Albany Law School Government Law Center to host Fair Trial/Free Press Conference on November 20, 2024

A distinguished panel of experts from the media, courts, and the legal profession will discuss the legal, political, and ethical issues that arise after an AI-generated video of an altercation between public officials goes viral on social media. An interactive discussion between the panelists and the audience will follow the panel's discussion of the event. This free event is open to the public, will be live-streamed, and includes a Reception for those attending in person. Registration is required. Click HERE for more information and to Register for this event.

The anatomy of the denial of Plaintiff's request for a religious exemption from an employer's COVID-19 vaccination requirement

Plaintiff challenged the determination of the City of New York Reasonable Accommodation Appeals Panel's [Panel] denying Plaintiff's request for a religious exemption from the COVID-19 vaccination requirement for New York City employees and asked Supreme Court to direct the reinstatement of Petitioner's employment. Supreme Court granted Plaintiff's petition in part and annulled the challenged determination as arbitrary and capricious.

The Appellate Division unanimously modified the Supreme Court's ruling "on the law and facts" and denied Plaintiff's CPLR Article 78 petition "in its entirety", without costs.

The Appellate Division opined that Plaintiff "failed to demonstrate that the denial of her application [for a religious exemption] was arbitrary and capricious or affected by an error of law", finding that the Panel had provided a sufficient explanation for its decision, stating that its decision "was based on the reasoning set forth in the denial letter from respondent New York City Police Department (NYPD)." That denial letter, said the court, in turn, found that Plaintiff's application contained "a generic statement that does not support [her] request," relied on false information or misinformation, "failed to explain how [her] religious tenets conflict with the vaccine requirement," and "had no demonstrated history of refusing medications or vaccines".

Concluding that Supreme Court "should not have rejected either the information supplied in the verified answer or two affirmations submitted by respondents," the Appellate Division observed "[W]here, as here, there was no administrative hearing, an agency may submit an official's affidavit to explain the information that was before the agency and the rationale for its decision." The Appellate Division also noted it "may consider such an affidavit even though it was not submitted during the administrative process", citing Matter of Marsteller, 217 AD3d at 544.

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

The New York State Commissioner of Education denied the application of an employee seeking to reopen his earlier appeal to the Commissioner

New York State Commissioner of Education Betty A. Rosa, noting that the Petitioner's instant appeal sought to reopen for consideration the Commission's decision in Appeal of J.C. [4 Ed Dept Rep, Decision No. 18,446], which decision dismissed Petitioner's earlier appeal concerning a determination by Petitioner's employer denying Petitioner's request for a security clearance, ruled that the Petitioner's application in the instant appeal must be rejected. 

Dr. Rosa's decision in the instant appeal is set out below.

Decisions of the Commissioner of Education 

Decision No. 18,512

Section 276.8 of the Commissioner’s regulations governs reopening a prior decision of the Commissioner and provides that applications to reopen are addressed solely to the discretion of the Commissioner.  The Commissioner will not grant an application to reopen absent a showing that: (1) the original decision was rendered under a misapprehension as to the facts or (2) there is new and material evidence that was not available at the time the original decision was made (8 NYCRR 276.8 [a]).  An application to reopen may not augment previously undeveloped factual assertions and arguments, advance new legal arguments, or merely reargue issues presented in the prior appeal (Application to reopen the Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,314; Application to reopen the Appeal of Lanzilotta, 48 id. 450, Decision No. 15,911).

Petitioner poses two principal arguments as to why the original decision was rendered under a misapprehension as to the facts.^[1]  

First, he argues that “his unwillingness to cooperate with OPI or SCI” was justified because respondent inquired into a criminal case against him that was allegedly dismissed. 

The factual finding of which petitioner complains was based upon SCI’s “numerous, unsuccessful attempts” and OPI’s “four unsuccessful attempts” to contact petitioner.  Respondent described SCI’s efforts as follows:

SCI investigators attempted to contact Petitioner by leaving a message on his cell phone, by a certified letter, and by visiting the address given as [petitioner’s] residence. The address listed turned out to be a post office box, and Petitioner never responded to the cell phone message or the certified letter.

This non-responsiveness formed the basis of my finding.  Petitioner’s argument that “SCI never contacted” him or that respondent erred by not contacting him by email are without merit.^[2]

Second, petitioner argues that he permissibly waited to challenge his problem code until he understood why it had been assigned.  “It is actual knowledge of the facts underlying a claim that begins the 30-day period in which to bring an appeal to the Commissioner” (Application of T.L., 64 Ed Dept Rep, Decision No. 18,474; see also Appeal of J.B., 62 Ed Dept Rep, Decision No. 18,245).  A problem code issued by respondent “triggers further review of [a] past employee’s application for re-employment” (Pepin v New York City Dept. of Educ., 45 Misc 3d 1221[A] at *3 [Sup Ct, NY County, 2014]).  Thus, the assignment of a problem code is a “discrete act” that creates a real, concrete injury (Appeal of J.C., 64 Ed Dept Rep, Decision No. 18,446).  Petitioner’s actual knowledge thereof began the 30-day timeframe for him to commence an appeal to the Commissioner (id.).  This time limitation is not tolled until petitioners obtain a satisfactory explanation for the actions about which they complain (Application to reopen the Appeal of Martinez, 59 Ed Dept Rep, Decision No. 17,831).  Thus, petitioner has not established grounds to reopen the prior decision in accordance with the standard set forth in 8 NYCRR 276.8 (link is external).

THE APPLICATION IS DENIED. 

[1] Petitioner does not contend that there is new, relevant evidence that was unavailable at the time of his original appeal. 

[2] As such, it is unnecessary to address petitioner’s argument that respondent impermissibly inquired into a prior arrest.

Procedure to determine Disability Retirement Applications pursuant to Articles 14 and 15 of the Retirement and Social Security Law

Source: New York State Register, Vol. XLVI Division of Administrative Rules Issue 45, November 6, 2024; posted on the Internet by the New York State Department of State; I.D. No. AAC-34-24-00002-A Filing No. 918 Filing Date: 2024-10-22 Effective Date: 2024-11-06

Action taken: Amendment of sections 353.1 and 353.2 of Title 2 NYCRR. [Statutory authority: Retirement and Social Security Law, sections 11(a), 519(1) and 614(a)].

Subject: Procedure to determine disability retirement applications under Articles 14 and 15 of the Retirement and Social Security Law.

Purpose: To broaden committee-eligible titles and account for changes to the Retirement and Social Security Law. 

Text or summary was published in the August 21, 2024 issue of the Register, I.D. No. AAC-34-24-00002-P. 

Final rule as compared with last published rule: No changes.

The text of rule and any required statements and analyses may be obtained from: Marcella Buell, Office of the State Comptroller, 110 State Street, Albany, NY 12236, (518) 43-4138. Email: mbuell@osc.ny.gov

Initial Review of Rule: As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2027, which is no later than the 3rd year after the year in which this rule is being adopted.

Assessment of Public Comment: The agency received no public comment. 

New York State Comptroller released Local Government and School District audits

On November 4, 2024, New York State Comptroller Thomas P. DiNapoli issued the following local government and school audits.

Click on the text highlighted in color to access the item posted on the Internet

Alden Central School District – Fuel Management (Erie, Genesee and Wyoming Counties) District officials did not properly manage fuel operations. Specifically, the superintendent and business administrator did not establish clear written guidance or provide adequate oversight of fuel management including verifying the quantity of fuel purchased, controlling fuel access, monitoring fuel usage  and performing inventory reconciliations. As a result, the transportation supervisor did not update fuel prices in the system and the bills were calculated based on the outdated prices resulting in billing errors totaling $9,176. Officials also did not maintain physical tank readings or perform periodic inventory reconciliations and were not aware of fuel inventory valued at $3,500. Therefore, they could not identify, investigate and correct the possible causes. Auditors found officials did not verify the accuracy of vendor charges leading to fuel overcharges totaling $1,498 and officials did not know who had access to the district’s fuel tanks.

 

Avon Central School District – Financial Management (Monroe County) The board and district officials did not effectively manage fund balance and reserves. The board-approved budgets overestimated appropriations by an average of approximately $1.7 million per year which made it appear the district needed to appropriate $300,000 of fund balance each year and increase real property taxes to close budget gaps. However, the district incurred operating surpluses in all five years auditors reviewed. Appropriating fund balance that is not needed circumvents the statutory limit. Auditors found six reserves totaling over $5 million had high balances that were not needed or used. The district also lacked written multiyear financial and capital plans. This inhibited effective financial management and justification for the levels of accumulated fund balance and reserves. 

Lyme Central School District – Financial Management (Jefferson County) The board and district officials did not properly manage the district’s fund balance. As a result, they levied more taxes than needed to fund operations and were not transparent with taxpayers. Auditors found the board and district officials: overestimated budgetary appropriations by an annual average of $918,000 (12%) from 2020-21 through 2022-23; appropriated fund balance to close projected budget gaps totaling $1.6 million for the 2020-21 through 2022-23 fiscal years though the district only needed to use approximately $23,000 of appropriated fund balance to cover operating costs during the period. It also reported fiscal year-end surplus fund balance during the same period ranging from 16% to 19% of the upcoming year’s budget, which was $1 million to $1.4 million over the 4% statutory limit. Additionally, the district did not have written multiyear financial and capital plans to provide a framework for developing the annual budgets and addressing future operating and capital needs. 

Wantagh Union Free School District – Financial Application User Access Controls (Nassau County) The board and district officials did not establish adequate controls over user accounts for the financial application to help prevent inappropriate access and use. Auditors found the board and district officials do not have reasonable assurance that they would be able to prevent or detect inappropriate changes to financial data, improper transactions or the misappropriation of funds in the financial application.

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