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The Artificial Intelligence Power Paradox: An article posted on the Internet by Foreign Affairs Magazine

An article, Can States Learn to Govern Artificial Intelligence—Before It’s Too late? by Ian Bremmer and Mustafa Suleyman was posted on the Internet by Foreign Affairs Magazine on August 16, 2023, opining:

"As artificial intelligence technology continues to advance at a breakneck pace, it will only become better, cheaper, more ubiquitous, and more dangerous, write Ian Bremmer and Mustafa Suleyman in a new essay for Foreign Affairs. 'Its arrival marks a Big Bang moment, the beginning of a world-changing technological revolution that will remake politics, economies, and societies.'”

"This pace of change also makes AI more difficult to regulate.'Artificial intelligence does not just pose policy challenges; its hyper-evolutionary nature also makes solving those challenges progressively harder,' Bremmer and Suleyman argue. 'That is the AI power paradox.' And with policymakers already behind the curve, they warn, there is no time to waste in developing new regulatory frameworks: 'If governments do not catch up soon, it is possible they never will.'"

 Click HERE to access the article.

New York Governor Kathy Hochul releases first statewide cyber strategy

On August 15, 2023, GOVTECH CYBERSECURITY reported that New York Gov. Kathy Hochul Released First Statewide Cyber Strategy

The state’s plan addresses how current and anticipated initiatives support its larger goals of building resilience, preparedness and unification across cybersecurity efforts. The strategy takes a holistic approach across sectors. READ MORE .

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.