Introducing a video tape of an event as evidence in a judicial or quasi-judicial proceeding

Introducing a video tape of an event as evidence in a judicial or quasi-judicial proceeding
2013 NY Slip Op 06292, Appellate Division, First Department

The availability of video cameras for employee surveillance is becoming an important issue in terms of employee privacy and the expectation of employees to privacy at the work site. It may also become an issue should a video tape of an incident is introduced in the course of an administrative disciplinary hearing.

In any event, video tape evidence must be presented without modification as the decision in Principe v New York City Dept. of Educ. 94 AD3d 431, demonstrates.

In Principe the Appellate Division said that it appeared that the hearing officer gave “an inordinate amount of credit” to a portion of a video recording that had been altered from its original format so that it appeared frame by frame at one-second intervals rather than its original format of a continuous video recorded in real time. The court commented that this alteration to the videotape made what actually transpired during that incident unclear and equivocal.*

In contrast, in People v Hill, a criminal action, the Appellate Division said that Supreme Court “properly denied defendant's suppression [of video tape evidence] motion, explaining that the surveillance video tape “was adequately authenticated by the testimony of a detective who, while working a second job for a security company, hooked up the surveillance cameras to the video recorder and checked on a daily basis that the system was functioning properly.”

The Appellate Division decided that “The detective's testimony, when viewed in the light of common sense, supports the conclusion that the video tape accurately and completely depicted the events at issue.”

Further, said the court, “that the detective testified to the unaltered condition of the tape, and any gaps in the chain of custody went to the weight to be accorded the evidence, not its admissibility.”

* Decisions concerning use of video records include DiMichel v South Buffalo Railway Company, 80 NY2d 184, reargument denied, Poole v Consolidated Rail Corp, 595 NYS 2d 397, cert den 114 SCt 68, 510 US 816, rearg dism 610 NYS2d 156

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_06292.htm
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Procedural defects result in dismissal of the petitioner's appeal to the Commissioner of Education

Procedural defects result in dismissal of the petitioner's appeal to the Commissioner of Education

Decisions of the Commissioner of Education, Decision No.16,555

The petitioner [Administrator] in this appeal holds certification as a school district administrator and a school administrator/supervisor and had been serving as the School District’s full-time Director of Pupil Personnel Services since 2004 

Administrator alleged that in 2011 she asked to have her position reduced from a full-time position to a .8 full time equivalent [FTE] position in connection with her maternity leave. The Board subsequently voted to reduce the professional obligation of the Director of Pupil Personnel Services position from a 1.0 FTE to a .8 FTE, effective July 1, 2011.

Administrator, claiming that it was her understanding that her position was reduced from a 1.0 FTE to a .8 FTE for the 2011-2012 school year only and that she would return to a 1.0 FTE position for the 2012-2013 school year, appealed the Board's action to the Commissioner of Education. Administrator contended that she had requested a reduction in her schedule only for the 2011 - 2012 school year and cited “her prior conversations with the superintendent” in support of her claim.

Administrator also argued that if her position was permanently reduced to a .8 FTE position, she had greater seniority in the administrative tenure area than did another administrator and therefore the other administrator should be assigned to the .8 FTE position.

The Commissioner first addressed a procedural issue involving the verification of the petition filed by Administrator.

Noting that the verification on Administrator's petition was dated "September 6, 2011," prior to the date of the petition, which was dated September 12, 2011, and Administrator's verified reply admitted that modifications were made to her petition after September 6, 2011, the Commissioner said that it was impossible to tell which allegations in the petition were properly verified. Accordingly, the Commissioner ruled that the petition was not properly verified and he elected not excuse this omission "as the defect was never cured."

Turning to the Board’s argument that Administrator’s appeal was untimely, the Commissioner said that he “must also dismiss the appeal as untimely.”

An appeal to the Commissioner of Education “must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown.”

In this instance, said the Commissioner, “ It appears from the record that the action resulting in the 20 percent reduction in [Administrator’s] position from which she seeks relief was taken by the board on March 28, 2011,” at which time the board “permanently reduced her position from a 1.0 FTE to a .8 FTE.”

Although Administrator alleged that she did not learn of this permanent reduction in her position to .8 FTE until August 19, 2011, the Commissioner said that he rejected that assertion, explaining that the record reflects that Administrator had “reached out to the School Administrators Association of New York State (“SAANYS”) and asked how these actions affect her employment rights.”

SAANYS responded to Administrator by letter dated April 5, 2011 in which SAANY stated that it was its “understanding is that the district’s board recently voted to reduce your position from full-time to a .8 position for the school year beginning July 1, 2011.”

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Further, said the Commissioner, in a letter dated May 13, 2011 from Board’s Counsel to SAANYS, Counsel was clearly stated that “The District wishes to initially clarify several statements in [SAANYS’s] letter. First, [Administrator] requested that her position be reduced to a .8 FTE position as of July 1, 2011” and “The district understood this request was not just for the 2011-2012 school year, but [was a request for] a permanent reduction.”

The Commissioner concluded that “From [the Board’s Counsel’s] letter, it is clear that it was the intent of the School Board to permanently reduce [Administrator’s] position. As the petition was not served until September 15, 2011, which is well over 30 days from the March board action and even the April and May letters, the appeal must also be dismissed as untimely.”

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume53/documents/d16555.pdf

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What the Federal Shutdown Means for State and Local Governments

What the Federal Shutdown Means for State and Local Governments

Source: Governing the States and Localities

 

GOVERNING has posted an article authored by staff writer Ryan Honeywell -- What the Federal Shutdown Means for State and Local Governments – on its website. GOVERNING staff writers Liz Farmer and J.B. Wogan contributed to this report.

The article introduces its analysis by noting that “State and local government budget experts say the first federal government shutdown in 17 years shouldn't be too disruptive to their operations in the short-term, but if it lasts more than a week, they could start to encounter serious challenges.”

The text of the report is posted on the Internet at:

http://www.governing.com/blogs/fedwatch/gov-what-a-federal-shutdown-means-for-state-and-local-governments.html
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Public figure’s complaint that false and defamatory statements were made about him dismissed as the record showed that the statements were true

Public figure’s complaint that false and defamatory statements were made about him dismissed as the record showed that the statements were true

2013 NY Slip Op 06083, Appellate Division, First Department

Plaintiff, a public figure [Figure], alleged that a New York City police detective “made false and defamatory statements about him to the press.” Figure sued but his petition was dismissed by Supreme Court.

In response to Figure’s appeal, the Appellate Division affirmed the lower court’s ruling, explaining that “The record demonstrates that all of the statements attributed to [the police detective] about [Figure] were true, namely, that [Figure] was being sought for questioning; that repeated efforts to locate [Figure] had been unsuccessful; and that the case involved an allegation of rape.

The Appellate Division then observed that “the fact that these truths may have been fatal to [Figure’s] bid for public office have no bearing on whether they were legally defamatory.”

Moreover, said the Appellate Division, Figure “failed to raise a triable issue of fact as to whether the alleged statements were actuated by ill will.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06083.htm
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Suspension of Federal Government Services -- U.S. Department of Labor Office of Administrative Law Judges

Suspension of Federal Government Services -- U.S. Department of Labor Office of Administrative Law Judges 

Administrative Order on Status of Hearings & Deadlines in Cases Pending Before the United States Department of Labor, Office of Administrative Law Judges:

 

The Chief Administrative Law Judge has issued a general order regarding the status of hearings and case related deadlines during the suspension of Federal government services.  

The order is posted on the Internet at:

In the Matter of Suspension of Government Operations During Lapse in Federal Funding, 

[USDL 2014-MIS-1 (Oct. 1, 2013]

Termination of General Municipal Law §207-a benefits

Termination of General Municipal Law §207-a benefits

2013 NY Slip Op 06162, Appellate Division, Fourth Department

A firefighter claimed that he suffered an injury to his neck and that as a result he was disabled from work. He was granted benefits pursuant to General Municipal Law §207-a. 

The City's Fire and Police Board then appointed a hearing officer and initiated administrative proceedings to determine if the firefighter’s §207-a benefits should be terminated. Ultimately the Hearing Officer's determined that firefighter's disability “was not causally related to his job duties” and recommended that the firefighter's §207-a benefits should be discontinued.

The Board adopted the findings and recommendation of the Hearing Officer and terminated the firefighter's §207-a benefits and the firefighter initiated an Article 78 action seeking a court order vacating the Board's decision.

The Appellate Division dismissed the firefighter’s challenge to the Board’s action, holding that the hearing officer’s determination was supported by substantial evidence.

Noting that the firefighter had presented evidence to support his claim that he had suffered a injury in the course of his performing his duties during the administrative hearing, the Appellate Division explained that "[t]he Hearing Officer was entitled to weigh the parties' conflicting medical evidence and to assess the credibility of witnesses, and [courts]  may not weigh the evidence or reject [the Hearing Officer's] choice where the evidence is conflicting and room for a choice exists.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06162.htm

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Filing an application with the court to have a local public official removed from his or her public office

Filing an application with the Appellate Division to have a local public official removed from his or her public office
2013 NY Slip Op 06141, Appellate Division, Fourth Department

Public Officers Law §36 permits a “citizen resident” of a town, village, improvement district or fire district to file an application seeking the removal of an officer of the jurisdiction, other than a justice of the peace, for alleged “… misconduct, maladministration, malfeasance or malversation in office” with the Appellate Division of Supreme Court.* The term maladministration is used to describe one's performing official duties corruptly or inefficiently, the term malfeasance refers to performing one's official duties inadequately or poorly, and the term malversation refers to the misuse of public or other funds while holding public office.

A member of the Town Council [Member A] initiated a proceeding in the Appellate Division pursuant to Public Officers Law §36 seeking the removal of another member of the Town Council [Member B] from office for alleged “wrongdoing.” Member A’s petition alleged instances of conflicts of interest and self-dealing on the part of Member B, an attorney with a legal practice in the Town.** 

1. Member A alleged that Member B filed a Notice of Claim against the town on behalf of a legal client after taking office, that Member B was the subject of a complaint of harassment filed by a town employee and that Member B “repeatedly [filing] frivolous actions" against the Town.

The Appellate Division held the Member B “conclusively refuted” all of Member A’s allegations, and that Member A failed to present evidence to the contrary sufficient to raise a triable issue of fact.

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2. Member A alleged that Member B had "repeatedly appeared" in the Town's Justice Court on behalf of his clients..

Member B, said the court, “conclusively refuted that allegation” by submitting an affidavit by a Town Justice who affirmed that Member B had not appeared in the Town's Justice Court "after taking his elected position." Member A, said the court, “failed to present any evidence to the contrary.”

3. Member A alleged that Member B circulated an email to a Town employee facing disciplinary charges.

The Appellate Division held that here was no indication that the e-mail constituted "confidential correspondence" that Member B should not have sent to that Town employee.

Accordingly, the Appellate Division dismissed Member A’s petition.

* §36 requires that the officer be notified of the fact that an application seeking his or her removal, together with a copy of the allegations, to be served on the official at least eight days prior to the filing of the application with the court.

** In Jones v Filkins, 238 AD2d 954, the Appellate Division indicated that removal of an individual from public office is appropriate in situations involving “self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06141.htm
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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending September 28, 2013

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending September 28, 2013

Click on text highlighted in color to access the full report

Statement of New York State Comptroller Thomas P. Dinapoli on EXXONMOBIL decision to offer benefits to same-sex married couples in the United States

This is a very positive step for the LGBT community and a vindication of years of efforts by shareholders and activists across the country. This policy would not have been possible without President Obama’s leadership in directing federal agencies to establish the “Place of Celebration” standard for recognition of same-sex marriages. He took a stand for human rights and the belief that everyone deserves equal treatment.

Corporate discrimination in any form is simply not good business. On behalf of those who have supported the New York State Common Retirement Fund’s shareholder resolutions on this issue over these past four years, I am gratified that ExxonMobil, one of the largest corporations in the world and one of the [NYS Employees’ Retirement] Fund’s largest holdings, will treat its employees with the dignity, equality and respect that they deserve.

  

DiNapoli: MTA Budget Outlook Improves

The Metropolitan Transportation Authority (MTA) is on stronger financial footing than seven months ago with $1.9 billion in unanticipated resources now expected to be available over the course of the financial plan period, yet it still plans to raise fares and tolls by 15 percent over a three–year period, according to an analysisof the MTA’s financial plan released Friday by New York State Comptroller Thomas P. DiNapoli. The MTA plans to use the bulk of the unanticipated resources to improve service and maintenance, reduce the size of projected budget gaps and help fund the next capital program.

A.G. Schneiderman Announces Arrest of Former Nonprofit Director For Involvement in Scheme to Steal More Than $5 Million

New York State Attorney General Eric T. Schneiderman announced Tuesday the arrest of William Rapfogel, former Executive Director and Chief Executive Officer of the Metropolitan Council on Jewish Poverty (“Met Council”), on felony charges of grand larceny, money laundering, criminal tax fraud, and conspiracy, among others. The Attorney General’s complaint charges Rapfogel with conspiring with others to inflate the rate of insurance policies paid by Met Council while pocketing the difference in cost, amounting to more than $5 million stolen from the organization over roughly 20 years. Rapfogel received payments on a regular basis in envelopes of cash and in the form of checks for personal expenses, such as payment for a home contractor.

DiNapoli: More Counties, Towns, Cities Identified in Fiscal Stress

Fourteen local governments, including Rockland, Suffolk, Nassau and Erie counties, have been designated as fiscally stressed in the latest update of State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System. The update was issued in conjunction with a reporthighlighting the similarities among localities listed in fiscal stress.

DiNapoli: Audit Uncovers $55,000 in Suspicious Spending at West Seneca Fire District

Officials with the West Seneca Fire District #6 spent nearly $55,000 in public funds for personal meals, travel expenses, expensive jewelry and internet and cable service, according to an audit and investigation by State Comptroller Thomas P. DiNapoli. The case was referred to Erie County District Attorney Frank A. Sedita. Based on the Comptroller’s audit, Sedita’s office charged district treasurer Diane Nowicki with petit larceny. She appeared in Orchard Park town court on Sept. 26 where she pleaded guilty.

Statement of State Comptroller Thomas P. DiNapoli on Qualcomm leading CPA–Zicklin Index of Corporate Political Spending Disclosure

New York State Comptroller Thomas P. DiNapoli Wednesday applauded Qualcomm Inc. for achieving a top ranking in the 2013 CPA–Zicklin Index of Corporate Political Accountability and Disclosure. This new recognition comes after the New York State Common Retirement Fund and Qualcomm reached an agreement for the company to disclose how shareholder funds are used for political purposes.

Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli announced his office completed audits of:

the Andover Central School District,

the Gloversville Enlarged School District,

the Hancock Central School District, and

the Laurens Central School District.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli announced his office completed audits of

the Village of Keeseville,

the Wantagh Fire District, and

 the Town of Wheatfield.
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Moreland Commission to Investigate Public Corruption update

Moreland Commission to Investigate Public Corruption update

The first Moreland Commission to Investigate Public Corruption hearing, held on September 17th, 2013 in New York City, heard testimony focusing on federal and state criminal laws and the adequacy of existing state laws, rules and regulations involving misconduct by public officials.

A 3 ½  hour video of the hearing is posted on U-tube at:

http://www.youtube.com/watch?v=LP1GeOYKRas

The second Moreland Commission to Investigate Public Corruption hearing, held on September 24, 2013, in Albany, New York, heard testimony focusing on campaign finance, outside income of state elected officials and political party housekeeping accounts.

A 2 ½ hour video of the hearing, is posted on U-tube at: 
http://www.youtube.com/watch?v=iLEhNUVdQaU
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Excessed employees in Japan are assigned to “the chasing-out room”

Excessed employees in Japan are assigned to “the chasing-out room”

Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2013, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, New York Law School, All rights reserved.

“Sony, [the] employer of [the] individual for 32 years, consigned him to a room because [it] can’t get rid of him. Sony had eliminated his position at the Sony Sendai Technology Center, which in better times produced magnetic tapes for videos and cassettes. But the individual, now age 51, refused to take an early retirement offer from Sony in late 2010 — his prerogative under Japanese labor law.

“So there he sits in what is called the “chasing-out room.” He spends his days there, with about 40 other holdouts.”

The full text of the article is posted on the Internet at: http://nyti.ms/14UNtAQ 

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