OATH Administrative Law Judge sustained disciplinary charges alleging that an employee used profane language in an email she sent to her supervisor

New York City Office of Administrative Trials and Hearings Administrative Law Judge Jonathan Fogel recommended a five-day suspension for a project manager who used improper language in an email she sent to her supervisors.

The agency had brought numerous disciplinary charges against the manager, including using profane language in an email, falsifying timesheets and field reports, failing to accurately record her time, disobeying lawful orders, misusing her city position, and recklessly endangering co-workers. The ALJ sustained the charge for using profane language in an email to her supervisors but found that the agency failed to provide sufficient evidence to support the remaining charges.

For the falsifying timesheets allegation, the agency relied on a badge access report listing each time the manager used her employee identification to enter the office, which suggested that the manager was not at the office when she reported to work on 73 dates. 

The ALJ found that the manager provided three credible explanations for the lack of employee identification swipes that were consistent with the badge access report: a co-worker opened the door for her, she worked remotely for a period of time, and she conducted field inspections in the morning before reporting to the office later in the day.

Noting that the employer did not charge the manager with failing to report to the office, the ALJ held that there was insufficient evidence to establish that the manager falsified her timesheets.

Because the employer did not prove most of the charges all of the charges filed against the manager, the ALJ recommended a five-day suspension in lieu of the agency’s requested penalty of termination. 

Click Dep’t of Environmental Protection v. Layman to access Judge Fogel's findings and recommendation.

New York State Comptroller releases municipal audits

On May 29, 2024 New York State Comptroller Thomas P. DiNapoli announced the following local government audits were issued.

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

Eaton No. 1 Fire District – Board Oversight (Madison County)  District officials did not adequately monitor financial activities or keep appropriate records and reports. The board did not ensure basic accounting records were maintained or that it received written financial reports to manage operations or ensure bank reconciliations were performed. In addition, the board did not ensure that the district’s required annual financial reports were filed in a timely manner or conduct an annual audit of the secretary-treasurer’s accounting records for 2020 through 2022. The board also did not properly audit claims prior to payment. Of the 108 claims totaling $209,006 that auditors reviewed, 55 claims totaling $116,864 (56%) had one or more exceptions.

Neptune Hose Company No. 1 of Dryden, Inc. – Disbursements (Tompkins County)  Company disbursements were not always supported or authorized prior to payment. Auditors reviewed 171 disbursements totaling $381,186 and determined that 34, totaling $30,126, were not processed in accordance with the company’s accounting manual. These disbursements had one or more issues, such as improperly authorized purchase orders or were unsupported. Twenty-three disbursements totaling $24,875 were improperly authorized, ten disbursements totaling $18,974 were approved after payment was made, six disbursements totaling $4,530 lacked a payment authorization date and seven disbursements totaling $1,371 were not adequately supported. In addition, sixteen disbursements totaling $6,564 lacked adequate support such as itemized receipts or invoices. Lastly, five company members received unsupported mileage reimbursements totaling $2,573. Because disbursements were not always authorized or supported, officials approved payments without having sufficient documentation.

City of Amsterdam – Budget Review (Montgomery County)   Based on the results of the review, the significant revenue and expenditure projections in the city’s 2024-25 proposed budget are reasonable. However, there were certain revenue and expenditure projections and other matters that should be reviewed by the mayor and council. In addition, city officials did not implement all of the recommendations in a previous review letter when preparing the 2024-25 proposed budget. The mayor submitted the 2024-25 proposed budget to the council on April 22, 2024, or 21 days after the charter-established deadline. The proposed budgets for the general and recreation funds are not structurally balanced because both budgets include subsidies from other funds to finance their operations. City officials should also continue to evaluate and explore ways to make the recreation fund self-sufficient.

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Selected links to items focusing on using Artificial Intelligence [AI] in governmental operations recently posted on the Internet

AI's Energy Appetite: Challenges for Our Future Electricity Supply The dramatic growth in GenAI and AI adoption is bringing increased demand for energy to power data centers. Where is this heading? How can we navigate a sustainable energy future with exploding technology usage? READ MORE

 

Can AI and Other Tech Ease Public Safety Workforce Woes? Police departments and emergency dispatch centers need more workers. Gov tech suppliers are rushing to the rescue, promising new software, data integration and other tools to make up for vacant positions. READ MORE

 

Can AI make airplane food better? READ MORE

Colorado Lawmakers Send Bills on AI, Deepfakes to Governor State legislators have agreed on what should be done about protecting residents from artificial intelligence, and against the use of deepfakes in elections. Proposed laws taking action on each have gone to Gov. Jared Polis for his signature. READ MORE

Ethics, Workers’ Rights Central to Fed’s Employer AI Guidelines The U.S. Department of Labor has released guidance for employers and developers amid the rapid advancement of artificial intelligence. Several focus on protecting and empowering staff. READ MORE

Pilot Will Use AI to Understand Traffic, Safety in Las Vegas The Regional Transportation Commission is working with governments and local police on a test of Advanced Intersection Analytics. It will use AI, predictive analytics, historical data, cameras and sensors to learn about high-risk intersections. READ MORE

 

RapidSOS Doubles Down on AI and Emergency Data Integration Two new tools from the public safety tech provider, fresh off an Innovation Day, offer AI assistance during emergencies and wider, unified views of data vital to first responders. The move reflects wider gov tech trends. READ MORE

 

San Jose AI Initiative Boosts Accessibility, but by How Much? The city of San Jose has adopted an AI-powered translation tool to improve accessibility at City Council meetings for people who primarily speak a language other than English. It may see wider use, depending upon its performance thus far. READ MORE

New York City's Police Commissioner is afforded "great leeway" in disciplinary matters

The New York City Police Commissioner rejected Plaintiff's negotiated disciplinary penalty of the loss of 30 vacation days and a one-year dismissal probation and set the matter for a disciplinary trial, at which the Police Department intended to "seek [Plaintiff's] dismissal." Plaintiff declined to withdraw his plea and instead proceeded to "a mitigation hearing." Following such hearing an Assistant Deputy Commissioner recommended the Plaintiff's termination from his position, which recommendation the Commissioner adopted.

Supreme Court denied Plaintiff's petition seeking to annul the Commissioner's determination which terminated Plaintiff's employment. Plaintiff appealed the Supreme Court's determination.

Finding that New York City's Police Commissioner is afforded "great leeway" in disciplinary matters, the Appellate Division:

1. Unanimously vacated the Supreme Court's judgment sustaining dismissal of the Plaintiff;

2. Treated the Plaintiff's petition as one which transferred the matter to the Appellate Division for de novo review pursuant to CPLR 7804(g); and

3. Upon such review, the Appellate Division unanimously confirmed the Commissioner's determination, denied the Plaintiff's petition, and dismissed the proceeding brought by the Plaintiff pursuant to CPLR Article 78.  

The Appellate Division's decision in this matter is set out below.

Matter of Bonifacio v Sewell

2024 NY Slip Op 02886

Decided on May 28, 2024

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: May 28, 2024
Before: Singh, J.P., Kennedy, Rodriguez, Pitt-Burke, Michael, JJ.

Index No. 152332/22 Appeal No. 2379 Case No. 2022-05305

[*1]In the Matter of Yonathan Bonifacio, Petitioner-Appellant,

v

Keechant Sewell et al., Respondents-Respondents.

Worth, London & Martinez, LLP, New York (Stuart Gold of counsel), for appellant.

Sylvia O. Hinds-Radix, Corporation Counsel, New York (Antonella Karlin of counsel), for respondents.

Judgment (denominated an order), Supreme Court, New York County (Laurence L. Love, J.), entered October 28, 2022, denying the petition to annul the determination of respondent City of New York Police Department (NYPD), dated December 16, 2021, which terminated petitioner's employment, unanimously vacated, the petition treated as one transferred to this Court for de novo review pursuant to CPLR 7804(g), and, upon such review, the determination unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 dismissed, without costs.

Because the petition raises an issue of substantial evidence, we treat it as though it had been properly transferred to this Court in accordance with CPLR 7804(g) (see Matter of 16 Cypress Ave Realty LLC v New York City Loft Bd., 215 AD3d 418, 419 [1st Dept 2023]).

Petitioner, who was a probationary NYPD sergeant before he was demoted to officer in connection with this case, pleaded guilty to disciplinary charges and specifications alleging that, in August 2020, he "engaged in conduct prejudicial to the good order, efficiency, or discipline of [the NYPD] by displaying offensive racial material" when he disseminated two memes, without commentary, in a private group chat to his nine subordinates. The first meme used racist language and imagery to mock the May 2020 killing of George Floyd by a police officer, and the second meme stated, among other things, "F—- 'Black Lives Matter'" and "F—- Looting Hoodrats." The Police Commissioner rejected petitioner's negotiated penalty of 30 vacation days and a one-year dismissal probation and set the matter for a disciplinary trial, at which the NYPD intended to "seek[] [petitioner's] dismissal." Petitioner declined to withdraw his plea and instead proceeded to a mitigation hearing. After the hearing, an Assistant Deputy Commissioner (ADC) recommended a penalty of dismissal, which the Commissioner adopted.

Despite petitioner's contention otherwise, he was not disciplined for uncharged misconduct. The charge of disparaging remarks carries a presumptive aggravated penalty of termination, while the charge of displaying offensive material carries a presumptive aggravated penalty of 30 vacation days. The ADC expressly found that petitioner had violated NYPD policy prohibiting the display of offensive racial material, as charged in the charges and specifications. However, the ADC further found that, given the circumstances of petitioner's conceded violation, his conduct was indistinguishable from the type of conduct punishable as a disparaging remarks offense, and therefore determined that the penalties associated with disparaging remarks more appropriately addressed petitioner's conduct.

That the penalty range for disparaging remarks informed the ADC's decision to depart from the presumptive penalties for display of offensive material, a departure that was permissible under the NYPD's disciplinary system penalty guidelines, does not amount to disciplining [*2]petitioner for uncharged misconduct in violation of his due process rights (see Mayo v Personnel Review Bd. of Health & Hosps. Corp., 65 AD3d 470, 472 [1st Dept 2009]). On the contrary, the charges notified petitioner in detail of the conduct charged (see Wolfe v Kelly, 79 AD3d 406, 407, 410 [1st Dept 2010], appeal dismissed 17 NY3d 844 [2011]). In addition, petitioner was on notice that he faced potential dismissal, as the charges and specifications alleged that he "engaged in conduct prejudicial to the good order, efficiency, or discipline of [the NYPD]," which carries an aggravated penalty of termination under the Guidelines. The Commissioner's rejection of the negotiated penalty also specifically notified petitioner that the NYPD would seek dismissal.

Furthermore, respondents' determination is supported by substantial evidence (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181-182 [1978]). Petitioner's guilty plea, his testimony admitting that he sent the two memes and that he believed them to be offensive, and the facially offensive posts "established such relevant proof as a reasonable mind may accept as adequate to support the determination that petitioner[] [was] guilty of the offenses charged" (Matter of Abbate v Bratton, 232 AD2d 233, 234 [1st Dept 1996]). Petitioner's failure to include any comment on the messages, either contemporaneously or afterward, undermines his argument that he did not intend the memes to be offensive, but to communicate that he disapproved of them.

The penalty of dismissal is not "so disproportionate to the offense as to be shocking to one's sense of fairness" (Matter of Kelly v Safir, 96 NY2d 32, 38 [2001] [internal quotation marks omitted]). Although the penalty exceeded the aggravated presumptive penalty for display of offensive material, it did not exceed the aggravated penalty for conduct prejudicial to the good order and efficiency of the department. In any event, the Commissioner has the discretion to depart from the Guidelines and is afforded "great leeway" in disciplinary matters (id.at 38 [internal quotation marks omitted]; see also Administrative Code of City of NY § 14-115).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: May 28, 2024

Court granted school district's motion for summary judgment dismissing the petitioner's complaint based on the school district argument that it could not be held liable as the school district did not owe a special duty of care to the petitioner

Villa-Lefler v Department of Educ. of the City of N.Y.

2024 NY Slip Op 02343

Decided on May 1, 2024

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 1, 2024 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
ANGELA G. IANNACCI, J.P.
LINDA CHRISTOPHER
LARA J. GENOVESI
BARRY E. WARHIT, JJ.

2022-02432
(Index No. 1307/11)

[*1]Dianna Villa-Lefler, respondent,

v

Department of Education of the City of New York, et al., appellants.

Sylvia O. Hinds-Radix, Corporation Counsel, New York, NY (Elina Druker and Antonella Karlin of counsel), for appellants.

The Berkman Law Office, LLC, Brooklyn, NY (Kenneth A. Leitner of counsel), for respondent (no brief filed).

 

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Katherine Levine, J.), dated February 23, 2022. The order denied the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.

The plaintiff, an administrative dean at a high school located in Brooklyn, commenced this action against the defendants to recover damages for personal injuries she allegedly sustained in October 2009 when she was attacked by a student in a hallway at the school. The plaintiff alleged, inter alia, that the defendants were negligent in failing to provide adequate security. The defendants moved for summary judgment dismissing the complaint, contending that they could not be held liable as they did not owe a special duty of care to the plaintiff. The plaintiff opposed the motion. In an order dated February 23, 2022, the Supreme Court denied the defendants' motion. The defendants appeal.

"Absent the existence of a special relationship between the defendants and the . . . plaintiff, liability may not be imposed on the defendants for a breach of a duty owed generally to persons in the school system and members of the public" (Morgan-Word v New York City Dept. of Educ., 161 AD3d 1065, 1067; see Vitale v City of New York, 60 NY2d 861, 863). To succeed on a cause of action sounding in negligence, the plaintiff must establish that the defendants owed her a special duty of care (see Ferreira v City of Binghamton, 38 NY3d 298, 317; Wilson v New York City Bd. of Educ., 167 AD3d 820, 820; Destefano v City of New York, 149 AD3d 696, 697).

A plaintiff may demonstrate that a special relationship exists by showing, among other things, that the municipality "voluntarily assume[d] a duty that generate[d] justifiable reliance by the person who benefits from the duty," or that "the municipality assume[d] positive direction and control in the face of a known, blatant and dangerous safety violation" (Wilson v New York City Bd. of Educ., 167 AD3d at 820 [internal quotation marks omitted]; see Thomas v New York City Dept. of Educ., 124 AD3d 762, 763). A special relationship based upon a duty voluntarily assumed by the municipality requires proof of the following: "'(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form [*2]of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking'" (Boland v City of New York, 209 AD3d 960, 961, quoting Watts v City of New York, 186 AD3d 1577, 1578; see Koyko v City of New York, 189 AD3d 811, 812; Wilson v New York City Bd. of Educ., 167 AD3d at 820-821).

Here, the defendants established, prima facie, that they did not owe a special duty of care to the plaintiff (see Koyko v City of New York, 189 AD3d at 812; Morgan-Word v New York City Dept. of Educ., 161 AD3d at 1068; Destefano v City of New York, 149 AD3d at 698). The defendants' submissions demonstrated that they did not voluntarily assume a duty toward the plaintiff. The defendants did not make any promises to the plaintiff or take any actions regarding security protocols in the school that amounted to an affirmative undertaking of protection by them on her behalf, nor could the plaintiff have justifiably relied on any such actions (see Vitale v City of New York, 60 NY2d at 863; Wilson v New York City Board of Education, 167 AD3d at 821; Morgan-Word v New York City Dept. of Educ., 161 AD3d at 1068). Notably, the plaintiff testified at her deposition that she had no reason to fear the student who allegedly assaulted her. The plaintiff also testified that, prior to the incident, the student had never made any threats toward her and she never asked the school to provide her with protection from the student. Moreover, the defendants did not take positive direction and control in the face of a known, blatant, and dangerous safety violation (see Sutton v City of New York, 119 AD3d 851, 852-853).

In opposition, the plaintiff failed to raise a triable issue of fact.

Since the defendants did not owe the plaintiff a special duty of care, we need not consider whether the governmental function immunity defense applies (see Brumer v City of New York, 132 AD3d 795, 797; Sutton v City of New York, 119 AD3d at 853).

Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint.

IANNACCI, J.P., CHRISTOPHER, GENOVESI and WARHIT, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court