Live Government Technology webinars scheduled for the week of June 1, 2021

A Radically Simple Approach to Disaster Recovery -

Wednesday, June 2 | 1:00pm Eastern

As the value of data is increasing, governments have to be prepared for the worst. Does your organization have a simple yet scalable plan to recover from disasters? In the event of a crisis, how will you restore your data quickly? What happens if you can’t? Too often, state and local governments’ DR plans focus on recovering specific technological systems and associated storage locations. In the modern digital era, however, that approach is outdated and dangerous. Instead, organizations should focus their DR plans on safeguarding and recovering the valuable data – no matter where it lives.
Register to attend here.

Rapid Recovery: How Governments Can Futureproof Data Protection in the Era of Ransomware

Thursday, June 3 | 1:00pm Eastern

The ransomware threat is rising and state and local governments, education institutions and federal agencies continue to be a prime target. While prevention is key, an attack is more and more inevitable in an increasingly digital environment. Instead of spending an endless amount of time and money recovering from ransomware, it’s critical for the public sector to invest in enhanced data protection to ensure rapid restore is possible.
Register to attend here.

How Digital Credentials Fuel Economic Recovery and Better Constituent Service 

Thursday, June 3 | 2:00pm Eastern

The state of New York recently launched Excelsior Pass – a free, voluntary way for residents to share their COVID-19 vaccination or negative COVID-19 test status in accordance with state guidelines. The Excelsior Pass is a privacy-driven solution that will help the New York economy to reopen safely while keeping resident’s personally identifiable information safe. The Excelsior Pass is only one example of how digital credentials can transform constituent engagement, streamline government operations and build a culture of trust. Digital credentials – powered by blockchain technology – can be used for driver’s licenses, professional certifications, hunting and fishing licenses, high school and college transcripts, and more.
Register to attend here.

To view upcoming and on-demand webinars, visit webinars.govtech.com.

For assistance with registration, contact:
Jeremy Smith, jsmith@erepublic.com (916) 932-1402 direct

 

A school board wishing to enter into an executive session in the course of a school board meeting must comply with the relevant requirements set out in New York State's Open Meetings Law

The genesis of Decisions of the Commissioner of Education, Decision No. 17,989, was a ruling by Supreme Court that the school board’s discussion of a certain matter in executive session violated New York State's Open Meetings Law. 

Supreme Court issued a decision declaring that the school board had “violated the Open Meetings Law on June 9, 2020,” finding that there was "no material dispute" that the school board violated §§105 and 106 of the Public Officers by failing to state prior to entering Executive Session the matter that it intended to discuss and thereafter, in fact, discussed that matter.

With respect to Petitioner's appeal to the Commissioner of Education that resulted in Decision No. 17,989, Petitioner contended that he did not engage in “official misconduct” as charged by the school board in view of the Supreme Court’s determination that the challenged Executive Session as conducted by the school board violated the Open Meetings Law.

Decision No. 17,989 is instructive in that in adjudicating Petitioner's appeal, Commissioner of Education Betty A. Rosa addressed the following issues:

1. Efforts by a school board to remove a member of the board for "official misconduct";

2. Requirements to be satisfied by a school board in order to lawfully meet in Executive Session;

3. Allegations that a school board member disclosed "confidential information acquired by him [or her] in the course of his [or her] official duties or [using] such information to further his [or her] personal interests”; and

4. The authority of the Commissioner of Education to "define the meaning of the word 'confidential' within the public school system."

Ultimately the Commissioner found that the school board's removing Petitioner from the board for alleged "official misconduct was arbitrary and capricious" and sustained his appeal challenging such removal.

Click HERE to access Decision of the Commissioner #17,989.

Firefighter's application for accidental disability retirement benefits rejected based on substantial evidence that the injuries were not the result of an accident

A firefighter [Plaintiff] filed an application for accidental disability retirement benefits alleging that he was permanently disabled as a result of injuries sustained during seven different incidents occurring between 2006 and 2017. ERS, however, denied Plaintiff's application upon the ground that the incidents did not constitute accidents within the meaning of Retirement and Social Security Law §363. Ultimately Plaintiff withdrew four of the seven incidents, and the sole issue to be resolved was whether these incidents "qualified as accidents."

The ERS Hearing Officer denied Plaintiff's application, finding, among other things, that the cited incidents occurred during the course of Plaintiff's routine employment duties and were risks inherent in the performance of those duties. The Comptroller sustained the Hearing Officer's determination and Plaintiff initiated a CPLR Article 78 proceeding challenging the Comptroller's decision.

"As the applicant, [Plaintiff] bore the burden of establishing that his disability was the result of an accident within the meaning of the Retirement and Social Security Law ... [the Appellate Division said that the Comptroller's] determination on that point will be upheld if supported by substantial evidence in the record as a whole. Further, said the court, "for the purposes of §363, an accident is "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact," citing Matter of Kenny v DiNapoli, 11 NY3d 873 and other court decisions. In contrast, opined the Appellate Division, "[a]n injury that results from the performance of ordinary employment duties and is a risk inherent in such job duties is not considered accidental."

The decision reports that Plaintiff "does not dispute, and the record indeed establishes, that [Plaintiff] was engaged in the performance of his ordinary firefighting duties during each of the incidents at issue" which involved encountering smoke, water, tangled hose lines, reduced visibility and debris, falling ice that 'could have been reasonably anticipated' as well as the corresponding threat of tripping or falling due to such conditions."

Concluding that substantial evidence supported ERS's finding that the incidents at issue did not constitute accidents within the meaning of §363, the Appellate Division declined to disturb the Comptroller's decision.

Click HERE to access the Appellate Division's decision. 

Former town clerk to serve six months in county jail after pleading guilty to stealing public funds

New York State Comptroller Thomas P. DiNapoli reported that a former town clerk [Clerk] was sentenced to six months in County jail for stealing nearly $27,000 in public funds for her personal use after she pled guilty to a number of criminal charges including "grand larceny in the third degree/public servant (a class C Felony); two counts of tampering with public records in the first degree (a class D felony); scheme to defraud in the first degree (a class E felony) and official misconduct (a class A misdemeanor)."

Clerk's thefts, which were discovered during a joint investigation by the State Comptroller's office, Yates County District Attorney Todd Casella’s office and Yates County Sheriff Ronald Spike’s office, consisted of cash payments made to the town for property taxes and fees for marriage licenses, dog licenses, hunting permits and building permits. The Comptroller said the funds stolen were used by Clerk "to support her personal lifestyle, including trips to casinos and gambling websites."

Comptroller DiNapoli opined that “[w]hen a public servant steals taxpayer funds, it damages the public’s trust in government.” "A public office is a public trust and regrettably this town clerk acted contrary to their oath,” said Yates County Sheriff Spike. “I thank all involved in this criminal investigation, prosecution, and conviction, especially the New York State Comptroller’s office for their forensic work.”

Such misconduct by a public officer is referred to as "Jobbery" -- using one's public office or position of trust for ones' personal gain or advantage. Having taken advantage of the trust placed in her, Clerk will pay $26,729 in restitution as part of her plea agreement, of which she has already paid $20,000. 

Click HEREto access the full text of the Comptroller's statement.

###

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at, investigations@osc.ny.gov, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

 

Establishing a prima facie case of unlawful discrimination

In Joseph v. Leavitt, 465 F.3d 87, the United States Circuit Court of Appeal held that "A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment."

In the instant case, the Circuit Court indicated that only certain prongs of Plaintiff's prima facie case were in dispute, i.e., the extent to which Plaintiff suffered the alleged adverse employment action or actions and whether those actions occurred under circumstances that give rise to an inference of discrimination. Here, said the court, Plaintiff's employment was terminated, "which itself is, of course, an adverse employment action."

Noting that there were factual issues regarding whether the New York Police Department's [NYPD] investigating personnel's pre-termination conduct constituted an adverse employment action, the Circuit Court opined that "[v]iewing the evidence in a light most favorable to Plaintiff, a reasonable juror could infer that the investigators' consulted with certain NYPD units "not because of information linking [the Plaintiff to] terrorism but because of [Plaintiff's] national origin, ancestry, or religion. Further, the court indicated that under the circumstances, "[a] reasonable juror could also infer that, after the ... investigator did so, it resulted in a more searching investigation and harsher discipline than had [the NYPD] applied its standard investigative and disciplinary procedures.

The Circuit Court also concluded that Plaintiff presented sufficient evidence to raise a triable issue of fact as to whether the investigation and termination occurred giving rise to an inference of discrimination, i.e., statements made by NYPD personnel in which "they noted [Plaintiff's] national origin (Egyptian) and his ancestry (Middle Eastern) while investigating his alleged misconduct." Further, the decision states that Plaintiff had set forth evidence that NYPD launched an investigation into Plaintiff and his family involving the NYPD personnel, which, arguably, "was a departure" from the NYPD's normal investigative procedures.

Accordingly, the Circuit Court concluded that Plaintiff provided "admissible evidence sufficient to permit a rational finder of fact to infer a discriminatory motive" and Plaintiff's factual claims under the New York City Human Right Law must be analyzed "more liberally" than his federal discrimination claims.

Considering the fact that Plaintiff advanced sufficient facts to carry the heavier burden of establishing his federal claims, the Circuit Court said it had "no trouble concluding that he set forth sufficient facts to carry the lesser burden on his city claims," and remand the matter to the federal district court "for further proceedings consistent with this order." 

Click HEREto access the Second Circuit's decision.