Selected links to items concerning government operations posted on the Internet during the week ending June 7, 2024

2024 State of Local Government Survey Results GOVTECH TODAY recently surveyed over 500 local government leaders and if there’s one thing that the results tell us, it’s that the need to do more with less is greater than ever. Download this year’s annual survey to see what the biggest opportunities and obstacles facing the public sector are. DOWNLOAD THE SURVEY

A Wake-Up Call on Digital Experience and Accessibility  Research shows agency websites have more barriers than public officials may think. This paper explains how agencies can ensure equity for individuals with disabilities and improve usability for all constituents. DOWNLOAD

Ahead of Election, State, Federal Lawmakers Race to Rein in AI From robocalls to deepfakes, misuse of artificial intelligence threatens to play a significant role in the upcoming presidential election. Legislation from lawmakers nationwide proposes to keep it in check. READ MORE 

AI at Work Is Here. Now Comes the Hard Part 2024 is the year AI at work gets real. How are you integrating AI into your government organization? Read the 2024 Work Trend Index Annual Report >

Are You Ready for the New Era of Work? 89% of employees say AI tools empower them to feel more fulfilled and focus on what matters at work. Learn how AI tools can empower your organization. Get the e-Book >

Baltimore's Main Port Channel May Reopen Next Week The Army Corps of Engineers is expected to have the Port of Baltimore’s main channel fully open by June 10. To meet the deadline, large pieces of the Key Bridge’s steel truss must be removed from the waterway to ensure boat safety. READ MORE

California Working on ‘Responsible Adoption’ of Generative AI Tech leaders are being deliberate about the adoption of generative artificial intelligence and “trying to not follow the rush,” Government Operations Agency Secretary Amy Tong told a state commission. READ MORE

Can AI Help Agencies Save Money on Traffic Studies? As agencies get more comfortable with new ways of analyzing data, UrbanLogiq is betting officials will prefer AI-powered tools over typical traffic-counting methods. Already one city has started using such a product. READ MORE 

Can the Grid Keep Up With AI and Data Demands? A new order from the Federal Energy Regulatory Commission seeks to prod longer-term planning to address growing power needs and the transition to renewables. READ MORE

Data and AI: Reinventing Government Services and Operations Numerous pilot projects in recent years have proven the value of artificial intelligence (AI) in government and paved the way for wider adoption. At the same time, state and local agencies are managing ever-growing volumes of data, with the intention of making more informed decisions and improving operations and services. READ MORE

Deepfakes Dominate Early Attempts to Regulate AI Colorado has passed the nation’s most ambitious AI regulatory law. In other states, lawmakers are regulating fake likenesses involving porn, politics and celebrities. READ MORE

Deploying Human-Centric Security for Government Technical controls like firewalls, malware detection and access restrictions are not sufficient to detect and prevent today's sophisticated cyberattacks. Organizations must incorporate human-centric security. DOWNLOAD

Engagement Tech Firm CitizenLab Rebrands as Go Vocal The move comes as the gov tech company seeks a greater profile in the marketplace, eyes more U.S. growth and plans to expand its AI-backed offerings. The CEO explains how the change came about. READ MORE 

Familiar Issues Confront Congress in Debate on AI in Elections Members of Congress are finding the debate over controlling artificial intelligence touches on matters like freedom of speech, and balancing its ability to innovate with its potential for deception and fraud. READ MORE

Go Modular: How a Stackable Strategy Helps Governments Modernize Business Systems To optimize business systems and deliver value to taxpayers, governments should focus on a modular strategy that allows them to stack solutions and applications that work together seamlessly — without having to overhaul all their business systems at once.
READ MORE

Good vs. Risk in Value-Based AI: The ‘Challenge of Our Time’ Using artificial intelligence from a value-based perspective was a major theme during the 2024 Code for America annual summit. The organization also announced its new AI Studio. READ MORE

Harnessing the Sun to Power Your Mission The surge in onsite solar adoption by local governments reduces energy costs, enhances sustainability, and offers educational and economic benefits amid new federal funding opportunities. EMPOWER LOCAL ENERGY

How Nashville Learned to Share Data Across Agencies Enterprise-wide systems enable efficiency and community engagement. With its application of GIS, the city-county government is showing the value of that approach. READ MORE 

How the 'Most Significant Advancement in Government Transparency’ Came About The passage of the federal DATA Act 10 years ago and its implementation provide a road map for bipartisan reform at every level of government. READ MORE

How the Texas Stock Exchange Could Shape Dallas’ Future A national stock exchange headquartered in downtown Dallas could drive more company relocations and jobs to the city and state. But many still wonder if it can compete against established exchanges. READ MORE

Lawmakers Want More Government Workers Back in the Office Most government employees at the state and local level have returned to their respective offices at least part time, but some legislators and other officials want to make in-person work mandatory. READ MORE

Legal Woes, Constitutional Challenges: The Trouble With TikTok Eric Goldman, associate dean of research at Santa Clara University School of Law, assesses concerns around the impending TikTok ban or buyout. It faces significant First Amendment challenges, he said. READ MORE

Legalizing Casinos a Longshot for Texas Lawmakers in 2025 Last year, the state House fell a few votes short of advancing a constitutional amendment to allow the construction of eight destination resort casinos. It is unlikely that the state Senate will have enough votes to pass the measure next session. READ MORE

Local Government Guide to Managing Grants This guide takes a deep dive into six significant barriers to successful grant management in local governments. It outlines best practices to address each and features insightful resources to help you implement solutions. DOWNLOAD

Mayor Says Secretary of State Violated Supreme Court Order Mayor Quinton Lucas alleges that Missouri Secretary of State Jay Ashcroft moved a ballot measure to force Kansas City to pay more for its police to a different date than the top state court ordered. READ MORE

Minnesota Bill Signing Extends Runway for Flying Cars Legislation recently signed by Minnesota Gov. Tim Walz enables the operation of hybrid car-airplane vehicles on state roads and airstrips. The state is the second in recent years to enact such a law. READ MORE

Navigating Email: From Spam Wars to Trusted Relationships Some call it spam. Others call it marketing. Recipients want it to stop, while senders are looking to perfect their “art.” But both sides agree on one thing: Email communication is still broken in 2024. READ MORE

New Jersey Co-Creates AI Strategy With Public-Sector Staff To build an ethical framework for AI in state government, New Jersey is surveying its employees to engage them in the process of creating a system that uses AI to enhance services and empower workers. READ MORE

NLC Joins CivStart’s Project to Connect Govt With Tech The CivStart Innovation Hub will have the backing of the advocacy group for municipal governments across the country, as it seeks to help those jurisdictions better understand startups and their technology. READ MORE

Oregon Mayor Builds Homeless Shelter at No Cost to the City Lacey Beaty came into office as mayor of Beaverton, Ore., with less power than her predecessor. That hasn’t stopped her from taking on the city’s biggest issue. READ MORE

Privacy Nonprofit Unveils Center for Artificial Intelligence The Future of Privacy Forum has launched its new Center for Artificial Intelligence. It aims to help serve policymakers, companies and other organizations in creating AI governance strategies. READ MORE

 

Seeing Promise in Data, Utah to Expand Connected Vehicle Work The Utah Department of Transportation will continue its partnership with Panasonic on deploying connected vehicle technology. It intends to add more vehicles to the project and make collected data actionable. READ MORE

 

Set Targets, Determine KPIs, and Share Progress If you’re working on–and struggling with–setting your organization’s wildly important goals, you’re not alone. Goal setting can be hard. How do you ensure goals are motivating and not overwhelming? Download our eBook to learn best practices for setting goals that motivate teams and leave an impact. DOWNLOAD eBOOK

Seven AGs Sign Amicus Brief, Challenging Ohio Voting Law Attorneys general from Delaware, Illinois, Maryland, Nevada, New Jersey, New York and Washington, D.C., are challenging a 2022 Ohio voting law, alleging it creates unnecessary obstacles to casting a ballot. READ MORE

Solar Impact: Harness the Sun to Power Your Mission Onsite solar panel installations by local governments can cut costs, enhance sustainability, and tap into federal funds. LEARN MORE NOW

States Should Think Beyond Mobile Drivers' Licenses for Digital Identity Other forms of digital ID will also be important for serving constituents online and preventing fraud. READ MORE

Strengthening Digital Identity and Preventing Fraud New research from the Center for Digital Government shows most people prefer to interact with state agencies online. But constituents also are concerned about identity fraud resulting from these transactions, and verifying their digital identity is harder than it should be. This paper offers practical strategies for government leaders and policymakers to simplify digital identity verification and crack down on identity fraud. DOWNLOAD

Teachers Are Using AI to Grade Papers. But Who’s Grading the AI? California schools are using more chatbots, and teachers are using them to grade papers and give students feedback. Educators are split on the technology’s efficacy. READ MORE

Ten Features to Look for in Cost Allocation Plan (CAP) Software This paper covers the top ten features to look for in modern cost allocation software. DOWNLOAD

The Power of Simple for Government Read this brief to find out how applying cloud operating principles and practices to on-premises network infrastructure can help agencies manage complex IT environments. DOWNLOAD

The Role Tribes Need for Protecting Sacred Lands A draft plan for co-management of Bears Ears National Monument comes after years of advocacy from native organizations, but federal policies don’t go far enough. Co-stewardship of public lands is Indigenous peoples’ inherent right. READ MORE

The Upside of a Little Progressive Pension Paternalism With most public retirement systems seeing improved actuarial funding levels, there’s an opportunity to offer options that could make government compensation more competitive. But any impetus for change should come from pragmatic public employers, not partisans or lobbyists. READ MORE

The Worst Way to Do Infrastructure Projects Federal mandates that steer contracts to unionized companies worsen the construction industry’s skilled labor shortage. Taxpayers lose when responsible contractors that do a quality job at the best price are frozen out. READ MORE

Three Principles for Bridging Rural Health and Prosperity The two are intertwined, yet too often they aren’t viewed that way. Aligning them is a strategy for creating strong rural and Native communities. READ MORE

Three South Dakota Counties May Require Hand-Counting Ballots Auditors warn of financial consequences ahead of the June 4 primary election if Gregory, Haakon and Tripp counties ban the use of tabulator machines in future elections. READ MORE

Three Steps for Getting Started with AI Chatbots Many state and local agencies use chatbots, but fewer governments have unlocked the full potential of the technology with artificial intelligence (AI). This thought leadership paper details three steps your agency can take to kickstart an AI chatbot program. Real-world government examples show how AI chatbots can transform service delivery for constituents and improve efficiency for public sector employees. DOWNLOAD

Trolls and Their Tolls on Social Media Communicators This eBook from CivicPlus offers strategies for dealing with online trolls and guidance on how social media communicators can keep the peace on their websites without restricting free expression and meaningful and productive conversations. DOWNLOAD

Virginia Beach Is Still Healing from Its 2019 Mass Shooting On May 31, 2019, a city engineer shot and killed 12 people and injured five others before being fatally shot by the police. Five years later, the community is still healing and implementing new systems to prevent violence. READ MORE

Washington, D.C., Bloomington, Ind., Work With Lime on Mobility The two cities submitted the winning applications for the 2024 Mobility Insights Competition, organized by Lime and the League of American Bicyclists. The municipalities can now use Lime’s data to address mobility issues. READ MORE

West Virginia Water Utilities Seek Stronger Cybersecurity An association representing 28 water utilities is concerned the state’s Public Service Commission's recent cyber threat vulnerability assessment order may inadvertently pose threats to their cybersecurity. READ MORE

What Happens When There Aren’t Enough California Inmates to Fight Wildfire? California has long relied on its prison population to battle wildfires. But a steady decline in the state’s incarcerated population and a $45 billion budget shortfall has left the state with gaps when it comes to wildfire response. READ MORE

Why Washington Can’t Get Out of the Disaster Relief Business Some conservatives want Washington to stay out of disaster zones, leaving the job to states and localities, along with private insurance. This won’t fly politically or practically. READ MORE

 

New York States Comptroller Thomas P. DiNapoli releases municipal audits

On June 7, 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 posted on the Internet.

 

Village of Airmont – Claims Auditing (Rockland County) The board did not audit claims before payment to ensure they were for appropriate village purposes, accurate, and adequately supported. As a result, auditors identified overpayments and claims with insufficient documentation to ensure they were appropriate. Auditors reviewed 30 claims totaling $883,765 and determined that none of the claims were audited by the board. In addition, one vendor was overpaid $36,905 for snow plowing services due to the vendor’s use of the higher year-end Consumer Price Index rate instead of the monthly CPI rate. Six claims totaling $42,406 did not comply with the village’s purchasing policy and also did not contain sufficiently supported documentation to ensure claims were appropriate, accurate and approved.

Village of Argyle – Water Billings and Collections (Washington County)  Officials did not provide adequate oversight of water billing and collections. As a result, delinquent accounts were not enforced, and the village lost revenue. The clerk-treasurer did not maintain adequate water billing and collection accounting records and did not properly assess $4,330 in penalties on unpaid customer accounts. The board did not formally adopt the water billing rates charged to customers. In addition, the board did not enforce 39 unpaid customer accounts with unpaid balances totaling $14,458 for water bills from the September 2022 and March 2023 billings.

Town of Byron – Procurement (Genesee County) The board and town officials did not always comply with state law or the town’s procurement policy. If they had, they may have saved money by using a state fuel contract and may have paid less for other goods and services. The board and town officials procured fuel totaling $59,795 without obtaining competitive bids as required by law and the town’s procurement policy. Furthermore, the town paid approximately $4,000 more than the state contract price for the more than 16,700 gallons purchased during the audit period. It also  did not obtain quotes or request proposals in accordance with the town’s procurement policy for 10 purchases totaling $68,103. The town also did not use request for proposals or another competitive process to procure services from seven professional service providers totaling $630,336.

Crown Point Fire District – Board Oversight (Essex County) The board did not adequately oversee the district’s financial operations. As a result, the board cannot assure that the district’s financial operations are adequately accounted for and reported. For the 24 months reviewed, the board did not receive treasurer’s reports of collection and disbursement details for three months; cash balances for two months; and bank reconciliations, bank statements and cancelled check images for 19 months. As a result, the board’s ability to assess and monitor the district’s financial activity was diminished. As of Dec. 31, 2023, required annual audits for 2017 through 2022 were not conducted. As a result, there is no independent verification that the secretary-treasurer has properly recorded collections and disbursements and maintained current and accurate records and reports. In addition, required annual financial reports for 2018 through 2022 were not filed.

Town of Exeter – Town Clerk/Tax Collector (Otsego County) The clerk generally recorded collections accurately and deposited and remitted fees in a timely manner. However, the clerk did not always deposit real property taxes in a timely manner and did not remit these collections to the supervisor in a timely manner. Specifically, the clerk did not deposit 39 real property tax collections, totaling $505,197, within 24 hours of the date recorded as collected, without indication of the actual date of receipt or remit real property taxes to the supervisor on a weekly basis, as required by town law. Instead, the clerk made annual remittances in February, which kept the money from being productively used or invested to earn additional revenue.

Town of Exeter – Town Supervisor’s Records and Reports (Otsego County) The supervisor did not maintain complete, accurate and timely financial records and reports, which hindered the board from monitoring the town’s financial condition. While revenues and expenditures were recorded accurately and in a timely manner, balance sheet accounts were not properly maintained due to carrying over unsupported balances for interfund activity, receivables, and cash balances from prior years. As a result, the general fund balance was overstated by $81,929. In addition, annual financial reports have not been filed since 2016, as required and the supervisor did not provide the board with his records for audit, as required.

City of Yonkers – Budget Review (Westchester County) Some significant revenue and expenditure projections in the proposed budget are unreasonable. Officials continued the practice of using debt to pay for recurring costs. The review determined the city’s proposed budget continues to rely on $87.9 million in nonrecurring revenue, such as appropriated fund balance, one-time state funding and sale of property, to finance its operations and includes revenue estimates that may not be achievable.

 

Earnings Limit Suspended for School District and BOCES Employees who are receiving a pension from NYSLRS

The New York State and Local Retirement System reports that for most NYSLRS retirees who work for a public employer after retirement, the amount the retiree can earn each calendar year, without affecting the retiree's pension, is limited to $35,000. For NYSLRS retirees employed by school districts and, or, Boards of Cooperative Educational Services (BOCES), the earnings limit is now suspended through June 30, 2025.

The earnings limit suspension for school employees does not apply to NYSLRS retirees who work for a public college, university or charter school. If the retiree is going to earn more than the limit, it is the retiree's responsibility to report this fact to NYSLRS. Read more...

 

Former West Carthage Housing Authority executive director and mother pled guilty for over $48,000 theft

On June 4, 2024, New York State Comptroller Thomas P. DiNapoli, Jefferson County District Attorney Kristyna S. Mills, the U.S. Department of Housing and Urban Development, Office of the Inspector General (HUD OIG), and the New York State Police announced the guilty pleas of former West Carthage Housing Authority (WCHA) Executive Director Jan Hoffman for stealing over $48,000 in WCHA funds, and Katherine (Katie) Pais, Hoffman’s mother and former WCHA consultant, for aiding in and concealing the scheme.

“Hoffman and Pais brazenly diverted funds meant to support seniors and individuals with disabilities to line their own pockets,” DiNapoli said. “Thanks to the partnership between my office, Jefferson County District Attorney Kristyna S. Mills, the HUD Inspector General, and the New York State Police, they have been held accountable for their actions.”

“The fraud committed by the defendants diverted critical taxpayer money that was intended to benefit elderly and-low-income families in our communities," said Special Agent-in-Charge Vicky Vazquez with the U.S. Department of Housing and Urban Development, Office of Inspector General. “HUD OIG remains steadfast in its commitment to working with our prosecutorial, law enforcement and oversight partners to aggressively pursue those who engage in activities that threaten the integrity of HUD programs.”

New York State Police Superintendent Steven G. James said, “The individuals charged in this case stole funds from unsuspecting citizens, using the money for their own personal benefit. We will not tolerate the conduct of those who take advantage of their position to steal money that was meant to benefit people in need. I commend everyone who worked on this case – our members and all our partners – who have now ensured that the two people responsible for this crime are held fully accountable.”

Hoffman served as the executive director of WCHA, a government-funded apartment complex for low-income senior citizens and individuals with disabilities, from 2016 to 2021. Pais, Hoffman’s mother, was hired by the WCHA board and served as accounts payable bookkeeper from 2016 to 2020.

Based upon an anonymous tip, Comptroller DiNapoli’s Office and the HUD OIG commenced an investigation of all monies controlled by Hoffman and found that she had been making personal purchases with housing authority funds since 2016, her entire tenure as executive director. In total, Hoffman stole over $48,000 from WCHA by using WCHA’s financial accounts and credit lines for unauthorized personal expenses including retail purchases, personal cell phone bills, and groceries. Additionally, Hoffman submitted over $1,000 in false reimbursements.

Through her role as the accounts payable bookkeeper, Pais facilitated and concealed Hoffman’s theft. Pais was responsible for reviewing claims and preparing checks for payment. Pais not only knew about Hoffman’s continuous theft and failed to report it to the board, but also made the illicit payments and then falsified records to cover for her daughter.

Hoffman pled to Grand Larceny in the Third Degree, charged as a crime of public corruption and Pais pled to Corrupting the Government in the Fourth Degree before Judge David A. Renzi at Jefferson County Court. The defendants are due back in court for sentencing on August 6, 2024.

###

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at https://www.osc.ny.gov/investigations, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

A union’s decision to dismiss a meritorious grievance does not constitute a breach of the duty of fair representation in the absence of evidence that the union’s decision was arbitrary or made in bad faith

22-2779-cv

Felton v. Loc. Union 804, Int’l Bhd. of Teamsters 

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER 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 THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3rd day of June, two thousand twenty-four. 

PRESENT: AMALYA L. KEARSE, JOSEPH F. BIANCO, STEVEN J. MENASHI, Circuit Judges.

 

JEFFERY FELTON, Plaintiff-Appellant,

v.

LOCAL UNION 804, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, (IBT), UNITED PARCEL SERVICE INC., (UPS), Defendants-Appellees.

 

FOR PLAINTIFF-APPELLANT:

YENISEY RODRIGUEZ-MCCLOSKEY, Rodriguez McCloskey PLLC, Brooklyn, New York.

 

FOR DEFENDANTS-APPELLEES:

NATHANIEL K. CHARNY (H. Joseph Cronen, on the brief), Charny & Wheeler P.C., Rhinebeck, New York, for Local Union 804, International Brotherhood of Teamsters.

SHAWN MATTHEW CLARK, Littler Mendelson, P.C., New York, New York, for United Parcel Service Inc. 

Appeal from a judgment of the United States District Court for the Eastern District of New York (Ann M. Donnelly, Judge). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment, entered on September 27, 2022, is AFFIRMED. Plaintiff-Appellant Jeffery Felton appeals the district court’s dismissal with prejudice of his claims against Defendants-Appellees Local Union 804, International Brotherhood of Teamsters (the “Union”) and United Parcel Service Inc. (“UPS,” and together with the Union, “Defendants”).1 

This appeal arises from the second of two lawsuits in which Felton alleged that the Union breached its duty to represent him fairly at a grievance hearing following what he alleges was an unlawful termination of his employment at UPS. We assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal, to which we refer only as necessary to explain our decision to affirm. In January 2016, Felton was terminated from his job at UPS and filed with the Union a grievance for unjust discharge. Felton’s grievance proceeded to arbitration before an arbitrator and a panel consisting of three representatives from UPS and three from the Union, and his termination was ultimately upheld. In April 2017, Felton, proceeding pro se, brought an action against the Union and UPS, claiming that the Union breached its duty to fairly represent him at the arbitration. 

After granting Felton multiple opportunities to amend, the district court dismissed with prejudice his ninth amended complaint for failure to state a claim pursuant to Federal Rule of 1 Felton proceeded pro se in the district court, but he is now represented by counsel. 3 Civil Procedure 12(b)(6). Felton v. Loc. Union 804, Int’l Bhd. of Teamsters, Nos. 17-CV-2309 (AMD) (RML) et seq., 2020 WL 3104048, at *1 (E.D.N.Y. June 11, 2020) (“Felton I”). 

In March 2021, Felton commenced the instant action. In the operative third amended complaint, Felton alleged, as he had in the prior action, that the Union breached its duty to represent him fairly at the arbitration. Felton also alleged that newly discovered evidence in an unrelated case—namely, the deposition of Matthew Hoffman, one of the UPS representatives on his arbitration panel (the “Hoffman Deposition”)—warranted relief from the final judgment in the prior action. 

Because “[a] party seeking to file an amended complaint postjudgment must first have the judgment vacated or set aside pursuant to [Federal Rules of Civil Procedure] 59(e) or 60(b),” Ruotolo v. City of N.Y., 514 F.3d 184, 191 (2d Cir. 2008), the district court construed Felton’s pro se complaint as including a motion under Rule 60(b)(2). 2 Felton v. Loc. Union 804, Int’l Bhd. of Teamsters, No. 21-CV-1628 (AMD) (RML), 2022 WL 4468290, at *2 (E.D.N.Y. Sept. 26, 2022) (“Felton II”). 

After concluding that Felton had not satisfied the standard for relief under Rule 60(b)(2), the district court granted Defendants’ motion to dismiss the complaint on the ground of res judicata. Felton challenges both rulings on appeal. 

I. Rule 60(b) Motion 

We review denials of relief under Rule 60(b) for an abuse of discretion. United States v. Int’l Bhd. of Teamsters, 247 F.3d 370, 391 (2d Cir. 2001). “A district court is said to abuse its discretion if it bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or renders a decision that cannot be located within the range of permissible 2 Rule 60(b)(2) provides that “the court may relieve a party or its legal representative from a final judgment, order, or proceeding [due to] . . . newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b).” Fed. R. Civ. P. 60(b)(2). 4 decisions.” Gomez v. City of New York, 805 F.3d 419, 423 (2d Cir. 2015) (per curiam) (alteration adopted) (internal quotation marks and citation omitted).

As we have emphasized, Rule 60(b) is “a mechanism for ‘extraordinary judicial relief’” and may be “invoked only if the moving party demonstrates ‘exceptional circumstances.’” Ruotolo, 514 F.3d at 191 (quoting Paddington Partners v. Bouchard, 34 F.3d 1132, 1142 (2d Cir. 1994)). Rule 60(b)(2) poses a particularly “onerous standard,” Int’l Bhd. of Teamsters, 247 F.3d at 392, requiring a movant to show that: “(1) the newly discovered evidence was of facts that existed at the time of trial or other dispositive proceeding, (2) the movant [was] justifiably ignorant of them despite due diligence, (3) the evidence [is] admissible and of such importance that it probably would have changed the outcome, and (4) the evidence [is] not . . . merely cumulative or impeaching,” Mirlis v. Greer, 952 F.3d 36, 50 (2d Cir. 2020) (internal quotation marks and citations omitted). The district court had dismissed Felton’s prior action after finding that the allegations in his ninth amended complaint did not “demonstrate that the Union acted irrationally or in bad faith in representing [him].” Felton I, 2020 WL 3104048, at *2.

In the third amended complaint in the instant action, Felton contends that his discovery of the Hoffman Deposition warrants relief from the prior judgment because Hoffman’s testimony indicates that the Union representatives on the arbitration panel agreed with the UPS representatives and voted to uphold Felton’s termination. Felton had previously been told that the arbitrator denied his grievance because the Union and UPS panel representatives were deadlocked. Accordingly, in Felton’s view, the Hoffman Deposition would have changed the outcome of the prior action because it revealed “that UPS and the Union were both against [him,] highlight[ing] that [he] was not represented and was duped into believing that the Union was on his side and advocating for him.” Appellant’s Reply Br. at 7–8. 5 The district court concluded that the alleged new evidence would not have affected its decision to dismiss Felton’s prior action, and we discern no error in that analysis.

The fact that the Union representatives on the arbitration panel may have voted to dismiss Felton’s grievance does nothing to bolster his claim that the Union breached its duty of fair representation because Felton has failed to provide any allegations to plausibly support a claim that the votes—or the Union’s actions at the arbitration overall—were arbitrary or in bad faith. Cf. Vaca v. Sipes, 386 U.S. 171, 194–95 (1967) (concluding that a union’s decision to dismiss a meritorious grievance does not constitute a breach of the duty of fair representation in the absence of evidence that the union’s decision was arbitrary or made in bad faith). And even if we assume that the Union inaccurately described the precise distribution of the votes cast at the arbitration, that also does not show that the Union’s actions were arbitrary or in bad faith. See Spellacy v. Airline Pilots Ass’n-Int’l, 156 F.3d 120, 126 (2d Cir. 1998) (“Plaintiffs must . . . demonstrate a causal connection between the union’s wrongful conduct and their injuries.”).

Thus, because the Hoffman Deposition would not have changed the outcome in Felton’s prior case, we affirm the district court’s denial of relief under Rule 60(b).3 See Int’l Bhd. of Teamsters, 247 F.3d at 392. 3 The district court held in the alternative that Rule 60(b) relief was not warranted because the Hoffman Deposition was “clearly available while [Felton’s] prior lawsuit was pending.” Felton II, 2022 WL 4468290, at *2. On appeal, Felton challenges this conclusion, arguing that the “opportunity to depose Hoffman in the 2017 Action does not mean that he could have discovered this exact evidence,” and that “[t]he simple fact is that this evidence did not at all exist at the time that the 2017 Action was commenced.” Appellant’s Br. at 31; see also UPS Br. at 7 (acknowledging that “it may be true that the District Court erred in stating that this [evidence] was available while [Felton’s] lawsuit was pending”). 

However, we need not address this argument on appeal because we affirm the district court’s denial of relief on an alternative basis—namely, that the evidence would not have affected the outcome of the case. See Lotes Co. v. Hon Hai Precision Indus. Co., 753 F.3d 395, 413 (2d Cir. 2014) (“[We] may affirm on any basis for which there is sufficient support in the record.” (internal quotation marks and citation omitted)). 6 

II. Motion to Dismiss 

We review de novo a district court’s dismissal of a complaint on the ground of res judicata. See TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 498 (2d Cir. 2014). “A court may consider a res judicata defense on a Rule 12(b)(6) motion to dismiss when the court’s inquiry is limited to the plaintiff's complaint, documents attached or incorporated therein, and materials appropriate for judicial notice.” Id.; see also Day v. Moscow, 955 F.2d 807, 811 (2d Cir. 1992) (“[W]hen all relevant facts are shown by the court’s own records, of which the court takes notice, the defense [of res judicata] may be upheld on a Rule 12(b)(6) motion without requiring an answer.”). 

“Under the doctrine of res judicata, or claim preclusion, ‘a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.’” St. Pierre v. Dyer, 208 F.3d 394, 399 (2d Cir. 2000) (alteration adopted) (quoting Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981)). Here, after declining to vacate the prior judgment, the district court dismissed Felton’s complaint on the ground of res judicata, finding that it “ma[de] the same claims against the same defendants and relie[d] on exactly the same facts about his termination and grievance hearing.” Felton II, 2022 WL 4468290, at *3. Felton challenges the district court’s dismissal on appeal, arguing that the doctrine of res judicata does not apply in the Rule 60(b) context and that, because the district court decided to construe his complaint as a Rule 60(b) motion, it could not rule on defendants’ motion to dismiss in the same order. We are not persuaded. As a threshold matter, the district court properly considered Defendants’ motion to dismiss under Rule 12(b)(6) after determining that Felton was not entitled to relief under Rule 60(b). 

The district court did not, as Felton contends, erroneously apply two contradicting legal standards. Instead, it construed his complaint as containing a Rule 60(b) motion to vacate the prior judgment so that, if that motion were successful, he could then avoid dismissal of his complaint under the 7 doctrine of res judicata. See, e.g., Campaniello Imps., Ltd. v. Saporiti Italia S.p.A., 117 F.3d 655, 661 (2d Cir. 1997) (“Res judicata does not preclude a litigant from making a direct attack upon the judgment before the court which rendered it.” (alteration adopted) (internal quotation marks and citation omitted)); Bettis v. Kelly, 137 F. App’x 381, 382 (2d Cir. 2005) (summary order) (affirming dismissal of complaint under the doctrine of res judicata, notwithstanding allegations that appellees had withheld information during the prior litigation because “any allegations of misconduct in the prior litigation should have been raised in an appropriate challenge to that judgment”). By doing so, the district court adhered to the well-settled rule that pro se submissions be “liberally construe[d] . . . to raise the strongest arguments they suggest.” McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017) (per curiam) (internal quotation marks and citation omitted). In short, despite Felton’s arguments to the contrary, the district court’s decision to construe Felton’s pro se complaint as including a Rule 60(b) motion did not deprive it of its ability to address the motion to dismiss in the same decision once it ruled on the Rule 60(b) motion. See, e.g., Serzysko v. Chase Manhattan Bank, 461 F.2d 699, 701–03 (2d Cir. 1972) (per curiam) (affirming district court’s order denying plaintiff’s Rule 60(b) motion and granting defendant’s motion to dismiss for failure to state a claim). 

The district court’s opinion carefully analyzed the two motions before it in separate sections, applying the relevant legal standards to each. Thus, the district court committed no procedural error in its disposition of the motions. To the extent that Felton argues that the district court’s analysis under Rule 12(b)(6) was inconsistent with its Rule 60(b) determination, we disagree. Once it determined that there was no basis to vacate the prior judgment under Rule 60(b), the district court properly concluded that Felton’s complaint was barred by res judicata. “Res judicata bars re-litigation if (1) the previous action involved an adjudication on the merits; (2) the previous action involved the plaintiffs or 8 those in privity with them; [and] (3) the claims asserted in the subsequent action were, or could have been, raised in the prior action.” Soules v. Connecticut, 882 F.3d 52, 55 (2d Cir. 2018) (underlining, internal quotation marks, and citation omitted). The district court’s dismissal of Felton’s complaint in the prior action for failure to state a claim under Rule 12(b)(6) was a judgment on the merits, see Federated Dep’t Stores, Inc., 452 U.S. at 399 n.3, and as the district court correctly noted, in the instant lawsuit “[Felton] makes the same claims against the same defendants and relies on exactly the same facts about his termination and grievance hearing,” which were the subject of the dismissal in the prior action, 2022 WL 4468290, at *3. 

Accordingly, Felton may not assert the same claims in the instant action. See Soules, 882 F.3d at 55. Felton contends that res judicata is inapplicable here because of newly discovered evidence. To be sure, despite the “general rule [that] newly discovered evidence does not preclude the application of res judicata,” we have recognized that “[e]xceptions to this rule exist when the evidence was either fraudulently concealed or when it could not have been discovered with due diligence.” Saud v. Bank of N.Y., 929 F.2d 916, 920 (2d Cir. 1991). 

Here, however, as discussed above with respect to the Rule 60(b) motion, the district court correctly determined that the Hoffman Deposition would not have provided a basis for asserting a plausible claim for breach of the duty of fair representation, and thus would not have changed the outcome. See, e.g., TAL Props. of Pomona, LLC v. Village of Pomona, No. 22-1826, 2023 WL 2924571, at *3 (2d Cir. Apr. 13, 2023) (summary order) (affirming dismissal of complaint on the ground of res judicata, notwithstanding appellants’ argument that “newly discovered evidence” supported an exception, because the purported new evidence would “have not changed the outcome” (citing Waldman v. Village of Kiryas Joel, 207 F.3d 105, 113 (2d Cir. 2000))); see also TechnoMarine, 758 F.3d at 501 (observing that even when new facts post-date commencement of the earlier action, such facts 9 must be “legally significant” to avoid res judicata). Accordingly, the district court properly recognized the res judicata effect of the prior judgment and dismissed Felton’s complaint. * * * 

We have considered Felton’s remaining arguments and find them to be without merit. 

Accordingly, we AFFIRM the judgment of the district court. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court

 

Daughter pleads guilty to stealing $85,000 in NYS pension payments meant for her deceased father

On June 6, 2024, State Comptroller Thomas P. DiNapoli and Albany County District Attorney David Soares reported that a 37-year-old Queens woman pleaded guilty today to felony grand larceny for stealing nearly $85,000 in New York state pension payments meant for her deceased father. The defendant, Deanna Hansen, faces up to 28 months to seven years in prison and will pay full restitution as part of the plea.

“Deanna Hansen callously exploited her father’s death to steal from the New Your State Retirement System,” DiNapoli said. “Thanks to the work of my office and Albany County District Attorney David Soares, she has been held accountable.”

“The New York State and Local Retirement System is structured to benefit those who have dedicated years of their life to public service. Instead of acknowledging and respecting the intended purpose, the defendant assumed her deceased father’s identity for personal gain,” Soares said. “I hope this resolution deters anyone who might think of gaming the system. I’d like to thank ADA Bill Andrews for handling this case, and the Albany County Sheriff’s Office for their work in bringing this case to a close. This office, along with our partners in the New York State Comptroller’s Office, will do our best to make sure crime doesn’t pay by holding offenders accountable.”

Deanna Hansen’s father retired from the state Department of Transportation in March 2003. He was receiving a direct deposit of his pension into a bank account that was in his and his deceased wife’s name. He died in April 2020, at which time the pension payments should have stopped.

Investigators determined a total of $84,754.13 in pension payments were paid into Hansen’s father’s account after his death and then fraudulently taken by Deanna Hansen.

In July 2022, the state retirement system learned that the defendant’s father had died and stopped payments. At that time, Hansen contacted the retirement system about beneficiary information.

A review of the deceased pensioner’s account showed that Deanna Hansen, who was not listed as a signatory or account holder, received $67,423 through an online payment platform from the account. Additionally, $14,914 from the account was paid to the management company of her father’s condominium, where she resided.

Hansen appeared before Judge Roger D. McDonough in Albany County Court. Sentencing was scheduled for Sept. 13.

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Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by mailing a complaint to the Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, New York or via the Internet by clicking the following URL: https://www.osc.state.ny.us/investigations.

 NY 12236.

New York State's Governor Kathy Hochul announces ratification of 3-year labor agreement with PBA

Governor Kathy Hochul today announced the ratification of a three-year labor agreement with the Police Benevolent Association of New York State, which includes more than 1,100 members of the New York State Agency Police Services Unit in titles such as Forest Ranger, Environmental Conservation Officer, Park Patrol Officer and University Police Officer. The agreement, which runs until March 31, 2026, won the approval of 97 percent of PBA of New York State members who cast ballots. 

The Agreement with New York State Agency Police Services Unit covers more than 1,100 New York State employees and includes yearly salary increases, increases in location pay, up to 12 weeks fully paid parental leave, and changes in health benefits.

“This labor agreement will help guarantee fair compensation for the fearless members of the Agency Police Services Unit of the PBA of New York State for their extraordinary contributions to our state,” Governor Hochul said. “I appreciate the partnership of the PBA of New York State’s leadership throughout negotiations and thank its membership for their hard work and resolve in keeping New Yorkers safe, particularly our visitors to the Empire State’s parks and environmental areas and the members of our university communities.”

The ratified contract includes raises in each year of the agreement consistent with other recently negotiated agreements. In addition, the contract includes other increases in compensation such as a lump sum bonus and up to 12 weeks of fully paid parental leave. The contract also includes changes in the health insurance program that will encourage in-network employee utilization and help control health insurance costs.

Police Benevolent Association of New York State President Jim McCartney said, “The PBA of New York State is pleased that following exhaustive negotiations with the state Office of Employee Relations our members have overwhelmingly ratified a three-year contract with the State of New York. While this contract is a positive step forward and an improvement over our previous contract, much work remains to be done to provide a competitive compensation and retirement package that will aid in recruiting and retaining the most diverse and highly specialized state law enforcement officers.”

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