Seeking a court order in the nature of a Writ of Prohibition

In two actions initiated by Raymond A. Tierney, District Attorney, Suffolk County, [Petitioner] pursuant to CPLR Article 78 in the nature of prohibition Petitioner sought an order prohibiting Chris Anne Kelley, a New York State Supreme Court Justice, Suffolk County [Respondent] from enforcing [1] an order dated July 23, 2021, issued in an action entitled People v Portillo, then pending before Justice Kelley [Indictment No. 179/20] and [2] a second order dated July 23, 2021, issued in an action entitled People v Prince, also then pending in Justice Kelley's court [Indictment No. 1064/19].

The writ of prohibition is one of number of the ancient “common law” writs and is issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction."*

The Appellate Division dismissed both Article 78 actions "on the merits," without costs or disbursements.

Citing Matter of Holtzman v Goldman, 71 NY2d 564 and other cases, the Appellate Division explained that "[b]ecause of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a court -- in cases where judicial authority is challenged -- acts or threatens to act either without jurisdiction or in excess of its authorized powers".

Further, said the court, "Petitioner has failed to demonstrate a clear legal right to the relief sought."

* Other such ancients writs include the writ of mandamus, granted by a court to compel an official to perform "acts that officials are duty-bound to perform;" the writ of injunction - a judicial order preventing a public official from performing an act; the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of “quo warranto” [by what authority]. The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient writs.

Click HEREto access the decision in People v Portillo posted on the Internet.

Click HEREto access the decision in People v Prince posted on the Internet.

 

 

New York State Comptroller Thomas P. DiNapoli announced the following school district audits were issued Friday, September 9, 2022.

The following school district audits were issued during the week ending Friday, September 9, 2022.

Click on the text in COLOR to access the full text of the audit on the Internet. 

Batavia City School District – Information Technology Equipment Inventory (Genesee County)

District officials did not appropriately track and inventory IT equipment. They did not adopt a comprehensive written policy for establishing and maintaining IT equipment inventory or maintain a complete and accurate IT equipment inventory or perform an annual physical inventory. Officials could not locate 229 staff computers and 62 tablets and paid approximately $17,000 in annual service fees in the 2021-22 fiscal year for missing devices.

 

East Bloomfield Central School District – Network and Financial Software Access Controls (Ontario County)

District officials did not ensure that network and financial software access controls were adequate to protect district IT systems and data from unauthorized access or loss. Sensitive network and financial software access control weaknesses were communicated confidentially to officials. In addition, the district had 250 unneeded network user accounts, including two with administrative permissions, and the assistant superintendent for business and operations had excessive administrative permissions in the financial software, which allowed them to potentially control all phases of financial transactions. Officials paid BOCES $539,644 for information technology services in 2020-21 without defining roles and responsibilities for services. As a result, the roles and responsibilities of each party may not be understood by all parties resulting in cybersecurity gaps.

 

Indian River Central School District – Financial Condition Management (Lewis County)

While the board and district officials made some progress in implementing prior audit recommendations, they must continue to improve their financial condition management, otherwise more taxes will be levied than are needed to fund operations. From 2017-18 through 2020-21, the board underestimated general fund revenues by $68.8 million and overestimated appropriations by $29.5 million. Additionally, the district’s reported surplus fund balance as of June 30, 2021 was 10%, exceeding the statutory limit of 4%. When unused appropriated fund balance is added back, the recalculated surplus fund balance totals $27.8 million, exceeding the statutory limit by $24 million

.

Milford Central School District – Fund Balance Management (Otsego County)

The board and district officials did not properly manage fund balance in accordance with statute. As of June 30, 2021, surplus fund balance exceeded the 4% statutory limit by approximately $600,000, or 5.4 percentage points. When the projected unused appropriated fund balance of $720,000 is added back, the recalculated surplus fund balance exceeded the statutory limit by $1.3 million, or 11.9 percentage points. The board and district officials did not develop and adopt a written multiyear financial plan or fund balance policy.

 

Minisink Valley Central School District – Medicaid Reimbursements (Orange County)

The district did not maximize Medicaid reimbursements by claiming for all eligible Medicaid services provided. Claims were not submitted for reimbursement for at least 3,083 eligible services totaling $187,932. Had these services been claimed, the district would have realized revenues totaling $93,966 (50% of the Medicaid reimbursements). Between July 1, 2020 and Dec. 31, 2021, the district paid a third-party vendor $54,996 to process the district’s Medicaid claims. However, officials did not provide the vendor with all of the documentation needed for the vendor to properly file all Medicaid claims and did not adequately oversee the vendor to ensure Medicaid reimbursements were maximized.

 

Tuxedo Union Free School District – Payroll and Leave Accruals (Orange County)

District officials did not ensure employees’ payroll payments and leave accruals were accurate, properly approved and supported. District officials overpaid (or potentially overpaid) 30 employees a total of $113,564 in payroll and leave accrual payments, including $47,673 in overpayments to the Interim Superintendent. Thirty-six of the 104 full-time and part-time employees were not covered under a collective bargaining agreement, employment contract or board resolution. As a result, payroll staff were unable to interpret what benefits employees are entitled to receive and may be improperly providing benefits to employees.

 

Union Springs Central School District – Safeguarding of Personal, Private and Sensitive Information on Mobile Computing Devices (Cayuga County)

District officials did not adequately safeguard mobile computing devices (MCDs) to help prevent unauthorized access to sensitive information. Auditors also found that district officials did not establish sufficient procedures, such as establishing a district-wide data classification matrix and inventorying sensitive information in their possession, to help ensure proper safeguarding. Fourteen of the 20 district-owned MCDs auditors examined contained information that was not adequately safeguarded.

 

Wappingers Central School District – Professional Services (Dutchess County)

District officials did not always seek competition or comply with the district’s procurement policy when procuring professional services. District officials did not use competitive methods, as required to select 40 professional service providers who were paid more than $5.1 million during the audit period.

 

Worcester Central School District – Fund Balance Management (Otsego County)

The board and district officials did not effectively manage fund balance. The board annually overestimated appropriations from 2016-17 through 2020-21 by an average of $943,000, or 8%.

District officials budgeted for operating deficits totaling $4.7 million from 2016-17 through 2020-21, but experienced net operating surpluses totaling $1.2 million, an operational shift of $5.9 million. The district’s surplus fund balance exceeded the 4% statutory limit in each of the last five fiscal years by $490,000 to $1.8 million, or 4.3 to 15.7 percentage points. Real property tax levies were higher than necessary, in part, because surplus fund balance in excess of the statutory limit was maintained.

 

Wynantskill Union Free School District – Purchasing (Rensselaer County)

District officials could not always support that competition was sought when purchasing goods and services that fell below the statutory bidding thresholds. Officials did not develop clear guidance in procedures to seek competition for purchasing goods and services that were not required to be competitively bid. They also did not follow the district’s purchasing policy for 25 purchases  totaling $53,883, or adequately document they sought competition for 17 purchases totaling $27,231. Further, contract award and pricing information was lacking on seven purchases made through state contract vendors, and the district should have paid $1,028 less for three purchases.

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Track state and local government spending at Open Book New York. Under State Comptroller DiNapoli’s open data initiative, search millions of state and local government financial records, track state contracts, and find commonly requested data.  

County commissioner in New Mexico removed from office under color of Section 3 of the 14th Amendment to the Constitution of the United States

Section 3 of the Fourteenth Amendment to the Constitution of the United State provides as follows:

§3. "No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability."

New Mexico's Albuquerque Journal reporter Ryan Boetel notes that a state judge in New Mexico removed a county commissioner found guilty of participating in the January 6, 2022 invasion of the Capitol of the United States in federal district court under color of said §3.

With respect to public officers of New York State and its political subdivisions, the State Attorney General has opined that a public officer appointed for fixed statutory term may be removed prior to the expiration of the term only for cause and is entitled to due process protection prior to dismissal [Opinions of the Attorney General 88-49]. In the event an individual is "not entitled to a hearing under Civil Service Law, §75 or any other statute," the Attorney General further observed "a hearing must derive from the due process clause of the Constitution (NY Const, Art 1, §6; US Const, 14th Amendment)."

The Attorney General explained that "... courts have held that a public employee threatened with dismissal is entitled to due process protections if he has acquired a liberty or property interest in his employment; that is, a legitimate entitlement to continued employment," citing Economico v Village of Pelham, 50 NY2d 120, Elrod v Burns, 427 US 347, and Board of Regents v Roth, 408 US 564. 

Opinions of the Attorney General 88-49 also notes "The U.S. Supreme Court has stated that the sufficiency of a claim of entitlement must be made by reference to appropriate State or local laws", citing Bishop v Wood, 426 US 341. 

Click HERE to access the full text of Mr. Boetel's article published in the Albuquerque Journal posted on the Internet.

 

School District's motion to dismiss the causes of action alleging a student was sexually molested by an employee of the school district denied

In this action to recover damages, the complainant [Plaintiff] alleged that he was sexually molested by his guidance counselor, who was an employee or special employee of the defendant [School District].  Supreme Court denied School District's motion to dismiss the causes of action alleging "negligence, gross negligence, negligent hiring, retention, supervision, and direction, and breach of fiduciary duty insofar as asserted." 

The School District appealed the Supreme Court's ruling.

Explaining that on a motion to dismiss for failure to state a cause of action under CPLR §3211(a)(7) the Appellate Division said that a court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" and denied School District's appeal.*

The amended complaint alleged, among other things, that the School District had prior notice of the guidance counselor's propensity to sexually molest students and that the School District "nevertheless permitted the guidance counselor to meet one-on-one with students, including the Plaintiff, and that the School District thereby negligently failed to prevent the guidance counselor from sexually molesting the Plaintiff."

Further, said the Appellate Division, Supreme Court properly found that the Plaintiff sufficiently pleaded causes of action alleging negligence, gross negligence, and negligent hiring, retention, supervision, and direction, citing Moskowitz v Masliansky, 198 AD3d 637 and other decisions.

* The Appellate Division noted "[c]auses of action alleging negligent hiring, negligent retention, or negligent supervision are not statutorily required to be pleaded with specificity".

Click HEREto access the Appellate Division's decision.

Government Technology Webinars scheduled to be held during the week ending September 3, 2022

Wednesday, August 31 | 1:00pm Eastern

Enhancing Voice and Digital Engagement with Communications Platform as a Service Solutions 

The ability to reach and respond to constituents and students where they are, on whatever device they’re using, in real time is a differentiating factor that elevates the engagement experience for state and local government and education. Communications Platform as a Service (CPaaS) solutions help agencies build upon their existing applications to create access to all the popular communication methods the public wants to use. Join us for a 30-minute webinar on how organizations can use CPaaS solutions to integrate new communications tools into their workflow quickly and easily.

Click here to Register to attend 

 

Wednesday, August 31 | 2:00pm Eastern

Heightened Visibility is Key to Efficient Threat Detection and Risk Mitigation 

Local and state governments must constantly reevaluate their security strategies to ensure they’re up to the task of combatting today’s evolving threat landscape. Recent survey results demonstrate what agencies are most concerned about and what they are doing to mitigate risks. To unpack the results of the latest research, register to reserve your spot!

Click here to Register to attend 

 

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.