Alert from GOVTECH TODAY dated April 23, 2021

GOVTECH TODAY advises governments to take note that "Bad Internet Bots Are On The Rise." 

A web robot, robot or simply bot, is a software application that runs automated tasks [scripts] over the Internet. GOVTECH TODAY reports that new data from Imperva, an IT security company, suggests government websites may be at higher risk of being targeted by “bad bots” as the COVID-19 pandemic continues. Experts, however, say "there’s plenty agencies can do to be prepared." READ MORE here.

Registration Coordinator Lauren Fahndrich stated: 

"As shown by recent breaches, hackers are increasingly launching more sophisticated and targeted attacks that are becoming more difficult to detect.

"To combat these threats, it’s critical for state and local governments to add some new tools to their cybersecurity toolkits. Watch now to learn more about the evolving cybersecurity landscape and how cyber threat intelligence, an incident response retainer and other tactics can help you defend against and respond to the next big attack.

"This complimentary, one hour webinar is available on-demand, and you are welcome to share this invitation with any colleagues that may benefit from the information!"

For additional information, contact:

Lauren Fahndrich
Registration Coordinator
Government Technology | A division of e.Republic
https://webinars.govtech.com/
800-940-6039 ext. 1378
lfahndrich@govtech.com

Failure to fully comply with the relevant rules and regulations may prove fatal to filing a viable administrative appeal of an adverse administrative decision

The Workers' Compensation Board declined to review of a decision by a Workers' Compensation Law Judge on the grounds that the self-insured employer [Employer] failed to comply with the controlling provisions of its rules and regulations.

A correction officer [Claimant] assaulted by an inmate filed a claim for workers' compensation benefits for an injury to his jaw and for "post-concussive syndrome and photophobia." A Workers' Compensation Law Judge [WCLJ) amended the claim to include an injury to the Claimant's head and found, among other things, that Claimant "is totally industrially disabled based upon his work-related injuries and legal blindness."

The Employer filed an application for review of the WCLJ's determination by the Workers' Compensation Board, challenging, among other things, the WCLJ's finding that [Claimant was] totally industrially disabled. The Board denied the application for Board review of the WCLJ's ruling because of Employer did not answer a question on the application form it had submitted seeking such review. Employer next appealed the Board's rejection of its application for review.

The Appellate Division affirm the Board's decision, noting that it had "consistently recognized that 'the Board may adopt reasonable rules consistent with and supplemental to the provisions of the Workers' Compensation Law, and the Chair of the Board may make reasonable regulations consistent with the provisions thereof.'"

The court explained that the regulations require, in relevant part, that "an application to the Board for administrative review of a decision by a [WCLJ] shall be in the format as prescribed by the Chair [and] . . . must be filled out completely",* noting that "[w]here, as here, a party who is represented by counsel fails to comply with the formatting, completion and service submission requirements set forth by the Board, the Board may, in its discretion, deny an application for review."

Further, opined the court, Employer's reliance on "its responses to other questions on the application for Board review does not cure the defective response to question number 15," the specific question which the Board found was not answered.

* See 12 NYCRR 300.13[b]

Click HERE to access the full text of the Appellate Division's decision.

 

Elements to be considered in evaluating justifications advanced for rejecting a Freedom of Information Law request filed with a governmental entity subject it provisions

In reviewing an appeal from a Supreme Court decision which denied the petition filed by Plaintiff seeking to compel the New York City Dept. of Investigation [Investigations] to disclose its entire case file and all documents related to a certain investigation under color of the Freedom of Information Law [FOIL],* the Appellate Division vacated the Supreme Court's ruling, in part, and remanded the matter for further proceedings as to the remaining records responsive to the FOIL request before a different Justice, and otherwise affirmed the Supreme Court's ruling, without costs.

In particular, the Appellate Division found:

1. Investigations failed to meet its burden of establishing that "disclosure of any records responsive to Petitioner's FOIL request would 'interfere with law enforcement investigations or judicial proceedings', which exemption 'ceases to apply after enforcement investigations and any ensuing judicial proceedings have run their course.';

2. " Investigations failed to establish that disclosure would 'identify a confidential source or disclose confidential information relating to a criminal investigation ... [and] in the absence of any evidence that [any] person received an express or implied promise of confidentiality'; and

3. Investigations' assertion that "disclosure would reveal nonroutine criminal investigative techniques or procedures is conclusory."

As to certain email messages offered by Plaintiff in support of its Article 78 petition, the Appellate Division, citing Matter of Gould, 89 NY2d at 277, opined that they "are covered by the inter-agency or intra-agency materials exemption " of Public Officers Law §87[2][g] as they amount to "opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making".

However, said the Appellate Division, "the applicability of this exemption to any other responsive records cannot be determined on this record in the absence of in camera review.  

The court than remanded the matter to Supreme Court for a de novo determination, after an in camera inspection, of the applicability of the inter-agency or intra-agency materials exemption and any other exemptions properly raised by Investigations.

* Public Officers Law §§84-90

Click HERE to access the full text of the Appellate Division's decision. 

 

Employee absent on workers' compensation leave served with disciplinary charges alleging he was able to perform the essential functions of his job while on such leave

A school district [Employer] adopted the finding a §75 disciplinary action hearing officer holding that the employee [Plaintiff] was guilty of certain charges of misconduct and the hearing officer's recommendation that the Petitioner be terminated from his position. Petitioner appealed the Employer's decision but the Appellate Division sustained the Employer's action and dismissed Plaintiff's Article 78 petition on the merits, with costs.

Petitioner, a motor equipment operator, sustained injuries on August 11when the ride-on lawn mower he was using while at work overturned. Petitioner obtained a doctor's recommendation that he not return to work until September 8.  After Plaintiff returned to work on September 8, the Employer filed fourteen Civil Service Law §75 disciplinary charges against the Petitioner alleging misconduct that occurred between August 12, and September 8, which charges the Appellate Division characterized as alleging the Plaintiff was "out of work on workers' compensation even though he was able to perform the essential functions of his job as a motor equipment operator."  

The Appellate Division, explaining that a court's review of an administrative determination in an employee disciplinary proceeding made after a hearing pursuant to Civil Service Law §75 is limited to considering whether the determination was supported by substantial evidence, said where there is conflicting evidence or different inferences may be drawn from the evidence, "the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]" and the courts may not weigh the evidence or reject the choice made by the appointing authority where the evidence is conflicting and room for choice exists, noting the Court of Appeals decision in Berenhaus v Ward, 70 NY2d 436.

As any credibility issues were resolved by the hearing officer, the Appellate Division said it found "no basis upon which to disturb the determination that the [Plaintiff] was guilty of the misconduct alleged, which was supported by substantial evidence."

Noting that "A court may set aside an administrative penalty only if it is so disproportionate to the offense as to be shocking to one's sense of fairness", the Appellate Division opined that "[u]nder the circumstances here, the penalty of termination of the [Plaintiff's] employment was not so disproportionate to the offense committed as to be shocking to one's sense of fairness," citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222.

Click HERE to access the full text of the Appellate Division's decision.

___________________

A Reasonable Disciplinary Penalty Under the Circumstances - A 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. For more information click on http://booklocker.com/books/7401.html  

The changing number of justices on the Supreme Court of the United States

As discussions concerning increasing the number of justices serving on the United States Supreme Court are currently a topic of continuing interest, it might be well to note although the Judiciary Act of 1789 set the number of justices of the Supreme Court at six, a chief justice and five associate justices, in 1807 Congress amended the law and increased the number of justices to seven.

The next change occurred in 1837 when the number of justices was increased to nine while in 1863 the number became 10 justices. In 1866 Congress enacted the Judicial Circuits Act, reducing the number of justices to seven in number, only to raise the number of justices to nine in 1869, which number has survived to date.

Although then President Franklin Delano Roosevelt sought to persuade Congress to enact legislation authorizing the appointment of additional justices to the high court in the event a justice, upon attaining the age 70, declined to resign or retire, and limited the total number of justices serving on the Supreme Court to 15 members, Congress elected not to do so.

See, also, https://publicpersonnellaw.blogspot.com/2018/10/setting-number-of-justices-on-united.html

An educator's previously unblemished employment record deemed insufficient to mitigate imposing a lesser penalty than dismissal from the position after being found guilty of charges of incompetence and misconduct

An educator [Plaintiff] was found guilty of disciplinary charges served upon her by her employer, the New York City Department of Education [Employer] after a hearing. The arbitrator found the Plaintiff guilty of disciplinary charges filed against her alleging incompetence and misconduct and imposed the penalty of dismissal.  

Plaintiff initiated a CPLR Article 75 proceeding challenging her dismissal from her position and sought a court order vacating the arbitration award which sustained disciplinary charges filed against her alleging Plaintiff was guilty of incompetence and misconduct. 

Supreme Court granted the Employer's motion to dismiss Plaintiff's Article 75 petition seeking to vacate an arbitration award, which ruling Plaintiff appealed to the Appellate Division.

The Appellate Division unanimously affirmed the Supreme Court's decision. The court observed that the arbitrator's "determination sustaining charges of incompetency is amply supported by the evidence." Further, said the court, the evidence also showed that Plaintiff was "unwilling ... to implement suggestions and constructive criticism of her ineffective teaching methods. Likewise, said the court, the portions of the arbitrator's decision addressing various charges of misconduct were "in accord with due process, rationally based and supported by adequate evidence."

As to the penalty imposed, dismissal from her position, the Appellate Division opined that notwithstanding Plaintiff's "previously unblemished record ... her identified pedagogical shortcomings, lack of improvement, and student safety issues inherent in two of the sustained misconduct charges, the penalty of termination does not shock one's sense of fairness", citing Matter of Ferraro v Farina, 156 AD3d 549, leave to appeal denied, 32 NY3d 902.

Click HERE to access the full text of the Appellate Division's decision.

 

The Medical Board's recommendation that an application for performance of duty disability retirement benefits be denied is conclusive if it is supported by some credible evidence and is not arbitrary or capricious

Supreme Court annulled a determination by the Board of Trustees of the New York City Employees' Retirement System [Trustees] denying the application of a retired New York City correction officer, [Petitioner] for performance of duty disability retirement benefits based on its Medical Board's recommendation and directed that the Petitioner be granted performance of duty disability retirement benefits retroactive to March 11, 2016.

The Appellate Division reversed the Supreme Court's ruling, on the law, with costs, and confirmed the Trustees' determination and dismissed Petitioner's CPLR Article 78 proceeding on the merits.

The Appellate Division explained that the Trustees' Medical Board's determination is conclusive if it is supported by some credible evidence and is not arbitrary or capricious, citing Matter of Solomonoff v New York City Employees' Retirement Sys., 188 AD3d 700. Further, opined the court, in the event there is conflicting medical evidence involved in the proceeding, the "resolution of a conflict in the medical evidence is solely within the province of the Medical Board.

Noting the decision in Topkin v Board of Educ. of City School Dist. of N.Y., 121 AD2d at 531, the Appellate Division said:

1] "The board is privileged to accept the medical reports of its own expert over those of a claimant"

2. "A mere conflict in opinion among physicians is not a ground for disturbing a determination; and

[3] "Courts may not 'substitute [their] own judgment for that of the Medical Board,' citing Matter of Borenstein v New York City Employees' Retirement Sys., 88 NY2d at 761.

Click HERE to access the full text of the Appellate Division's decision in this appeal.