In a defamation action seeking damages, courts distinguish facts from opinions

Plaintiff commenced this defamation action seeking damages for statements made by Defendant in a letter to the New York State Inspector General [IG] about Defendant's concerns that Plaintiff, as a member of the New York State Joint Commission on Public Ethics, and others, were disclosing confidential information to the media.

Defendant answered the complaint and asserted a counterclaim seeking to recover damages under the anti-strategic lawsuits against public participation statutes*. Plaintiff moved to dismiss Defendant's counterclaim, and Defendant moved, inter alia, to dismiss Plaintiff's complaint. Defendant appeals and Plaintiff cross-appeals from an order that denied both motions.

The Appellate Division agreed with Defendant that Supreme Court should have granted her motion insofar as it sought dismissal of the complaint pursuant to CPLR §3211(a), subdivisions (7) and (g) and modified Supreme Court's order accordingly. The court, noting that there "is no dispute that [Defendant] established on her motion that the action involves "public petition and participation", also concluded that Plaintiff, in opposition to the motion, "failed to demonstrate that the action has a substantial basis in law" inasmuch as Defendant's statements in question constitute nonactionable expressions of opinion.

The Appellate Division explained that  "In order for the challenged statements to be susceptible of a defamatory connotation, they must come within the well established categories of actionable communications" and falsity is a necessary element of a defamation cause of action as only "facts" are capable of being proven false. Accordingly, said the court, "it follows that only statements alleging facts can properly be the subject of a defamation action." Citing  Mann v Abel, 10 NY3d 271, [cert denied 555 US 1170], the Appellate Division said "whether a particular statement constitutes an opinion or an objective fact is a question of law".

Defendant's letter, said the court, constitutes "a statement of opinion ... accompanied by a recitation of the facts upon which it is based" and Defendant's allegations used phrases such as "appear to be" and "[t]o the extent that there is evidence," while setting forth the facts upon which such allegations were based.

Further, the Appellate Division noted the letter was addressed to the IG urging the commencement of an investigation and said that in reviewing the full context of the communication, "including its tone and purpose," it concluded that Defendant "set out the basis for [her] personal opinion, leaving it to the [IG] to evaluate it for [herself]", citing Brian v Richardson, 87 NY2d 46.

* See Civil Rights Law §§70-a and 76-a.

Click HERE to access the opinion of the Appellate Division posted on the Internet.

 

Entering a plea of Nolo Contendere in an administrative disciplinary action

Nolo Contendere is Latin for "I will not contest it."

A decision of the Commissioner of Education involving "student discipline" in which the Commissioner considered a plea of “no contest” is Decisions of the Commissioner 16,385, posted on the Internet at http://www.counsel.nysed.gov/Decisions/volume52/d16385.html. Here the Commissioner noted "no contest” pleas in student disciplinary proceedings ... have been upheld as valid when entered into knowingly and voluntarily."

Other decisions in which the Commissioner considered a plea of “no contest” include: Decision No. 16,101; Decision No. 15,841; Decision No. 15,122; Decision No. 14,529; Decision No. 14,305; and Decision No. 14,217 

With respect to "settling an employee disciplinary action," the decision in Taylor v Cass, 505 NY2d 929, indicates that the terms and conditions of such a settlement authorizing the termination of the employee without notice and hearing are strictly construed.

The stipulation of settlement at issue provided that Taylor would be terminated "without another hearing" if, during his disciplinary probationary period, Taylor's job performance, in the opinion of his supervisor, was "adversely affected" by his "consumption of alcohol".

Served with a "notice of infraction" of the terms of his disciplinary probation, Taylor was summarily terminated from his position for "failing to give a fair day's work" and "sleeping during [the] scheduled working hours" without a disciplinary hearing. 

Significantly, the letter of termination sent to Taylor failed to state that intoxication was the reason for his dismissal. The decision by the Court of Appeals indicated that Taylor was terminated "solely for the reasons set forth in the notice of infraction", i.e., "failing to give a fair day's work" and "sleeping during [his] scheduled working hours".

In the words of the Court of Appeals, "Under the circumstances, [Taylor] should not have been dismissed without a hearing...."

It has been suggested that in the event an employee served with charges in an administrative disciplinary action merely enters a plea of nolo contendere in contrast to entering into a formal agreement of  "settlement" of the disciplinary action, the appointing authority should proceed with the disciplinary action and conduct it as a disciplinary hearing being held in absentia.

Indeed, Section 75.2 of the Civil Service Law, in pertinent part, provides “the burden of proving incompetency, and, or misconduct shall be upon the person alleging the same.”

In other words, it appears the failure of an employee to offer an explanation or a defense does not absolve the employer of its obligation to prove the charges of incompetency, and, or, misconduct served on an employee in an administrative disciplinary proceeding before imposing disciplinary sanctions absent the parties mutually agreeing to "settling the matter".

As  to conducting disciplinary hearings in absentia, in Mujtaba v NYS Dept. of Education, 148 A.D.2d 819, the Appellate Division held “due process does not require that [the charged individual] be present at an administrative hearing, but rather requires notice of the charges and an opportunity to be heard.” What also is required, however, is that the appointing authority made a diligent effort to contact the employee to inform him or her that the disciplinary hearing had been scheduled and would take place even if the individual fails to appear and participate.

In contrast, an accused who had pleaded guilty to a criminal charge, or who had pleaded nolo contentere to the criminal charge, is deemed to "having been found guilty" of that criminal charge. However, although a plea of nolo contendere has the same immediate effect as a guilty plea, it cannot be used against the individual in another cause of action.

Click HERE to access a LawBlog focusing on Nolo Contendere posted on the Internet.

New York State Public Personnel Law e-books published by BookLocker

The Discipline Book - Click HERE for information

A Reasonable Disciplinary Penalty - Click HERE for information

DEA announces new leadership appointments

DEC Names Chief Resiliency Officer, Director of Indian Nation Affairs, Regional Director for Region 7, Director of Media Relations

New York State Department of Environmental Conservation (DEC) Commissioner Basil Seggos today announced four appointments to new and existing leadership positions with DEC's Executive and Regional teams.

"I am excited to announce key DEC leadership additions and changes that are critical to sustaining the success of New York's environmental protection policies and programs," Commissioner Seggos said. "Suzanna Randall and Peter Reuben are bringing extensive experience and skills to two new and critically important agency roles that focus on enhancing resiliency and strengthening relationships with Indigenous Nations. Dereth Glance will continue bringing her energy and passion to a different role leading DEC's presence in Central New York and the Southern Tier, and Cecilia Walsh will help guide our extensive engagement with the media to inform the public. DEC is strengthening our team to bolster our efforts to meet the unique challenges and opportunities before New York State."

Suzanna Randall was appointed DEC's first Chief Resiliency Officer. Randall will be responsible for administering the State's landmark Clean Water, Clean Air and Green Jobs Environmental Bond Act of 2022, leading the development and implementation of all major components of the program. Randall most recently served as Deputy Director of Project Delivery for the Office of Resilient Homes and Communities, formerly the Governor's Office of Storm Recovery. Additional experience includes serving as Special Projects and Sustainability Coordinator with the New York State Environmental Facilities Corporation, where she led the award-winning Green Innovation Grant Program, and Water Resources Planner at Philadelphia Water Department's Office of Watersheds.

Peter Reuben was named the first-ever Director of DEC's Office of Indian Nation Affairs. Reuben has more than a decade of experience with DEC, most recently as the Regional Spills Supervisor in Western New York, as well as more than 15 years working closely with Indian Nations on a wide range of environmental projects and issues. Previously, Reuben served as Brownfield Program Manager for the Seneca Nation of Indians Environmental Protection Department, worked as a consultant to the Haudenosaunee Environmental Task Force, and Tonawanda, Seneca, and Tuscarora Nations. In 2012, Peter was elected Vice-Chair of the U.S. Environmental Protection Agency's Tribal Waste and Response Assistance Program's National Steering Committee.

Dereth Glance was named Regional Director in DEC's Region 7, which covers Broome, Cayuga, Chenango, Cortland, Madison, Onondaga, Oswego, Tioga, and Tompkins counties. Glance most recently served as DEC's Deputy Commissioner for Environmental Remediation and Materials Management, where she oversaw DEC's divisions of Environmental Remediation, Materials Management, and Mineral Resources. Prior to joining DEC, Glance served as Executive Director of the Onondaga County Resource Recovery Agency and was appointed by President Obama as U.S. Commissioner at the International Joint Commission. Glance's experience also includes work with Citizens Campaign for the Environment, New York State's Great Lakes Basin Advisory Council, Clean Water Network, and Onondaga Lake Partnership Outreach Committee, among other roles.

Cecilia Walsh was appointed DEC's Director of Media Relations. Walsh will oversee DEC's Press Office to ensure the effective communication of the agency's actions to statewide and national media outlets and the public. Most recently, Walsh served as Project Coordinator for the Cannabis Education and Employment Development Program with the New York State Department of Labor. Previously, Walsh was Director of Communications with the Albany County District Attorney's Office for more than a decade where she oversaw all media and public relations for the office and District Attorney.

 

Municipal and School Audits released by New York State Comptroller

On August 11, 2023 New York State Comptroller Thomas P. DiNapoli announced the following local government and school audits were issued.

 

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

 

Town of Ticonderoga – Capital Project Management (Essex County)

The board did not provide adequate oversight and management of capital projects. Town officials did not monitor activity for eight projects reviewed (with board-authorized budgets totaling $20.8 million) to ensure that costs were kept within the authorized budget. In addition, budget modifications totaling $3.2 million were not recorded in the accounting records.

 

Town of White Creek – Disbursements and Annual Financial Reports (Washington County)

The supervisor did not provide proper oversight of disbursements or ensure the required annual update documents (AUD) were filed in a timely manner. Auditors reviewed 199 disbursements totaling $516,716 and determined the supervisor did not review any of the disbursements to ensure they were accurate and made for appropriate purposes and did not authorize the 44 electronic fund transfers or sign the 155 checks. Instead of signing the checks, a rubber signature stamp was used, which is not permitted. The supervisor also did not review canceled check images to ensure they agreed to the board-approved abstract.

 

Brocton Central School District – Financial Management (Chautauqua County)

The board and district officials did not properly manage fund balance and reserves. The board and officials overestimated budgetary appropriations by an annual average of $1.3 million (8%) and allowed surplus fund balance to exceed the statutory limit as of June 30, 2022 by 7 percentage points, or $1.2 million. They also could not demonstrate that six reserves with balances totaling more than $2.2 million were funded or used as management intended and did not establish an adequate reserve fund policy or develop annual reserve reports.

 

Clarendon Fire Company – Financial Activities (Orleans County)

The treasurer did not provide the board with sufficient information to monitor the company’s financial activity and company officials did not always provide the treasurer with sufficient information to record financial transactions. The treasurer was not trained or made aware of his financial reporting duties and requirements. Officials also did not maintain adequate supporting documentation for cash receipts, and fundraising cash receipts, totaling $86,208, were not reported to the board, as required. Auditors found credit card payments, totaling $24,552, that were not properly supported, recorded, or reported and the treasurer paid credit card bills late. As a result, the company incurred late fees and interest charges, totaling $1,157.

 

Brocton Central School District – Claims Audit (Chatauqua County)

Auditors found that claims were not properly audited before payment. As a result, there was an increased risk that improper or unsupported payments could have been made and may not have been detected and corrected. The board did not provide the claims auditor with adequate guidance to perform her duties, leading auditors to find that of the 184 claims reviewed totaling $1.9 million, 100 claims totaling approximately $141,000 should not have been approved for payment because they had one or more exceptions.

 

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

The board and district officials did not effectively manage the district’s fund balance. The board overestimated appropriations from the 2019-20 through 2021-22 fiscal years by an average of $617,000, or 6%. In addition, surplus fund balance exceeded the 4% statutory limit in all three fiscal years by approximately $1.1 million (10.1 percentage points) to $2 million (21 percentage points) and four of the district’s 10 reserves were not reasonably funded, or used to pay related expenditures, during the three fiscal years. For example, the balance of $508,923 in the retirement contribution for employees reserve was sufficient to cover expenditures for at least four years.

 

Village of Canaseraga – Claims Audit (Allegany County)

Although the 300 claims auditors reviewed were for appropriate village purposes, certain claims were not adequately supported or properly audited and approved before payment. Of the 300 claims reviewed totaling approximately $758,000, 205 (68%) claims totaling approximately $656,000 had one or more exceptions and should not have been approved for payment. Auditors found that: claims totaling approximately $588,000 were paid without evidence of being audited or reviewed by the board, claims totaling approximately $114,000 were paid prior to scheduled monthly board meetings and were not audited prior to payment, claims totaling approximately $24,000 did not have departmental approval, and 20 claims totaling approximately $4,400 were not mathematically accurate when paid. In addition, board members did not know what their claims audit responsibilities were, nor did they take training to learn what their claims audit responsibilities were.

 

###