion for summary judgment dismissing the complaint and Plaintiff appealed.

With respect to the alleged disparate treatment and disability discrimination that was based on the College's purported refusal to provide Plaintiff a reasonable accommodations for her disability in violation of the Americans with Disabilities Act Contrary, the Appellate Division ruled that Supreme Court properly granted that portion of the College's motion with respect to Plaintiff's allegations of disparate treatment and disability discrimination based on the College's purported refusal to provide reasonable accommodations for her disability in violation of the Americans with Disabilities Act. The Appellate Division explaining that the College had met its initial burden on the motion with respect to those aspects of Plaintiff's causes of action by establishing that an essential function of Plaintiff's job was teaching and that Plaintiff's requested accommodation, -- that she be allowed to work part time without teaching any courses -- was unreasonable.

Addressing Plaintiff's allegation that College violated the Equal Pay Act of 1963, the Appellate Division modified the Supreme Court's order based on its finding that the College "failed to establish as a matter of law that the difference in pay between Plaintiff and a less senior male colleague who performed similar work under similar conditions 'is due to a factor other than sex.'" In so doing the court rejected the College's claim that the pay disparity was the result of a merit system, finding that the evidence it submitted in support of its motion [1] failed to demonstrate as a matter of law that there was "an organized and structured procedure whereby employees are evaluated systematically according to predetermined criteria" and [2] that the College's employees "were aware of the purported merit system."

Turning to Plaintiff's causes of action for alleged sexual discrimination under Title VII and the New York State Human Right Law [NYSHRL], the Appellate Division concluded that issues of fact existed as to whether the College's challenged actions were "based upon nondiscriminatory reasons," and thus summary judgment was precluded on those causes of action and that they should also be reinstated.

With respect to Plaintiff's allegations of unlawful retaliation, the Appellate Division opined that to establish a claim for unlawful retaliation under the NYSHRL, a plaintiff must show that "(1) she has engaged in protected activity, (2) her employer was aware that she participated in such activity, (3) she suffered an adverse employment action based upon her activity, and (4) there is a causal connection between the protected activity and the adverse action." In contrast, said the court, a defendant may establish entitlement to summary judgment in a retaliation case if the defendant "demonstrate[s] that the plaintiff cannot make out a prima facie claim of retaliation."

The Appellate Division decided that the College's denial of Plaintiff's request to return to work part time without any teaching duties and its requirement that she retain an administrative role that fell "within the duties of [her] position'" were not adverse employment actions and thus Plaintiff failed to make out a prima facie claim of retaliation with respect to these allegations.

In contrast, however, the Appellate Division found that 'issues of fact exist" as to whether  the College unlawfully retaliated against Plaintiff after she complained of gender discrimination when it required her to retain her position as the undergraduate coordinator while at the same time maintaining her regular course load and also reinstated this element of her petition.

As to Plaintiff's allegations of violations of Title VII based on unlawful retaliation, the Appellate Division held that Supreme Court correctly dismissed this element of Plaintiff's complaint because she had failed to exhaust her administrative remedies, a condition precedent to going forward with this aspect of her complaint.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_03346.htm

Some factors considered by courts in evaluating an arbitration award

The Appellate Division reviewed Supreme Court's denial of an Educator's petition seeking a court order vacating an arbitration award sustaining 13 specifications set out in disciplinary charges served on the Educator alleging incompetence and neglect of duty which resulted in Educator's termination from her employment as a New York City public school teacher by the New York City Board of Education [Board].

The Appellate Division unanimously affirmed Supreme Court's ruling and its granting the Board's cross motion to dismiss Educator's petition, explaining that the Hearing Officer's determinations concerning Educator's alleged teaching deficiencies during a four-year observational period:

a. were supported by adequate evidence, including testimony by school administrators and documentation;

b. were was rational, and not arbitrary and capricious; 

c. considered the Board's "significant remediation efforts;" and

d. the Hearing Officer found that those remediation efforts were adequate and supported by the evidence showing that Educator received feedback and suggestions for improvement through observation reports and one-on-one meetings, as well as assistance and support from her colleagues and outside professionals, and was provided with a teacher improvement plan.

Further, said the Appellate Division, in determining an appropriate penalty to be imposed, the Hearing Officer's considered Educator's "long-term pattern of inadequate performance." 

Thus, opined the court, the Hearing Officer's imposing a penalty terminating Educator from her position was, under the circumstances, "proportionate to the offenses" for which Educator was found guilty.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_03473.htm