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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