Balancing a plaintiff's privacy interests against the presumption in favor of public disclosure of the names of the parties involved in a litigation

The defendant [Appellant] challenged Supreme Court's granting plaintiff's [John Doe] motion to proceed in this action using pseudonym "John Doe" rather then rather than reveal his identity. The Appellate Division unanimously affirmed the lower court's ruling, without costs.

Citing  Anonymous v Lerner, 124 AD3d 487, the Appellate Division opined that after a "comprehensive balancing" of Doe's privacy interests against the presumption in favor of public disclosure and any prejudice to Appellant, Supreme Court "providently exercised its discretion in granting [John Doe's] motion to proceed anonymously."

Supreme Court's, said the court, had credited Doe's assertions that "he feared not only embarrassment and economic harm from the public disclosure of his identity but also social stigmatization, professional repercussions, and social isolation from his peers and colleagues in the legal profession", which concerns Appellant "had offered no reason to question."

Although Appellant argued that such disclosure would have no chilling effect since Doe  has already commenced suit, the Appellate Division observed that Appellant's argument "fails to account for the real possibility that [Doe] would be dissuaded from pursuing the action further and for the inhibiting effect it could have on other potential plaintiffs."

Concluding that Doe's proceeding anonymously would better serve the public's right to know than having the records sealed, the Appellate Division noted that:

1. Appellant had not explained why the public must know Doe's identity in addition to all other aspects of the case; and

2. Appellant has not shown that it will suffer any prejudice as Doe had agreed to divulge his identity to it and to the court.

The Appellate Division's decision is posted on the Internet HERE.

 

Government Technology Webinar update for the week of July 5, 2021

Boost Cyber Resilience and Reduce Organizational Risk: A New Approach to Application Security As government organizations quickly embraced hybrid and multi-cloud technologies at the onset of the pandemic, they also faced an unprecedented rise in malicious security threats, testing the limits of existing monitoring practices. Now that the initial stages of the emergency have passed, organizations need a better way to monitor increasingly complex applications, understand potential security impacts and strategically prioritize response. Click here to Watch Now 

Fight Fraud with Data: How States Can Confront Unemployment Insurance (UI) Abuse Unemployment claims skyrocketed over the past year, as millions of Americans lost their jobs during the pandemic. Sadly, as the number of claims rose, so did instances of unemployment insurance benefits fraud. These cases have resulted in billions of dollars lost. In California alone, officials reported more than $11 billion in improper payments in the first nine months of the pandemic. And these fraudulent claims aren’t just costly – they add complications and delays to already-overwhelmed state benefits systems that ultimately affect regular citizens who are out of work. Each state provides a critical lifeline for individuals and it's incredibly important that these systems perform well and detect fraudulent activity immediately. How can states fight fraud? With better access to data. More comprehensive information on identity and behavior will help stem the tide of fraudulent claims. Click here to Watch Now 

Migrating Government IT to the Cloud with Speed and Confidence State and local governments have always had to juggle a wide range of priorities, from supporting constituents and defending against cyber threats, to modernizing service delivery through digital initiatives. Government IT organizations are increasingly looking to the public cloud to realize their priorities while managing the expanding risk surface. The COVID-19 pandemic accelerated this transformation by increasing the demand for more self-serve and automated government services. But the already-stretched IT teams with limited resources and lower tolerance for risk have struggled to keep up with the increased demands. Click here to Watch Now 

Stop Fraud Before It Happens: Safeguarding Public Benefits Unemployment insurance (UI) fraud may have cost the nation nearly $40 billion last year, experts say, depriving out-of-work Americans of desperately needed help during the COVID-19 crisis. And while state unemployment programs were hardest hit, they weren’t the only targets. Emergency relief programs for rent and utility bills also came under attack. Join Government Technology on May 17 at 11am PT/2pm ET, for an important conversation on how state and local agencies can stop benefits fraud before it happens. You’ll learn how intelligent cloud-based technologies can detect and prevent efforts to create fake user accounts and takeover legitimate accounts – all without slowing down the delivery of critical payments to applicants in need of assistance. Click here to Watch Now 

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

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

 

New York State agency and department audits issued during the week ending July 2, 2021

New York State Comptroller Thomas P. DiNapoli announced the following local government audits were issued during the week ending July 2, 2021 

MUNICIPAL AUDITS 

Town of Albion – Financial Management (2021M-29) (Orleans County) The board generally developed realistic budgets. However, the budgets were not structurally balanced. The board used fund balance to finance operations. This resulted in the four main operating funds’ combined unrestricted fund balance to decline 65% from $1,165,418 as of Jan. 1, 2018 to $403,003 as of Dec. 31, 2020.If the board continues to use fund balance at the current levels, it could deplete fund balance in the general town-wide fund by the end of 2024. The board also did not adopt a written multiyear financial plan and written fund balance policy, which limits transparency.

 

City of Little Falls – Financial Condition (Herkimer County) The council and city officials did not adopt structurally balanced budgets, properly monitor the city’s financial operations or take appropriate actions to maintain the city’s fiscal stability. As a result, the city has significant fiscal stress. Auditors found the former treasurer over-reported fund balance from 2017 through 2019 by more than $200,000, and the council did not receive sufficient financial reports to monitor city finances. In addition, general fund balance declined by 52% to about $244,000 at the end of 2019, and officials had to rely on loans for cash flow. Errors in the 2020 accounting records also make it difficult for officials to accurately assess the city’s current financial condition. Auditors also found officials have not adopted a fund balance policy, multiyear financial plan or capital plan.

 

Town of Pulteney – Financial Condition (Steuben County)The board did not effectively manage the town’s financial condition and was unaware of the town’s true financial position when it adopted budgets because it did not receive accurate financial information from the town supervisor. Auditors found the board failed to implement Comptroller DiNapoli’s prior 2013 audit recommendation to appropriate fund balance only in amounts that are actually available, after retaining a reasonable amount for the next year. The board also appropriated more fund balance to finance operations than was available, resulting in the general and highway funds and water district beginning 2020 with budgetary deficits. The board did not adopt realistic budgets for each fund from 2017 through 2020. In addition, the board also did not adopt a multiyear financial plan, capital plan or fund balance, reserve or budgeting policies.

 

Town of Pulteney – Information Technology (Steuben County)  Town officials did not adequately safeguard town information technology (IT) assets and failed to implement the recommendations Comptroller DiNapoli made in 2013 to adopt comprehensive IT security policies and monitor computer use. As a result, auditors found officials did not adopt key IT policies or a comprehensive IT contingency plan to minimize the risk of data loss or suffering a serious interruption of services. Officials did not monitor the use of IT resources or provide IT security awareness training. Officials also did not disable four unneeded local user accounts. In addition, officials did not enter into a service level agreement with the town’s IT service providers. Sensitive IT control weaknesses were communicated confidentially to officials.

 

SCHOOL DISTRICT AUDITS

Phelps-Clifton Springs Central School District – Network Access (Ontario County and Wayne County) District officials did not ensure that their network access controls were secure. Officials did not regularly review network user accounts and permissions to determine whether they were appropriate or needed to be disabled. As a result, auditors identified 139 unneeded user accounts, 36 unneeded generic or shared user accounts and five user accounts with unnecessary administrator permissions. Officials also did not maintain hardware or software inventory records. In addition, sensitive information technology control weaknesses were communicated confidentially to officials.

 

Tupper Lake Central School District – Records and Reports (Franklin County and St. Lawrence County)District officials did not maintain complete, accurate and timely accounting records and reports to allow officials to effectively manage financial operations and capital projects. Board oversight was lacking. Officials did not provide support for 12 of the 15 balance sheet accounts auditors reviewed. Also, officials did not record journal entries in a timely manner. Only four of the 349 journal entries for 2018-19 and only 60 of the 292 journal entries for 2019-20 were recorded during each year. Officials also did not properly account for and close completed capital projects. As a result, $359,427 in unexpended funds were not used to pay related debt, which could have reduced the district’s tax levies, and $480,853 in project expenditures were not submitted for timely reimbursement. In addition, officials did not submit the 2016-17 through 2019-20 annual financial reports, state aid claim forms and independent audit reports in a timely manner, delaying scheduled state aid payments ranging from $49,607 to $345,221.

 

Consideration of mitigating circumstanses tempers the typical penalty - termination - imposed on an employee who submits a fraudulent medical notes after being absent from work

Although termination is frequently the penalty imposed on a wrongdoer for submitting a fraudulent medical notes to excuse an absence, New York City Office of Tribunals and Hearings Administrative Law Judge Faye Lewis found that in this case it would be excessive. Instead Judge Lewis recommended that the employee be give a penalty of a 60-day suspension without pay.

The employee submitted fraudulent medical notes regarding a seven-day absence from work acknowledged that he altered medical notes to show doctor’s appointments on some of the dates that he was absent from work.

ALJ Lewis credited the employee’s testimony that he fabricated the notes using Write-Out in a panicked, emotional state after his supervisor denied his request for emergency personal leave, which respondent sought because his wife was suicidal and he needed to be home to care for his young daughter.

Although termination is often the penalty imposed for the submission of fraudulent medical notes, the ALJ found that in this case it would be excessive, noting that although the employee’s conduct was a serious error in judgment, his otherwise flawless 16-year record and the extraordinary mitigating circumstances made her recommendation of a penalty of 60 days suspension more appropriate.

Click HEREto access Judge Lewis' findings and recommendation.

 

Appointing an employee to a different position and title following a disabiling injury or disease that was not job related

In a proceeding brought pursuant to §72 of the Civil Service Law, OATH of Administrative Law Judge Ingrid M. Addison recommended that the New York City Police Department [NYPD] place a Traffic Enforcement Agent [TEA] on an involuntary leave of absence, finding the TEA was unfit to perform her job duties due to a medical disability not incurred in the performance of the duties of her position.

The TEA did not dispute the fact that she could not stand or walk for long periods, conceding that effects of an earlier surgery prevented her from performing the duties required of a TEA.

Although the TEA had been temporarily assigned to a clerical job as a reasonable accommodation, the NYPD determined that she was unfit to perform the duties of a TEA. Judge Addison agreed, finding that the NYPD proved the employee was currently unfit to perform the essential duties a TEA due to her disability and recommended the TEA be placed on involuntary leave consistent with the provisions of Civil Service Law §72.5.

The appointing authority of the NYPD adopted the ALJ’s recommendation subject to the approval of NYPD’s pending application for a change in title of the TEA's position to Clerical Associate, presumably as the result of the reclassification of the TEA position then encumbered by the employee to "Clerical Associate."

On a similar note, General Municipal Law §207-c, providing for the payment of salary, wages, medical and hospital expenses of police officers disabled as the result of injuries or illness incurred in the performance of duty, authorizes appropriate municipal officials to transfer a police officer on disability leave pursuant §207-c to another position, including a position with another agency or department where he is able to perform the duties of such position consistent with [1] the applicable civil service law requirements, [2] provided the police officer consents to the change and [3] the agency to which the employee will transfer approves the transfer.

General Municipal Law §207.5, applicable to firefighters on disability leave as the result of suffering an injury or illness incurred in performance of official duties,  similarly authorizes the appointment of the disabled firefighter to another position or title in the same or another agency with the consent of the injured firefighter and the approval of the department or agency involved.

Click HERE to access Judge Addison's decision and recommendation.