New York Public Personnel Law

October 18, 2022

Government Technology Webinars for the week of October 17, 2022

New! Lightning Webinar! Tuesday, October 18, 2022 | 12:00pm Eastern

The Lightning Round: What is Zero Trust?

In The Lightning Round, a new webinar series from Government Technology [WT], WT is explaining emerging concepts and demystifying gov tech one buzzword at a time. If you’ve got 15 minutes, WT will get you up to speed on a key concept in public sector IT. This time, WT is taking on Zero-Trust security – what it is, where it’s headed and what it means for your organization.

Tuesday, October 18, 2022 | 1:00pm Eastern

Managing Cyber Risks: Exploring Cybersecurity as a Managed Service

More and more governments are turning to a managed services model for cybersecurity. But in what cases does cybersecurity-as-a-service make sense? When is it a bad idea? Who’s liable when a breach occurs? What questions should you ask before partnering with a cybersecurity service provider? Join WTfor a valuable webcast tackling these questions and many more.

Tuesday, October 18, 2022 | 2:00pm Eastern

Frictionless Airport Experiences with Virtual Queue Technology

One of the most frustrating aspects of air travel is getting stuck in a long, snaking security line. With virtual queuing software, however, passengers can reserve a spot in line ahead of time and then breeze through when it’s their turn. Cities across the U.S. (and the world) are beginning to implement smart queuing technology at airports to improve the passenger experience and make air travel easier, safer, smoother – and a lot less frustrating. Join WT for a 30-minute webinar on virtual queuing – and how cities are putting it to use.

Wednesday, October 19, 2022 | 1:00pm Eastern

Centering Constituent Concerns with an Environmental, Social and Governance Framework

When people think about improving their communities and addressing the major issues that impact daily life, they look to governments – not corporations or individuals – as the institutions responsible for meeting that mission. Cementing an Environmental, Social, and Governance (ESG) framework into government processes can help agencies standardize the tracking of sustainability metrics and deliver services that exceed public expectations. Join WT for part one of a two-part discussion on how an ESG framework can help organizations build positive and long-lasting relationships with constituents.

Wednesday, October 19, 2022 | 1:00pm Eastern

Centering Constituent Concerns with an Environmental, Social and Governance Framework

Friday, October 21, 2022 | 2:00pm Eastern

Accelerating Improvements in the Constituent Experience with APIs

Seamless user experiences are important to constituents. An Application Programming Interface (API) can help governments bring any service or transaction online in one easy-to-use interface, improving user experiences. Learn how agencies can use APIs to deliver a payment solution for every constituent during WT's webinar.

Sneak Peek at Next Week’s Webinars:

Halloween Special: Register and attend any of these webinars next week to be entered for a chance to win one of five $50 Amazon gift cards!

The Power of Procurement: Smarter Strategies for Controlling Your Spend

Think Like a Hacker: Defend Your Organization Against Ransomware-as-a-Service Attacks

Improving Equity in Public Infrastructure

What is an ESG Framework and How Does It Apply to Governments?

Modernizing Your Network in the Age of Zero Trust

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

October 17, 2022

State, Municipal and School District Audits and Reports issued by the New York State Comptroller during the month of September, 2022

New York State Comptroller Thomas P. DiNapoli issued audits and reports of the State Departments and Agencies, the City of New York, Municipalities, BOCES and School Districts listed below during the month ending September 30, 2022:

Click on the text highlighted in color to access the complete audit report.

State Departments and Agencies and the City of New York

Subject: Accuracy of Medicaid Eligibility Determined by NY State of Health (Follow-Up)
Agency: Health, Department of (Medicaid Program)
Issued: 09/30/22

Subject: Oversight of Afterschool and Summer Youth Employment Contracts (Follow-Up)
Agency: Youth & Community Development, New York City Department of
Issued: 09/30/22

Subject: Empire Plan Members With Dual Family Coverage (Follow-Up)
Agency: Civil Service, Department of
Issued: 09/26/22

Subject: Employee Qualifications, Hiring, and Promotions (Follow-Up)
Agency: Metropolitan Transportation Authority
Issued: 09/26/22

Subject: Housing Trust Fund Corporation: Internal Controls Over and Maximization of Federal Funding for Community Development Block Grant & HOME Investment Partnerships Programs
Agency: Homes and Community Renewal
Issued: 09/16/22

Subject: New York City Department of Homeless Services – Oversight of Contract Expenditures of Institute for Community Living, Inc.
Agency: Social Services, New York City Department of
Issued: 09/16/22

Subject: Selected State Agencies’ Roles in Financial Literacy
Agency: Aging, Office for the
Issued: 09/14/22

Cost Saving Opportunities on Payments of Medicare Part C Claims (Follow-Up)
Agency: Health, Department of (Medicaid Program)
Issued: 09/08/22

Subject: Improper Medicaid Payments for Terminated Drugs (Follow-Up)
Agency: Health, Department of (Medicaid Program)
Issued: 09/08/22

Subject: Improper Medicaid Payments Involving Fee-for-Service Claims for Recipients With Multiple Client Identification Numbers (Follow-Up)
Agency: Health, Department of (Medicaid Program)
Issued: 09/08/22

Subject: Oversight of Construction Management Contracts (Follow-Up)
Agency: Parks, Recreation and Historic Preservation, Office of
Issued: 09/08/22

Subject: Oversight of the Farm-to-School Program (Follow-Up)
Agency: Agriculture and Markets, Department of
Issued: 09/08/22

Subject: Oversight of Building Construction Site Safety
Agency: Buildings, New York City Department of
Issued: 09/01/22

Municipal and School District Audits

Audit No:2022M-89, Release Date: 09/30/2022

Jurisdiction: Irvington Union Free School District - Fixed Assets (School)

Summary: District officials did not properly monitor and account for 63 percent of the 105 fixed assets reviewed that cost $595,118. This can be attributed to District officials last conducting a physical inventory in 2018.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/school-district/2022/09/30/irvington-union-free-school-district-fixed-assets-2022m-89

Audit No:2022M-110, Release Date: 09/30/2022

Jurisdiction: Le Roy Central School District - Reserve Funds (School)

Summary: Although the Board and District officials properly established reserve funds that have balances totaling $3 million, they did not comply with the District's reserve policy or transparently fund reserves. In addition, the Board did not take an active role in managing and overseeing reserve fund activity and did not transparently use or maintain all reserves at reasonable levels.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/school-district/2022/09/30/le-roy-central-school-district-reserve-funds-2022m-110

Audit No:2022M-109, Release Date: 09/30/2022

Jurisdiction: Norfolk Fire District - Board Oversight (Fire)

Summary: The Board did not audit and approve all claims prior to payment, annually audit the Treasurer's records and ensure the Treasurer filed annual financial reports timely.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/fire-district/2022/09/30/norfolk-fire-district-board-oversight-2022m-109

Audit No:2022M-100, Release Date: 09/30/2022

Jurisdiction: Sharon Springs Central School District - Fund Balance (School)

Summary: The Board and District officials did not effectively manage fund balance and need to improve their budgeting practices and be more transparent with District residents and taxpayers.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/school-district/2022/09/30/sharon-springs-central-school-district-fund-balance-management-2022m-100

Audit No:2022M-42, Release Date: 09/30/2022

Jurisdiction: Town of Owego - Shared Services Facility Capital Project (Town)

Summary: The Board did not properly plan, authorize or monitor the Shared Services Facility Capital Project (Project).

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/town/2022/09/30/town-owego-shared-services-facility-capital-project-2022m-42

Audit No:2022M-115, Release Date: 09/23/2022

Jurisdiction: Fly Creek Fire District - Non-Payroll Disbursements (Fire)

Summary: While the District's non-payroll disbursements were supported, for proper District purposes and audited prior to payment, the Board of Fire Commissioners (Board) did not ensure purchases were made at the best price.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/fire-district/2022/09/23/fly-creek-fire-district-non-payroll-disbursements-2022m-115

Audit No:2022M-97, Release Date: 09/23/2022

Jurisdiction: Jamestown City School District - Fund Balance and Reserves (School)

Summary: The Board and District officials did not properly manage fund balance and reserves and need to improve their budgeting practices and transparency with District residents and taxpayers.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/school-district/2022/09/23/jamestown-city-school-school-district-fund-balance-and-reserves-2022m-97

Audit No:2022M-63, Release Date: 09/23/2022

Jurisdiction: Town of Hempstead - Procurement (Town)

Summary: Officials did not always seek competition for professional services and ensure bid specifications were met.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/town/2022/09/23/town-hempstead-procurement-2022m-63

Audit No:2022M-90 Release Date: 09/16/2022

Jurisdiction: Cheektowaga Central School District - Capital Project Management (School)

Summary: The Board and District officials did not manage the Project in a transparent manner and did not provide adequate oversight.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/school-district/2022/09/16/cheektowaga-central-school-district-capital-project-management-2022m-90

Audit No:2022M-87, Release Date: 09/09/2022

Jurisdiction: Binghamton Housing Authority - Oversight of Financial Operations (PA)

Summary: The Board and Director did not provide adequate oversight of financial operations. The Board did not adopt written policies and the Director did not develop proper internal controls over cash disbursements and electronic payments or financial system user access.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/public-authority/2022/09/09/binghamton-housing-authority-oversight-financial-operations-2022m-87

Audit No:2022M-73, Release Date: 09/09/2022

Jurisdiction: Liberty Central School District - Information Technology (School)

Summary: The Board and District officials did not adequately safeguard computerized data from unauthorized use, access and loss. In addition to sensitive IT control weaknesses that were communicated confidentially to officials.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/school-district/2022/09/09/liberty-central-school-district-information-technology-2022m-73

Audit No:2022M-71, Release Date: 09/09/2022

Jurisdiction: Lyons Central School District - Payroll (School)

Summary: District officials did not ensure employees' salaries and wages were always paid accurately.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/school-district/2022/09/09/lyons-central-school-district-payroll-2022m-71

Audit No:2022M-77, Release Date: 09/09/2022

Jurisdiction: Nassau Board of Cooperative Educational Services (BOCES) - Network User Account Controls (School)

Summary: BOCES officials did not establish adequate controls over network user accounts. As a result, BOCES has an increased risk of unauthorized access to and use of the BOCES network and potential loss of important data. In addition to sensitive information technology (IT) control weaknesses that were confidentially communicated to officials.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/boces/2022/09/09/nassau-board-cooperative-educational-services-network-user-accounts-2022m-77

Audit No:2021M-93, Release Date: 09/02/2022

Jurisdiction: Copiague Fire District - Mechanic Shop Operations (Fire)

Summary: The Board and District officials did not adequately monitor the Shop's financial condition or safeguard District assets, resulting in a 36-month operational deficit totaling $676,389. As a result, District taxpayers are paying for the majority of the costs for providing services that do not benefit them.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/fire-district/2022/09/02/copiague-fire-district-mechanic-shop-operations-2022m-93

Audit No:2022M-68, Release Date: 09/02/2022

Jurisdiction: East Bloomfield Central School District - Network and Financial Software Access Controls (School)

Summary: 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.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/school-district/2022/09/02/east-bloomfield-central-school-district-network-and-financial-software

Audit No:2022M-25, Release Date: 09/02/2022

Jurisdiction: Town of Hempstead - Vehicles and Fuel Usage (Town)

Summary: Town officials did not adequately monitor Town vehicles and fuel usage. As a result, Town officials did not know if Town vehicles and fuel were only used for Town business.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/town/2022/09/02/town-hempstead-vehicles-and-fuel-usage-2022m-25

Audit No:2022M-82, Release Date: 09/02/2022

Jurisdiction: Town of Saratoga - Budgeting and Fund Balance Management (Town)

Summary: The Board did not adopt realistic budgets or effectively manage fund balance.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/town/2022/09/02/town-saratoga-budgeting-and-fund-balance-management-2022m-82

Audit No:2022M-67, Release Date: 09/02/2022

Jurisdiction: Union Springs Central School District - Safeguarding of Personal, Private and Sensitive Information on Mobile Computing Devices (School)

Summary: District officials did not adequately safeguard MCDs to help prevent unauthorized access to PPSI. In addition to sensitive information technology (IT) control weaknesses that were communicated confidentially to officials.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/school-district/2022/09/02/union-springs-central-school-district-safeguarding-personal-private-and

Audit No:2022M-75, Release Date: 09/02/2022

Jurisdiction: Worcester Central School District - Fund Balance Management (School)

Summary: The Board and District officials did not effectively manage the District's fund balance.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/school-district/2022/09/02/worcester-central-school-district-fund-balance-management-2022m-75

October 14, 2022

Former fire officials charged with the theft of more than $11,000 from Volunteer Fire Department

In a press release dated October 12, 2022, set out below, New York State Comptroller Thomas P. DiNapoli, Allegany County District Attorney Keith Slep and the New York State Police announced the arrests of Ronda (Brundage) Kish and Marion Brundage for allegedly stealing $11,276 from the Oramel Volunteer Fire Department, Belfast, New York.*

Ronda Kish was charged with Grand Larceny in the 3rd Degree, Corrupting the Government in the 3rd Degree and Offering a False Instrument for Filing in the 1^st Degree. Marion Brundage was charged with Grand Larceny in the 4^thDegree and Corrupting the Government in the 3^rd Degree. Kish served as the department’s Treasurer and her former sister-in-law, Brundage was its Secretary and First Assistant Chief. The arrests were the result of a joint investigation between Comptroller DiNapoli’s Office, the Allegany County District Attorney’s Office and the New York State Police.**

“These two officials allegedly used money meant for the protection of their community as their own personal bank account,” DiNapoli said. “My thanks to Allegany County District Attorney Slep and the State Police for partnering with my office to make sure that those who engage in public corruption are found out and brought to justice.”

From 2016 to 2020, Ronda Kish allegedly stole $8,675 from the Oramel Fire Department by making unauthorized cash withdrawals and writing checks to herself for supposed reimbursements that had no receipts or approval from the Department’s Board. Kish used the money to pay personal expenses, including numerous credit card bills.

Kish abruptly quit as Treasurer after the Department’s Board began to ask questions about the money. The Oramel Fire Department bank account was empty when she quit. Local officials brought their concerns to Comptroller DiNapoli’s office and the Allegany County DA.

During the same time period, Marion Brundage allegedly stole $2,601 by writing checks to herself for supposed reimbursements.

Kish and Brundage were arraigned before Judge David Szucs in the Town of Caneadea Court and are scheduled to appear again in court on November 9. 2022.

* N.B. These charges are accusations and the individual is presumed innocent unless and until proven guilty.

** As noted in previous NYPPL reports of such alleged acts of misconduct, there is a term for such breaches of the public trust, "jobbery." Mirriam-Webster defines "jobbery as "the improper use of public office or conduct of public business for private gain".

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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 filing a complaint online at investigations@osc.ny.gov, by calling the toll-free Fraud Hotline at 1-888-672-4555, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

First Amendment free speech rights of employees depends on the nature of the employee's speech

The plaintiffs [Plaintiffs] in the action appealed the dismissed their First Amendment retaliation claim under 42 U.S.C. §1983 against the County of Rockland and additional named defendants [Defendants]. Plaintiffs alleged that Defendants terminated them in retaliation for allegations made concerning the Defendants. The federal district court concluded that Plaintiffs did not engage in speech as a private citizen and thus their First Amendment retaliation claim failed as a matter of law. The United States Circuit Court of Appeals for the Second Circuit agreed.

Citing Agosto v. N.Y.C. Dep’t of Educ., 982 F.3d 86, the Circuit Court opined in order to prevail, a government employee or contractor must establish that "(1) his speech was protected by the First Amendment; (2) he suffered an adverse employment action by the [employer]; and (3) there was a causal connection between the adverse action and his speech."

Further, said the Circuit Court, to determine whether a public employee speaks as a citizen for purposes of a First Amendment retaliation claim, courts ask whether (1) “the speech falls outside of the employee’s official responsibilities,” and (2) “a civilian analogue exists.”

Such a determination requires an examination of “the nature of the plaintiff’s job responsibilities, the nature of the speech, and the relationship between the two”. The speech at issue can be pursuant to "a public employee’s official job duties even though it is not required by, or included in, the employee’s job description, or in response to a request by the employer.”*

Here, opined the Circuit Court of Appeals, "the uncontroverted evidence in the record demonstrates that [Plaintiff] engaged in speech as an employee, rather than as a [private] citizen." Accordingly, the Circuit Court held "the district court properly granted summary judgment for [Defendants] on the [Plaintiffs'] First Amendment retaliation claim."

* The Circuit Court noted that in Lane v. Franks, 573 U.S. 228, the Supreme Court had emphasized that “the mere fact that a citizen’s speech concerns information acquired by virtue of his public employment does not transform that speech into employee -- rather than citizen -- speech .... the critical question ... is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.”

Click HEREto access the Second Circuit's decision.

October 13, 2022

Summaries of recent personnel disciplinary decisions posted by the New York City Office of Administrative Trials and Hearings [OATH]

Use of excessive force - OATH Administrative Law Judge Julia H. Lee recommended termination of employment for a correction officer who used excessive force when he struck a restrained inmate in the face and submitted a false and misleading use of force report. While the inmate had thrown food at the officer through an open slot of his cell and later alluded to there being feces in the food, Judge Lee found that neither the inmate’s verbal abuse and threatening language nor the food-throwing justified the officer’s strike to his face. ALJ Lee also found that the officer’s statement in his use of force report that the inmate was trying escape from escort officers was inaccurate as video evidence demonstrated that the inmate was physically compliant throughout the extraction and escort. Click HERE to access Judge Lee's decision.

Excessive absenteeism - OATH Administrative Law Judge Kara J. Miller recommended termination of employment for a non-competitive class employee charged with excessive absenteeism under section 75 of the Civil Service Law, finding that the employee was continuously absent for more than 295 days following a workplace injury when a bathroom stall door fell on her. In her report and recommendation, Judge Miller rejected the employee’s argument that the proceeding should be converted to a Civil Service Law section 71 proceeding involving a determination of permanent incapacitation due to disability ALJ Miller found that the Court of Appeals has acknowledged that the applicability of section 71 to non-competitive class employees remains an open question for the state legislature to resolve and that even if section 71 were applicable to non-competitive class employees, it does not provide for a hearing prior to termination. Click HERE to access Judge Miller's decision.

Off-duty misconduct - OATH Administrative Law Judge Michael D. Turilli recommended dismissing an off-duty misconduct charge against a correction officer who was arrested for assaulting his wife. The criminal charges against the correction officer had been dismissed prior to the trial before OATH and the officer’s wife declined to testify. ALJ Turilli found that the testimony of the arresting police officer, who recounted hearsay statements made by the wife at the scene over three years ago, was not sufficiently reliable to sustain the charge. Click HERE to access Judge Turilli's decision.

Leaving work early - OATH Administrative Law Judge Kevin F. Casey recommended a 45-day suspension for a hospital service aide for leaving work early and moving supplies, including personal protective equipment, from a nurses’ station to a closet during the COVID-19 pandemic without documenting his actions. ALJ Casey found that the hospital had failed to prove that the service aide stole hospital property, stored alcohol on the hospital premises, refused to surrender his keys, violated the Conflicts of Interest Law, or intimidated co-workers into signing a petition. Click HERE to access Judge Casey's decision.

Submitted misleading report - OATH Administrative Law Judge Joycelyn McGeachy-Kuls found that a correction officer’s use of force during an escort of an inmate was appropriate but that the officer had submitted a false or misleading report about the incident. The Department of Correction had charged the officer with using excessive force against an inmate while he was being removed from a cell. Judge McGeachy-Kuls found that the officer’s force was not excessive because the inmate was not compliant. However, ALJ McGeachy-Kuls found that the officer submitted a false or misleading report about the incident and recommended a 30-day suspension. Click HERE to access Judge McGeachy-Kuls' decision.

False "use of force" report - OATH Administrative Law Judge Christine Stecura recommended that a correction officer be suspended for 60 days for using excessive force and submitting a false and misleading use of force report about an incident in which he struck an inmate in the face. ALJ Stecura rejected the officer’s argument that force was appropriate because the inmate had a cane and had made a threatening gesture. Click HERE to access Judge Stecura's decision.

Sleeping while on duty - OATH Administrative Law Judge Julia Davis recommended that a Special Officer in the Department of Citywide Administrative Services be suspended for 20 days for making false statements and sleeping while on duty, both of which the Special Officer admitted during trial. ALJ Davis found that DCAS had failed to prove that the Special Officer slapped a commuter on her buttocks because the complainant’s identification of the Special Officer as the perpetrator was not sufficiently reliable. Click HERE to access Judge Davis' decision.

A Reasonable Disciplinary Penalty Under the Circumstances - The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. For more information click HERE or click to Read a FREE excerpt (requires Adobe Reader).

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.

NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.