An individual may be subjected to disciplinary action for alleged off-duty misconduct having a clear nexus to his status as an employee

During an investigation by the New York City Department of Education's [DOE] Office of Special Investigations [OSI] into a complaint that confidential student information had been posted on the Internet, the plaintiff [Petitioner], a DOE employee, acknowledged that he was involved in posting the information at issue on the website of United Federation of Teachers (UFT) Solidarity, "a political caucus within the UFT."

Contending that OSI has no jurisdiction to investigate his alleged misconduct because he undertook this activity as a private citizen and education activist, not in his capacity as a DOE employee, Petitioner filed a CPLR Article 78 action asking the court to annul DOE's determination that he had violated Chancellor's Regulation A-820 and the federal Family Educational Rights and Privacy Act* [FERPA].

The Appellate Division said that Petitioner's argument that OSI has no jurisdiction in this matter "is unavailing," opining that Petitioner's misconduct has a clear nexus to his status as a DOE employee. Citing Board of Educ. City of N.Y. v Hershkowitz, 308 AD2d 334, leave to appeal dismissed 2 NY3d 759, the Appellate Division explained that OSI is charged with investigating misconduct within the City of New York school district, which is not limited to misconduct committed by a DOE employee acting within the scope of his employment.

The court noted that OSI had rationally determined that by posting the confidential student information at issue, which included transcripts, attendance records, and grade-change records, Petitioner had violated the FERPA and Chancellor's Regulation A-820, which conforms to federal regulations promulgated pursuant to FERPA.**

* See 20 USC § 1232g[b][2]. 

** See 34 CFR part 99.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_05703.htm

 

Sewer overflow problems

New York State Comptroller Thomas P. DiNapoli notes that at least 20 percent of the publicly-owned sewer systems in New York state were not reporting overflow events or registered with the electronic notification system (NY-Alert) that tracks those events, potentially putting the public at risk, according to an audit of the NYS Department of Environmental Conservation DEC] released on October 19, 2020.

Two laws related to wastewater discharges protect New York’s natural resources and the health of its residents: the 2013 Sewage Pollution Right to Know Act, which requires public reporting of sewage discharges; and the State Pollutant Discharge Elimination System (SPDES) program, which controls permitted discharges into public waterways.

The Right to Know Act requires publicly owned water treatment works and publicly owned sewer facilities to report untreated and partially treated sewage discharges to DEC and the local health department within two hours of discovery and to notify the public and nearby municipalities within four hours of discovery. Exposure to untreated sewage can cause serious illnesses such as dysentery, hepatitis, cholera and cryptosporidiosis, according to the U.S. Environmental Protection Agency.

Auditors found that documentation supporting when overflows occurred varied by facility but included automated emails, phone calls, and text messages from the facilities’ monitoring systems or time-stamped screenshots of the monitoring system dashboard, and logbook entries. Some facilities were unable to provide time-stamped documentation. Due to these limitations, auditors could not verify the timeliness of 37 percent of the events. Of the other events, 18 percent were not reported within two hours and 10 percent were not reported within four hours, as required.

DEC officials generally agreed with the recommendations and indicated actions they would take to implement them. Their full comments are included in the report posted on the Internet at https://www.osc.state.ny.us/files/state-agencies/audits/pdf/sga-2021-19s54.pdf?utm_medium=email&utm_source=govdelivery.

School District audits released during the week ending October, 16, 2020

New York State Comptroller Thomas P. DiNapoli announced the following school district audits have been issued during the week ending October 16, 2020

Broadalbin-Perth Central School District – Cash Management (Fulton County, Saratoga County and Montgomery County) - District officials did not develop and manage a comprehensive investment program. As a result, officials did not maximize interest earnings for the district. In addition, officials did not formally solicit interest rate quotes or prepare cash flow forecasts to estimate the amount of funds available for investment. Officials earned interest totaling $40,652 during the audit period. However, auditors determined they could have earned another $159,100 had officials used other available investment options.

Mahopac Central School District – Non-instructional Payroll (Putnam County) - The transportation department’s payroll was not adequately approved, supported and documented. In addition, a staff person received overtime pay that was not properly supported by documentation.

Minerva Central School District – Financial Condition Management (Essex County and Warren County) - District officials overestimated appropriations by a total of more than $2.1 million from 2016-17 through 2018-19 and annually appropriated fund balance that was not used to finance operations. Unrestricted fund balance ranged between 18.5 and 31.1 percent of ensuing years’ appropriations, exceeding the 4 percent statutory limit. In addition, district officials did not develop a comprehensive multiyear financial plan.

New York Mills Union Free School District – Procurement (Oneida County) - District officials did not always seek competition for purchases that are not subject to competitive bidding. Officials also did not comply with the district’s procurement policy. Auditors determined the purchasing agent did not effectively perform her procurement duties. In addition, officials did not always seek competition for professional services. No competition was sought for the services procured from five professional service providers totaling $89,421. No written or verbal quotes were obtained for the purchase of goods and services from 13 vendors who were paid $73,032.

 

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10 RBG Takeaways from 2 Lawyers

Ruth Bader Ginsburg’s passing has spurred great memories from across all demographics. She paved the way for women’s equality—from the right to sign a mortgage without a man to the right to have a bank account without a male co-signer, and even the right to have a job without being discriminated against based on gender.   

 

What did the accomplishments of Ruth Bader Ginsburg mean to generations of women in the workforce?  Here, Erica Baird and Karen Wagner, two successful lawyers now retired—and the cofounders of Lustre.net, an online community whose mission is to redefine retirement for modern career women by confronting outdated concepts and defying stereotypes—talk lawyer-to-lawyer as they reflect on 10 RBG Takeaways that can inspire every woman [Ed. Note: " and man"] … young and old: 

 

1. Find a job you love. RBG was rejected, again and again, including by New York law firms. But just think—if she had been employed in a law firm, she likely never would have ascended to the Supreme Court. And that was her dream job.

 

2. Be strategic. Figure out where you want to go, and then, before you start, figure out how best to get there. RBG did that with her litigation strategy. Showing how men were hurt by sex discrimination was a more effective strategy than having only women plaintiffs. 

 

3. Be human. Separate your advocacy from your relationships. And do have relationships. RBG's best friend was her fellow justice Antonin Scalia. She disagreed with him, fiercely, about pretty much every legal point. But they loved each other, and bonded over music, and over dinners prepared by RBG's husband. It was not a transactional relationship; it was a human relationship.

 

4. Work hard. You must earn your victories. RBG started working hard when she was a new lawyer, and she never stopped. Look at the honor guard at the Supreme Court for her memorial, composed of people who worked as her clerks, responding to 2 a.m. faxes and constant demands for more precise analysis, as long as she lived. They undoubtedly loved her for her humanity, but they also surely loved her because she made them better lawyers.

 

5. Be precise. Words matter. The practice of law is a combination of analysis and communication. Communication is more effective when it is spare and clear. RBG's writing was crisp and muscular. Any reader got her point.

 

6. Presence matters. Justice Ginsburg always looked professional and elegant in her Armani suits and her long black robes. She was all brilliant lawyer and all powerful woman. And, like Barbara Bush with her faux pearls, RBG sent signals with her decorative collars.

 

7. Find a good partner. Her “Marty” was legendary—an attorney in his own right, not threatened by a strong woman.

 

8. Advocate with humor. As she did when becoming a little deaf, or remarking that the Supreme Court will have a sufficient number of women only when there are nine.

 

9. Find something outside of your job to love. She found opera, and lost herself in music.

 

10. Work out. RBG, the documentary, showed RBG working out very strenuously. Like everything else she did, she went all out. If you do the same your lives will be richer for it.

 

About Lustre.net
Lustre.net is an online forum founded by Erica Baird and Karen Wagner, two New York City retired attorneys. Together, Baird and Wagner are on a mission to redefine retirement for modern career women by confronting outdated concepts, defying stereotypes and raising our collective voices to ensure that retirement for all of us is shaped by women, for women. Baird and Wagner want women to “tap into our experiences and passions, forge new identities and find new purpose—and pass on what we know to the next generation.” 

 

Posted by NYPPL with the permission of Mouth Digital PR [Justin.loeber@mouthdigitalpr.com].

 

Retiring upon attaining the mandatory age of retirement bars claim for line of duty sick leave benefits

General Municipal Law §92-d provides for sick leave benefits to certain employees with qualifying World Trade Center conditions as defined by §2 of the Retirement and Social Security Law. 

A former fire chief [Chief] commenced this CPLR Article 78 proceeding against his former employer [City] in an effort to have the City's determination denying his application for line-of-duty sick leave pursuant to General Municipal Law §92-d annulled. Supreme Court granted the City's motion to dismiss the Chief's petition, agreeing with the City that the Chief's Article 78 action was moot. The Chief appealed.

The Appellate Division affirmed the Supreme Court's ruling, observing that after the Chief filed his Article 78 petition in this case he attained "the mandatory retirement age pursuant to Retirement and Social Security Law §370 (b) and retired with the maximum amount of accrued sick leave."

The court explained that it is "a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal," referencing Matter of Hearst Corp. v Clyne, 50 NY2d 707, at page 713.

Opining that "[u]nder the circumstances here, Supreme Court properly dismissed the petition as moot," the Appellate Division held that this proceeding is "not of the class that should be preserved as an exception to the mootness doctrine."

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_05665.htm