Appealing an administrative determination

In Matter of Saratoga Economic Development Corporation [Corporation] v State of New York Authorities Budget Office [NYABO], Corporation challenged NYABO's administrative determination requiring Corporation to comply with the Public Authorities Accountability Act of 2005.

In Matter of Smith v City of Norwich, 205 AD3d 140 the Appellate Division held that in the event an administrative determination is made where an evidentiary hearing is not required by law, court review is limited to whether the administrative determination had a rational basis and was not arbitrary and capricious.* 

Further, in Matter of Froehlich v New York State Dept. of Corr. & Community Supervision, 179 AD3d 1408, the court said "So long as [the administrative determination] has a rational basis, [courts] will sustain the [administrative] determination, even if it would have also been rational for the administrative agency to have reached a different result."

In contrast, observed the Appellate Division, in the event an agency is engaged in pure statutory interpretation, a court "need not pay deference to the agency's interpretation and may instead undertake that analysis anew." Where, however, "the interpretation of a statute or its application involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom", the Appellate Division, citing Matter of Peyton v New York City Bd. of Stds. & Appeals, 36 NY3d 271, noted courts "regularly defer to the governmental agency charged with the responsibility for administration of the statute".

The Appellate Division then opined the courts defer to an agency's statutory interpretation "where the general statutory language and legislative history indicate that the Legislature intended to adopt a broad policy approach to the subject matter of the statute, delegating to the administrative agency comprehensive, interpretive and subordinate policy-making authority, interstitially to 'fill in the blanks' consistently with the over-all policy of the statute, either by administrative rule making or case-by-case decisions."

Finding that NYABO rationally concluded that Corporation is a local authority in that there is a "close relationship between Corporation and local governments" and Corporation "is the type of entity that the Legislature intended to subject to the provisions of the [Public Authorities Reform Act, Laws of 2009, Chapter 506]", the Appellate Division ruled that NYABO's determination was rational and therefore entitled to deference, rejecting Corporation's reliance on Matter of Farms First v Saratoga Economic Dev. Corp., 222 AD2d 861.**

Reversing the judgment of Supreme Court "on the law" and without costs, the Appellate Division dismissed Corporation's petition, and "... declared that [Corporation] is a local authority subject to the Public Authorities Law".

* In a footnote the Appellate Division explained that where no administrative hearing is held, "the agency may submit an employee's or official's affidavit to explain the information that was before the agency and the rationale for its decision, and courts may consider such an affidavit even though it was not submitted during the administrative process," citing Matter of Hammonds v New York State Educ. Dept., 206 AD3d 1334.

** The Appellate Division noted that in support of the proposition that it is not a local authority, Corporation cited Matter of Farms First, contending it was an independent entity formed by private businessmen to further their own interests, has never been furnished offices at County expense, has never had a County employee serve on its board and receives some of its funding from private individuals and corporations.

Click HERE to access the Appellate Division's decision posted on the Internet.

 

Plaintiff's claims of unlawful discrimination on the basis of race, gender, and national origin evaluated by the 2nd Court of Appeals and held to be without merit

Plaintiff, proceeding pro se, sued the New York State Division of Human Rights [Division] alleging violations of Title VII of the Civil Rights Act of 1964 for discriminating against him on the basis of race, sex, and national origin; creating a hostile work environment; and retaliating against him when he complained about unfair treatment. In addition, Plaintiff also brought a variety of state-law claims against the Division, his supervisors, and certain coworkers.

The United Stated District Court granted summary judgment to Division on all of Plaintiff’s federal claims. The court then determined that the Eleventh Amendment barred his state-law claims brought against individual named Defendants in their both their official capacity and in their personal capacities, explaining "individual supervisors and coworkers (other than the Plaintiff’s actual employers) are not subject to liability under Title VII."

The U.S. Circuit Court of Appeals, Second Circuit, said Plaintiff’s claims of discrimination and retaliation under Title VII are evaluated "under the familiar McDonnell Douglas burden-shifting framework, citing Vega v Hempstead Union Free Sch. Dist., 801 F.3d 72, (discrimination) and Gorzynski v. JetBlue Airways Corp., 596 F.3d 93 (retaliation). The Circuit Court said that under this framework, "a plaintiff must demonstrate a prima facie case of discrimination or retaliation, after which the employer must point to a legitimate, nondiscriminatory reason for the challenged conduct; if the employer does so, the burden shifts back to the plaintiff to prove that “discrimination was the real reason for the employment action.”

Agreeing with the district court that Plaintiff failed to make a prima facie showing of discrimination, i.e. as relevant here, “circumstances [that] give rise to an inference of discrimination.” As relevant here, “similarly situated” coworkers of a different race, sex, or national origin Plaintiff contended were subject to more favorable treatment, the court noted that such comparators must be similarly situated “in all material respects”—they must be “subject to the same performance evaluation and discipline standards” as Plaintiff and must have engaged in “comparable conduct.” The Circuit Court opined that while Plaintiff "identifies a handful of coworkers who, he claims, completed fewer than 108 cases a year while on probation, that similarity alone is insufficient, as there is no evidence by which a reasonable jury could find that those coworkers shared [Plaintiff] issues with work quality and insubordination. Lacking a similarly situated comparator, the court explained Plaintiff "cannot show circumstances that give rise to an inference of discrimination and so cannot prove his prima facie case.

As to Plaintiff's reliance "on comparisons to nonprobationary employees," the court said they are not subject to the same performance evaluation and discipline standards and thus are not similarly situated.

Further, agreeing with the district court, the Circuit Court said "even assuming [Plaintiff] proved his prima facie case, he failed to demonstrate that the nondiscriminatory reasons proffered by the Division for extending his probation and then terminating his employment were a pretext for unlawful discrimination.

Plaintiff contended that the Division’s assertions that he was fired due to poor work performance and insubordination were pretextual because those charges were false. In particular, Plaintiff pointed to perceived irregularities in his performance evaluations, which he argues contained false information and unexpectedly turned overly critical at the time his supervisors extended his probation and terminated him. 

Significantly, the Circuit Court said that "Even if [Plaintiff] could refute the charges of inadequate performance, that would not demonstrate that his supervisors did not believe what they asserted, let alone that the actual reason for extending his probation or terminating his employment was animus based on a protected characteristic."

Accordingly, the court concluded that Plaintiff was "unable to demonstrate pretext for discrimination."

Addressing Plaintiff's retaliation claim, the Circuit Court concluded "[on] this record, no reasonable jury could find that Plaintiff engaged in protected activity." Although Plaintiff "complained to his supervisors about unfair treatment generally, there is no indication that those complaints were premised on or related to discrimination based on his protected status."

The Circuit Court then indicated that summary judgment was also warranted on Plaintiff’s hostile work environment claim as he failed to establish the alleged harassment was “sufficiently continuous and concerted” to create an objectively hostile work environment “so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions” of [Plaintiff's] employment were altered.

Considering Plaintiff's "State-Law Claims", the court held that Plaintiff had abandoned any challenge to the dismissal of his official-capacity claims by failing to raise the issue in his brief. The Circuit Court noted that it has consistently held that, “[i]n general, where the federal claims are dismissed before trial, the state claims should be dismissed as well,” citing N.Y. Mercantile Exch., Inc. v. Intercontinental Exch., Inc., 497 F.3d 109.

After considering Plaintiff's remaining arguments, the Circuit Court said it found them "to be without merit" and affirmed the judgment of the district court.

Click HERE to access the Circuit Court's decision posted on the Internet.

 

Conducting an administrative hearing remotely via WebEx teleconferencing during the COVID pandemic

In this CPLR Article 78 action plaintiff [Petitioner] sought a judicial annulment of a decision by the New York State Department of Motor Vehicles Administrative Appeals Board affirming an adverse determination of an Administrative Law Judge.

The Appellate Division explained that "In order to annul an administrative determination made after a hearing, a court must conclude that the record lacks substantial evidence* to support the determination", citing Matter of Khan v New York State Dept. of Motor Vehs., 215 AD3d 844, and Matter of Lau v NYC DOB, 209 AD3d 858.

Addressing Petitioner's challenge to the administrative hearing having been conducted remotely via a WebEx teleconference during the recent COVID pandemic, the Appellate Division opined that, contrary to the Petitioner's contention:

1. "The Administrative Law Judge did not abuse her discretion by denying Petitioner's untimely request for an adjournment made during the course of the scheduled hearing; and

2. "There is no merit to Petitioner's contention that any purported procedural errors made by the ALJ in conducting the hearing, 'including holding the hearing which took place during the COVID pandemic via WebEx teleconference,' violated certain of his rights, nor has he demonstrated any prejudice that resulted therefrom, that 'so permeate[d] the underlying hearing ... to render it unfair'".

* The Appellate Division note substantial evidence is such relevant proof as "a reasonable mind may accept as adequate to support a conclusion or ultimate fact" and substantial evidence is a minimal standard that requires "less than a preponderance of the evidence" and "demands only that a given inference is reasonable and plausible, not necessarily the most probable".

Click HERE to access the Appellate Division's decision posted on the Internet.

 

 

Employer Resources for New York State Paid Family Leave posted by the NYS Workers’ Compensation Board

Since first launching in 2018, New York State Paid Family Leave (PFL) has provided critical benefits to improve the lives of hundreds of thousands of working New Yorkers and their families. As the Board looks ahead to 2024, there are exciting updates to share!

New! 2024 employee contribution rate and weekly benefit

Good news! Employees will be paying less for PFL in 2024. The employee contribution rate will decrease to 0.373% of an employee’s gross wages each pay period, capped at an annual maximum of $333.25. This is $66.18 less than 2023. Employers may begin taking deductions at the new rate starting January 1, 2024.

Additionally, the maximum weekly benefit for employees taking PFL will rise to $1,151.16 for leave that begins on or after January 1, 2024. This is about $20 more per week than 2023.

Employer resources

New York State has a created several resources to help employers communicate Paid Family Leave updates to your employees.

• Model Language for Employee Materials – Updated for 2024 – provides model language you can use, either in an employee handbook or other written materials, and customize based on your PFL policies and procedures.
• Employee Notice of Paid Family Leave Payroll Deduction for 2024 – a template you can use to tell employees what their expected payroll deduction will be.
• Statement of Rights for Paid Family Leave – outlines employees’ PFL rights and steps to apply.
• PFL At-A-Glance – provides a snapshot of the benefit, along with information on who can request PFL and how.

New York State offers complete details on PFL at PaidFamilyLeave.ny.gov, including a special page with updates for 2024, where you’ll find the above employer resources along with frequently asked questions and other information. You can also view the employer page of the website for additional resources.

Employer webinars

In October, the NYS Workers’ Compensation Board hosted a Paid Family Leave webinar for employers and HR professionals. If you weren’t able to attend, you can view the recording or access the slides.

On Tuesday, December 12 at 12:00pm, the Board will be hosting a Q&A webinar for employers and HR professionals, where we’ll review the most frequently asked questions, and leave time to answer questions live. More information, and the link to join, is on the webinar page.  

 

Selected links to items focusing on government operations posted on the Internet during the week ending December 8, 2023

2023: The Year Generative AI Gained Ground in Gov Tech While the likes of ChatGPT and its competitors may give pause to leaders in both the private and public sectors, it would be hard to find a state or local CIO dismissive of the potential and influence of generative AI. READ MORE

 

2023’s Dark Horse Cyber Story: Critical Infrastructure Attacks There are several cybersecurity trends that truly deserve top attention when we look back at 2023 — and they will get it. Meanwhile, cyber attacks against critical infrastructure quietly grow, despite a lack of major attention. READ MORE

 

3 Ways AI Can Make a Splash in Government, Fast At a recent gathering of public- and private-sector technology leaders, discussions included several examples of how AI can help the public sector without piling onto time and resource burdens. READ MORE

 

A Growing Momentum to Invest in Programs That Work It’s happening in red and blue states alike: Policymakers and civil servants are increasingly relying on evidence to transform how taxpayer dollars are spent. READ MORE

 

California Report Offers Glimpse at AI Use in State Government How might California government make use of generative artificial intelligence? Officials suggest several ways that the technology could be introduced to state government functions. READ MORE

 

Cities Hope AI Camera Enforcement Can Improve Bus Service Philadelphia, New York and Washington, D.C., are using bus-mounted cameras with AI technology to better enforce parking violations, hoping to clear transit lanes of vehicles and make public transit faster and safer. READ MORE

 

Colorado Dodged a Recession This Year. Can It Do It Again? Despite job gains moving at their slowest pace since 2011 and extreme stress in commercial real estate, Colorado managed to stave off a recession this year. Many are wondering whether it can keep an economic downturn at bay again next year. READ MORE

 

Cybersecurity Trends Point to More Sophisticated Attacks Ahead As ransomware attacks have continued to hit state and local organizations — and tech advancements like generative AI have continued apace — cyber experts predict evolving malicious tactics for 2024. READ MORE

 

Dallas Wins $5M Grant to Help Relocate Housing Voucher Holders The city’s Housing Authority received the federal grant to help voucher holders relocate to areas of high opportunity. The DHA estimates that more than 3,500 families are living in non-high-opportunity areas. READ MORE

 

Election Workers Push Back on Disruptions and Threats Election offices in California, Georgia, Nevada, Oregon and Washington received powder-filled letters around the November election. But states and workers are increasing efforts to protect democratic elections amid continued risk. READ MORE

 

EVs Are a Tough Sell in Texas. Here’s Why. A new survey found that only about 5 percent of Texans currently drive an electric vehicle and, of those who don’t currently own or lease an EV, about 60 percent said they probably wouldn’t consider one in the future either. READ MORE

 

How Did Georgia’s Budget Reserve Grow So Big So Fast? In 2021, the state’s surplus was $3.7 billion and a year later it had grown by nearly another $3 billion. Now with $16 billion reserved, it’s likely that increased spending will occur in next year’s session. READ MORE

 

How Technology Is Shaping Parking Policy, Pricing and Enforcement A digital parking technology pilot in Arlington County, Va., is providing fresh, real-time data related to which areas of the city experience the highest parking demand and how to better manage those spaces. READ MORE

 

In the World of Smart Cities, No One Wants a ‘One-Hit Wonder’ Too often, urban technology doesn’t scale across cities because it’s simply not ready for prime time, experts argued at the recent Smart Cities Connect Conference and Expo in National Harbor, Md. READ MORE

 

Long Beach CIO Opts to Stay on Post-Cyber Attack Long Beach CIO Paula Crowell was set to take over as Santa Monica’s CIO Dec. 18, but the far-reaching impacts of a November cyber attack prompted her to reconsider the transition. READ MORE

 

Long Beach Restores Some Services Equipped With Emergency Powers  Long Beach, Calif., continues to grapple with a Nov. 14 network security incident. It declared a local emergency on Nov. 17 and on Nov. 22 announced the restoration of a few services. READ MORE

 

Los Angeles Aims to Shift to Local Water Reliance by 2045 The nation’s largest county currently imports 60 percent of its water supply. The water plan that the Board of Supervisors adopted on Tuesday outlines how it will shift to sourcing 162 billion gallons locally instead. READ MORE

 

Niagara Considers Apprenticeship Requirement for County Projects A proposed law would require successful bidders for county construction work valued at $1 million or more to meet the standards of a New York State Apprenticeship program in an effort to retain trade students. READ MORE

 

Northeast Ohio Schools Ask: Should We Ban Cellphones? Nearly 100 percent of students use their phones for an average of 42 minutes during the school day, with social media being the top reason. A study found that adolescent smartphone use during weekdays resulted in worsened mental health. READ MORE

 

Ohio Creates Policy and Council to Govern Statewide AI Use Ohio’s new policy aims to ensure AI accountability with human verification mandates, plus a council to set requirements for how agencies must use the new technology, among other considerations. READ MORE

 

Preservica Launches Public Records Archiving and FOIA Tool The new product embeds in Microsoft 365 and can save officials from labor-intensive work to save minutes, correspondence and other documents. Other companies, too, have found opportunity in this gov tech niche. READ MORE

 

Professors Cite Data Privacy, Cheating Among Top AI Concerns Based on a recent professional development course about generative AI, college professors still have reservations about data privacy, plagiarism, accessibility and mixed messages around the technology. READ MORE

 

Public Pensions Are Losing Top Talent. Isn’t It Time to Rethink Compensation? High-profile departures of senior-level executives reflect not only an aging workforce and a more politicized operating environment in government but also salaries and benefits that need to be competitive with the private sector’s. READ MORE

 

Ransomware Impacts Health-Care Systems in Six States The affected health-care systems were hit by the cyber attack on Thanksgiving Day, and they were forced to divert ambulances in the aftermath, according to officials with Ardent Health Services. READ MORE

 

Ransomware Incident Affects Scores of Credit Unions Credit union solutions provider Ongoing Operations experienced a cyber incident in late November. About 60 credit unions are believed to be suffering a level of disruption as a result. READ MORE

 

Texas Chided for Conditions for Mentally Disabled Foster Youth A U.S. district judge has scolded the Texas Health and Human Services Commission for ignoring complaints of maltreatment and horrible living conditions for foster children with intellectual disabilities. READ MORE

 

The District of Columbia Unveils an AI-Powered Career Platform Career Ready DC, a new AI-matching technology platform from the DC Department of Employment Services and Eightfold AI, aims to help match residents with employment opportunities more efficiently and equitably. READ MORE

 

The YIMBY Movement Needs to Go Commercial Even in a work-from-home era, deregulation — fewer restrictions on commercial property development — would lead to more business creation and more jobs with higher wages. READ MORE

 

Thousands of Alaskans Wait on Food Aid Amid SNAP Backlog  More than 12,000 state residents who applied or attempted to recertify for the Supplemental Nutrition Assistance Program, commonly known as food stamps, are still awaiting for their benefits to be processed months later. READ MORE

 

Two Schemes for Fighting Poverty: Which One Works Better? Investing in poor neighborhoods or dispersing the poor citywide each have their proponents. But place-based strategies — improving neighborhoods — may be our only feasible option. READ MORE

 

U.S. DOT Boosts Digital Construction in 10 States with $34M Grant According to the Federal Highway Administration, the grant funding, allocated under the Bipartisan Infrastructure Law, aims to propel digital construction tools such as computer modeling and 3D design in 10 state DOTs. READ MORE

 

Watch for AI to Find Its Way Into Smart City Upgrades As cities update timeless technology like streetlights, they are laying the groundwork for smart city connectivity and data gathering. Artificial intelligence will help sift through the mounds of data these projects create. READ MORE

 

What Are the Best Measures to Thwart a School Shooting? “The school district doesn’t want law enforcement sitting around watching kids in the school during the day and law enforcement doesn’t want to sit around and watch kids during the school day either.” READ MORE

 

What Cyber Response Can Learn from Traditional Disasters Government has battle-tested playbooks for dealing with hurricanes, tornadoes and wildfires. As cyber emergencies become both more common and more devastating, what can cyber responders learn from physical emergency response? READ MORE

 

What Is Citrix Bleed? The Next Ransomware Patch You Need Adopting a patch released in October — and removing any threat actors that may already be exploiting unpatched instances of the software — is important to defending against new actors known to exploit this flaw. READ MORE

 

What's New in Digital Equity: Checking on the National Broadband Map 3.0 Plus, Maryland to put $27 million toward getting Internet devices for residents of underserved households, Colorado releases a new broadband workforce plan, and more. READ MORE

 

Who Will Pay for New Orleans’ Updated Power Grid? A New Orleans power utility wants customers to pay for the $750 million to $1 billion price tag, which could raise bills an additional $11.86 per month. But the city has pushed back saying there must be an affordable option for ratepayers. READ MORE

 

Wisconsin’s AI Strategy: Upskilling, Not Displacing Workers The chair of the Wisconsin Governor’s Task Force on Workforce and Artificial Intelligence shares how the state is aiming to be one of the first states to harness the power of AI by redefining the workplace. READ MORE