Civil Service Commission's decision in an appeal to the employer's disciplinary determination is reviewable by the court

Civil Service Commission's decision in an appeal to the employer's disciplinary determination is reviewable by the court

City School District of Lockport v. Cappola, 83 A.D.2d 751, motion for leave to appeal denied, 57 N.Y.2d 607

An employee appealed the employer’s finding that the individual was guilty of certain disciplinary charges it filed against the worker pursuant to §75 of the Civil Service Law and the penalty it imposed, suspension without pay for two days, to the Civil Service Commission as provided by §76.1 of the Civil Service Law.

§76.1, in pertinent part, provides as follows:  “Any officer or employee believing himself aggrieved by a penalty or punishment of demotion in or dismissal from the service, or suspension without pay, or a fine, or an official reprimand, unaccompanied by a remittance of said officer or employee's prehearing suspension without pay, imposed pursuant to the provisions of section seventy-five of this chapter, may appeal from such determination either by an application to the state or municipal commission having jurisdiction, or by an application to the court in accordance with the provisions of article seventy-eight of the civil practice law and rules.”

The Commission vacated the employer’s determination, ruling that there was insufficient evidence in the record to support the findings of the hearing officer.

The Employer appealed the Commission’s determination.

Noting that although the text of the Civil Service Law §76.3 states, in pertinent part, “The decision of such [state or municipal] civil service commission shall be final and conclusive, and not subject to further review in any court.” the Appellate Division ruled that the Commission’s decision was, indeed, reviewable by the court, explaining that “Despite the language which seems to preclude judicial review, a CPLR article 78 proceeding will lie where it is alleged that the Commission's decision was ‘purely arbitrary’ or where the penalty imposed by the Commission is challenged as an abuse of discretion.”

The court then sustained the Commission’s decision as reasonable.

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Complaint alleging violations of the State’s and New York City’s Human Rights Laws dismissed for failure to establish a prima facie case of unlawful discrimination

Complaint alleging violations of the State’s and New York City’s Human Rights Laws dismissed for failure to establish a prima facie case of unlawful discrimination

2014 NY Slip Op 02696, Appellate Division, First Department

State Supreme Court Judge Arthur F. Engoron granted the employer’s motion to dismiss the unlawful discrimination, hostile work environment, and retaliation claims under the State and City Human Rights Laws (HRL) (Executive Law §290 et seq.; Administrative Code of City of NY §8-101 et seq.), filed by one of its employees, [Plaintiff].

Construing the complaint liberally, presuming its factual allegations to be true, and according it the benefit of every possible favorable inference, the Appellate Division sustained the lower court’s ruling explaining that Plaintiff failed to adequately plead that she was subjected to an adverse employment action as none of the allegations set out in her complaint rises to the level of an actionable adverse employment action.

In addition the court found that Plaintiff failed to adequately plead discriminatory animus, which is fatal to both her discrimination and hostile environment claims as her complaint does not contain any allegations of any comments or references to Plaintiff's age or race made by any employee of employer.

Further, said the Appellate Division, Plaintiff’s petition does not contain any factual allegations demonstrating that similarly situated individuals who did not share Plaintiff's protected characteristics were treated more favorably than Plaintiff and her “conclusory allegations of a hostile environment are insufficient to state a claim under either the State or City Human Rights Laws.

Plaintiff’s allegations of “retaliation” faired no better as she failed to plead any facts regarding when the alleged retaliatory incidents occurred or how those incidents were causally connected to any protected activity, nor did she state the substance of her alleged complaints, to whom she allegedly complained, or when such complaints were made.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_02696.htm
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Security of government computer records

Security of government computer records

State Technology Law and other provisions of law

A town recently reported that its accounting program was the victim of hacking and a number of “payroll checks” were processed and presented for payment. Although the town’s bank “caught” the fraudulent checks, the town expressed concern that personal information in its system may have been compromised and asked its attorney to advise it as to its possible liability to individuals who may suffer as a result of the theft of personal data.

To assist public agencies to cope with the increasing number of attempts to breach computer security efforts, the New York State Office of Cyber Security has issued its Cyber Security Policy P03-002, Information Security Policy, posted on the Internet at http://www.dhses.ny.gov/ocs/resources/documents/cyber-security-policy-p03-002-v3.4.pdf, while the State Comptroller’s Division of Local Government and School Accountability has issued a “Local Government Information Security” statement that is posted on the Internet at http://www.osc.state.ny.us/localgov/pubs/research/snapshot/cybersecurity0811.pdf

A “Cyber Security Citizen’s Notification Policy” has been adopted by municipalities to deal with a breach of its computer security protocols. For example, the Village of North Hills has such a policy it has posted on the Internet [ http://ecode360.com/6309491] as has the Town of Massena [see http://ecode360.com/11058454]. 

In addition, General Business Law §899-aa, the Security Breach and Notification Act, addresses situations resulting from persons without valid authorization having acquired private information stored on an business  entity's computer..

Also relevant is §208(8) of the State Technology Law captioned “Notification; person without valid authorization has acquired private information,” requiring counties, cities, towns, villages and other governmental entities to adopt a computer security “breach notification policy.”

In addition, §308.1 of the act provides as follows with respect to personal privacy protection:

"Any information reported to the electronic facilitator by a government entity in connection with the authorization of an electronic signature shall continue to be withheld from public disclosure if such information was withheld from public disclosure by such government entity. Electronic records shall be considered and treated as any other records for the purposes of the freedom of information law as set forth in article six of the public officers law and the personal privacy protection law as set forth in article six-A of the public officers law.

“2. A person or an entity that acts as an authenticator of electronic signatures shall not disclose to a third party any personal information reported to it by the electronic signatory other than the information necessary to authenticate the signature unless the disclosure is made pursuant to a court order or statute, or if the information or data is used solely for statistical purposes in aggregate form. For purposes of this section, "personal information" shall mean data that identifies a specific person, including but not limited to home and work addresses, telephone number, e-mail address, social security number, birthdate, gender, marital status, mother's maiden name, and health data.”
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