Tests used by court to determine if a public officer or employee is entitled to “qualified immunity” when he or she is being sued for damages in a civil action

Tests used by court to determine if a public officer or employee is entitled to “qualified immunity” when he or she is being sued for damages in a civil action

Lawson v. Hilderbrand et al, USCA, 2^nd Circuit, 15-653-cv [Summary Order*]

Timothy Hilderbrand and his co-defendants appealed a United States District Court’s denial of their motion for summary judgment on their theory that they were entitled to qualified immunity on “Lawson’s search and seizure claims” in the first count of his complaint.** 

The Second Circuit Court of Appeals, citing Harlow v Fitzgerald, 457 US 800, said that qualified immunity may be claimed by public officers and employees in civil suits seeking damages “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

The court then explained that although an appeal of a denial of a motion for summary judgment typically is not permitted as that decision is not a “final judgment,” the collateral order doctrine permits an immediate appeal of a denial of a motion for summary judgment on the issue of qualified immunity “where the district court denied the motion as a matter of law.”*** However, such an appeal is available to defendants only the defendants “accept as true [the] plaintiff’s version of the facts for purposes of the appeal.”

According to the decision, police entered Duncan Lawson’s home with his consent. When that consent was revoked, the Second Circuit said that “it was objectively reasonable” for the police officers to believe that “exigent circumstances made their continued presence in the house, and their confinement of the residents to the living room, lawful.”

The Second Circuit said that “When a government official charged with violating federal constitutional rights seeks summary judgment on the ground of qualified immunity, the Court may first consider whether there was a “violation of clearly established law before turning to the more difficult question whether the relevant facts make out a constitutional question at all.”

In this instance the court concluded that “the lack of clearly established law” barring the actions the police officers involved entitles them to qualified immunity for their actions.

In contrast, certain public officials are entitled to “absolute immunity.” Absolute immunity is typically limited to judges, prosecutors, legislators, and the highest executive officials when acting within their authority. Absolute immunity also has been granted to lawyers in some situations.

* Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by federal rule of appellate procedure 32.1 and the 2^nd Circuit’s Local Rule 32.1.1. When citing a summary order in a document filed with the Second Circuit, a party must cite either the federal appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

** Lawson v. Hilderbrand, 88 F. Supp. 3d 84

*** The doctrine allows appeals from interlocutory rulings (i.e., rulings preceding a final judgment) so long as those rulings conclusively decide an issue separate from the merits of the case [See Cohen v Beneficial Industrial Loan Corp., 337 U.S. 541].

The 2^nd Circuit’s decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/93cb634e-f589-4ce9-99c2-1d5c59846bb/16/doc/15-653_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/93cb634e-f589-4ce9-99c2-81d5c59846bb/16/hilite/

New national study reports “Saving for College” 529 plan costs “state by state”

New national study reports “Saving for College” 529 plan costs “state by state”

Source: Study by Joseph Hurley, Savingforcollege.com

This 2016 study notes that New York's 529 College Savings Program “offers the lowest-cost 529 plan among plans that charge the same fee across the entire menu of investment options. Its total 10-year costs are $205, representing an annual fee of only 0.16%.” Also, New York does not charge 529 program participants an annual fee.

Highlights from the study are posted on the Internet at:

 http://www.savingforcollege.com/articles-professional/finding-the-lowest-cost-529-savings-plans?utm_source=SFC_ProUpdate&utm_medium=SFC_ProUpdate&utm_campaign=SFC_ProUpdate_March012016

The complete study is posted on the Internet at:

http://www.savingforcollege.com/529_fee_study/index.php

Employee’s disciplinary history for rudeness and insubordination considered in determining disciplinary penalty to be imposed

Employee’s disciplinary history for rudeness and insubordination considered in determining disciplinary penalty to be imposed

Admin. For Children’s Services v Berrios, OATH Index #124/16

Giselle Berrios, a child protective specialist, employed by the Administration for Children’s Services [ACS], was served with disciplinary charges alleging that she failed to appear at family court hearing concerning a case under her supervision at the time scheduled and raising her voice at an agency attorney when questioned about the case.

Berrios admitted to having forgotten to appear at family court, but denied yelling at the agency attorney.

ALJ Astrid B. Gloade found that Berrios' testimony was not credible. The ALJ noted that the case had been on the court’s calendar almost every week because the judge was closely monitoring ACS’s response to numerous concerns that had been raised about the family’s well-being.

In contrast, the ALJ found that the attorney's testimony was corroborated by a contemporaneous telephone complaint and an e-mail to Berrios' supervisor after the incident.

In addition, Judge Gloade noted that “even were I to credit [Berrios’] explanation [that she forgot the court appearance], her forgetfulness does not excuse her failure to appear in court.”

Given the nature of the proven misconduct, as well as Berrios’ disciplinary history for rudeness and insubordination, the ALJ recommended that Berrios be suspended without pay for 55-days.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16-124.pdf

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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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Use of video surveillance recording in disciplinary actions

Use of video surveillance recording in disciplinary actions

NYC Dept. of Environmental Protection v Gaicia, OATH Index #211/16

With the expanding installation of video surveillance equipment, video tape recordings are being used with increasing frequency in disciplinary actions.

The NYC Dept. of Environmental Protection [Department], alleged that one of its employees, Supervising Sewage Treatment Worker Nicholas Gaicia, had an oral altercation with a co-worker that also involved Gaici's throwing chairs and slamming doors.

The Department introduced a video surveillance recording into evidence, contending that  the video the showed the exchange between Gaicia and his co-worker. It also presented the testimony of three employees in support of the charges it had filed against Gaicia.

Gaicia testified in his defense and called four other employees as witnesses testify on his behalf.

OATH Administrative Law Judge [ALJ] John B. Spooner found that the video tape and the testimony presented by the employer failed to support the “incredible assertion that Gaicia was threatening” his co-worker. The ALJ also found that the allegations that Gaicia had thrown chairs and slammed doors set out in the Department's notice of discipline were not corroborated by the Department’s witnesses.

ALJ Spooner recommended that the disciplinary charges brought against Gaicia be dismissed and that he be reimbursed for the time he was suspended from his position without pay.   

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-0211.pdf

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The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions involving state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html 

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Cybercriminals hold computer files hostage for ransom

Cybercriminals hold computer files hostage for ransom

Source: Governing the States and Localities

Tod Newcombe, writing for Governing the States and Localities, points out the growing threat of cybercrime and just how vulnerable public entitites are to it.

As an example, Mr. Newcombe reports that “In June 2014, an officer with the Durham, N.H., Police Department opened what she thought was a digital fax attached to an email about an investigation she was working on. Instead, it was a type of malicious software that infected files throughout the entire police department’s network of computers. By the next morning, the entire system was in serious trouble.

“The officer had accidentally downloaded an extortion malware program popularly known as ransomware. It encrypts a computer’s files (meaning they can only be accessed by the cybercriminals) and then sends victims a digital ransom note, demanding money to decrypt them.”

The full text of Mr. Newcombe’s article is posted on the Internet at:

http://www.governing.com/columns/tech-talk/gov-ransomware-police-cybsersecurity.html?utm_medium=email&utm_source=Act-On+Software&utm_content=email&utm_campaign=Federal%20GMO%20Labeling%20Bill%20Would%20Trump%20State%20Laws&utm_term=Hackers%20Hold%20Police%20Files%20Hostage%20for%20Ransom

Professional Career Opportunities (PCO) eligible lists

Professional Career Opportunities (PCO) eligible lists

Source: NYS Dept. of Civil Service, Scott DeFruscio, Director of Staffing Services

The New York State Department of Civil Service has published new policies for agencies that choose to canvass the Professional Career Opportunities (PCO) eligible lists by email. These policies are designed to improve  timeliness and efficiency when canvassing a PCO eligible list.

Advisory Memorandum updates and replaces the section on Email Canvasses No. 14-03. and is posted on the Internet at: https://www.cs.ny.gov/ssd/pdf/am16-01.pdf

A public educational institution is not an “education corporation” within the meaning of New York State’s Human Rights Law

A public educational institution is not an “education corporation” within the meaning of New York State’s Human Rights Law

Garcia v City Univ. of N.Y., 2016 NY Slip Op 01271, Appellate Division, First Department

Supreme Court dismissed Minerva Garcia's disability discrimination claims brought against the City University of New York pursuant to New York’s Executive Law §296(4), the State’s Human Rights Law (HRL).

The Appellate Division, citing North Syracuse Central School District v New York State Division of Human Rights, 19 NY3d 481, sustained the lower court’s ruling explaining that the City University of New York is a public educational institutions*and not "education corporation[s] or association[s]" within the meaning of Executive Law §296(4).

In North Syracuse Central School District the Court of Appeals said that the issue before it was whether a public school district is an "education corporation or association" as contemplated by Executive Law §296(4).”  The court concluded that it was not and, therefore, the New York State Division of Human Rights (SDHR) “lacks jurisdiction to investigate complaints against public school districts under that provision.”

Although SDHR asked the court to “liberally construe the ‘general purpose’ of the Human Rights Law, which is to ‘eliminate and prevent discrimination . . . in educational institutions’ [citing Executive Law §290(3)], and conclude that a public school district is an ‘education corporation or association,’” the court declined, stating that the Division’s argument overlooked a basic premise: “there must first be an underlying directive in the statute before this Court can apply such a construction”  and that  “it is evident from the legislative history that the term ‘education corporation or association,’ the origins of which can be traced to the Tax Law, refers to only private, non-sectarian entities that are exempt from taxation under [Real Property Tax Law] Article 4.”

The Appellate Division then noted:

1. Even if Ms. Garcia's were able to assert her claims under the HRL her complaint would have been dismissed as she did not make out a prima faciecase of unlawful disability discrimination having failed to present any medical evidence showing that she suffered from bipolar disorder, depression, or any other cognizable disability; and

2. Ms/ Garcia's proposed disability discrimination claims under the Americans with Disabilities Act (ADA) were similarly without merit as ADAclaims "are governed by the same legal standards" as disability discrimination claims under the HRL.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_01271.htm