Fiscal stress remains low among villages

Fiscal stress remains low among villages
Ten Villages, Two Cities Cited in Latest Fiscal Stress Scoring

Click on text highlighted in color to access the full report.

State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System has identified 10 villages and two cities in New York in some level of fiscal stress in 2017. The system evaluated all non-calendar year local governments and designated one village and one city in “significant fiscal stress,” four villages in “moderate fiscal stress” and five villages and one city as “susceptible to fiscal stress.”

“Our indicators show fiscal stress is relatively low among New York's villages,” said DiNapoli. “I continue to encourage local officials to be mindful about how practices today might impact budgetary solvency in the future. Our monitoring system helps keep local officials and the public informed on this important community issue each year, including the economic and demographic drivers of fiscal stress.”

DiNapoli’s office evaluated 529 villages, which predominantly have a fiscal year ending on May 31. The most recent round of scoring also assessed the 17 cities in New York with non-calendar fiscal years.

This is the fifth year DiNapoli’s office has assessed levels of fiscal stress in local governments. Using financial indicators that include year-end fund balance, cash position, short-term borrowing and patterns of operating deficits, DiNapoli’s monitoring system creates an overall fiscal stress score which ultimately drives final classifications.

For the fiscal year ending 2017, the city of Long Beach (Nassau Co.) and the village of Island Park (Nassau) were designated in “significant fiscal stress.”

The villages of Andover (Allegany), Ellenville (Ulster), Granville (Washington) and Valley Stream (Nassau) were listed in “moderate fiscal stress.” The city of Yonkers (Westchester) and the villages of Baldwinsville (Onondaga), Canisteo (Steuben), Catskill (Greene), Dering Harbor (Suffolk) and Walden (Orange) were designated as “susceptible to fiscal stress.”

The fiscal stress scores also show that in 2017:

Three villages moved out of fiscal stress and four villages moved into a fiscal stress category; and

Forty-four villages failed to file the necessary and required annual financial reports and did not receive a score.

In January, DiNapoli released fiscal stress scores for school districts. In September, his office will release scores for municipalities with a calendar-year fiscal year, which includes all counties, towns, 10 villages, and the majority of cities.

DiNapoli's office recently implemented system enhancements which were developed with direct input from local government and school district officials. The changes provide local officials with more easy-to-understand information that can help them address specific challenges facing their communities.

For a full list of villages and cities in fiscal stress, visit:

http://www.osc.state.ny.us/localgov/fiscalmonitoring/localgovernments/munis-stressed.htm

To search the complete list of fiscal stress scores, visit:

http://wwe1.osc.state.ny.us/localgov/fiscalmonitoring/fsms.cfm

Distinguishing between official acts and unofficial acts for the purposes of claiming qualified immunity from lawsuits in New York State courts

Distinguishing between official acts and unofficial acts for the purposes of claiming qualified immunity from lawsuits in New York State courts

Zervos v Trump, NYS Supreme Court, Index No. 150522/17

Judge Jennifer G. Schecter, citing Clinton v Jones, 520 US 681 [Clinton], held that a sitting president is not immune from being sued in state courts for unofficial acts* and denied President Donald J. Trump's [Defendant] motion to dismiss Summer Zervos' [Plaintiff] petition.

Plaintiff had alleged that in 2007 Defendant had subjected her to unwelcome "sexually inappropriate misconduct" and then defamed her after she had "publicly described her interactions with [Defendant] in detail, including his unwanted sexual misconduct" at a press conference on October 16, 2016.

Plaintiff alleged later that same day, Defendant responded in a statement that was widely reported and appeared on his campaign website that "[t]o be clear, I never met [Plaintiff] at a hotel or greeted her inappropriately a decade ago. That is not who I am as a person and it is not how I've conducted my life." Subsequently Defendant stated Plaintiff's "allegations are 100% false". . They are made up, they never happened ..." at campaign rallies.

A false statement tending "to expose a person to public contempt, hatred, ridicule, aversion or disgrace constitutes defamation" and in this action Plaintiff alleged that the public statements made by the Defendant that Plaintiff's "allegations are 100% false ... They are made up, they never happened" constitute defamation.

The court explained that "No one is above the law" and as the Supreme Court held in Clinton, "the President of the United States has no immunity and is 'subject to the laws' for purely private acts." Any such immunity was grounded "the nature of the function performed, not the identity of the actor who performed it."

Then-President William Jefferson Clinton was required to defend himself against a civil-rights action that included a state-law defamation claim in federal court and the Supreme Court rejected Clinton's argument that "interactions between the Judicial Branch and the Executive, even quite burdensome interactions, necessarily rise to the level of constitutionally forbidden impairment of the Executive's ability to perform its constitutionally mandated functions" and the rule is no different with respect to commencing litigation related to a  President's unofficial conduct in a state court.

The court noted that in Davis v Blenheim, 24 NY3d 262 , the New York State Court of Appeals determined that a defamation action could be maintained against a defendant who called individuals claiming to have been victims of sexual abuse liars and stated that he believed that they were motivated by money to go public. The Court concluded that the statements were susceptible to a defamatory connotation because they communicated that defendant had information unknown to others that justified his statements that the individuals were neither credible nor victims of abuse.

Judge  Schecter opined that "Defendant -- the only person other than plaintiff who knows what happened between the two of them -- repeatedly accused plaintiff of dishonesty not just in his opinion but as a matter of fact. He not only averred that plaintiff told 'phony stories' and issued statements that were 'totally false' and 'fiction,' he insisted that the events 'never happened' and that the allegations were '100% false [and] made Up.'" The court said that "[a]  reader or listener, cognizant that Defendant knows exactly what transpired, could reasonably believe what Defendant's statements convey: that Plaintiff is contemptible because she 'fabricated' events for personal gain."

Referring to the means of communication used by Defendant, the court said the "[m]ost importantly, in their context, Defendant's repeated statements -- which were not made through op-ed pieces or letters to the editor but rather were delivered in speeches, debates and through Twitter, a preferred means of communication often used by Defendant -- cannot be characterized simply as opinion, heated rhetoric or hyperbole." Further, the fact that Defendant's statements about Plaintiff's veracity were made while he was campaigning to become President of the United States, "does not make them any less actionable."

Accordingly, Judge Schecter ruled that the Plaintiff's complaint sufficiently stated a cause of action.

* The distinction made between "official actions" and "personal activities" is reflected in §17 [Defense and indemnification of state officers and employees in civil actions]; §18 [Defense and indemnification of officers and employees of public entities in civil actions]; and §19 [Reimbursement of defense costs incurred by or on behalf of state employees in criminal action] of the Public Officer Law. Essentially these sections provide that the employer shall provide for the defense and indemnification of the officer or employee in any civil action or proceeding in any state or federal court arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the officer or employee was acting within the scope of his or her public employment or duties.

The decision is posted on the Internet at:

https://www.politico.com/f/?id=00000162-44a5-de1c-abfe-6cbd18470002

Review of decisions that are the product of compulsory arbitration are subject to stricter judicial scrutiny than decisions resulting from voluntary arbitration procedures

Review of decisions that are the product of compulsory arbitration are subject to stricter judicial scrutiny than decisions resulting from voluntary arbitration procedures
Berkley v New York City Dept. of Educ., 2018 NY Slip Op 01669, Appellate Division, First Department

The standard of review mandated by Education Law §3020-a(5)(a) is that set out in  CPLR Article 75. Article 75 provides that an arbitration award may be vacated only on a showing of misconduct, bias, exceeding of power or procedural defects as set out in 7511(b)1.* Further, where the arbitration is compulsory, as it is with respect to appeals from a §3020-a administrative disciplinary decision, judicial scrutiny is stricter than applicable in reviewing a determination resulting from a voluntary arbitration proceeding.

Supreme Court granted the New York City Department of Education's [Education] motion to confirm a §3020-a hearing officer's award terminating an educator's [Educator] employment as a school teacher with Education. Educator appealed the Supreme Court's decision, which ruling was unanimously affirmed by the Appellate Division.

Educator had argued that his due process rights were violated because [1] a specification in the charges filed against him "did not allege the specific date of the misconduct" and [2] the hearing officer improperly relied on hearsay evidence that included out-of-court statements by students.

The Appellate Division indicated that with respect to specification in charges that did not indicate the specific date or dates of the alleged misconduct, due process in the context of administrative hearings requires only that the charges be "reasonably specific, in light of all the relevant circumstances, to apprise the party whose rights are being determined of the charges against him [or her] . . . and to allow for the preparation of an adequate defense."

The Appellate Division held that Supreme Court had properly found that Educator's due process rights were not violated by the failure to specify the date he was alleged to have engaged in the charged misconduct in that he was provided with enough information to mount an adequate defense. Moreover, at the hearing, he did not indicate any vagueness with regard to the incident, since he knew the name of the student who made the complaint and had received statements by other students in the room at the time.

With respect to Educator's claim that his due process rights violated by the hearing officer's partial reliance on hearsay evidence , the Appellate Division explained that hearsay evidence may be the basis of an administrative determination, as Educator had himself acknowledged. Further, noted the court, the challenged hearsay evidence "was supported by the testimony of various school administrators and aides," who were subject to cross-examination by Educator.

In addition, the Appellate Division held that Supreme Court had correctly concluded that the hearing officer's decision was supported by the record, in that ample evidence, including Educator's admissions, supported the finding of the hearing officer and that the  hearing officer was entitled to reject Educator's explanations based on an assessment of Educator's credibility.

As to the penalty imposed, the termination of Educator's employment with Education,  the Appellate Division held that the penalty imposed "does not shock the conscience in light of the seriousness of the misconduct and [Educator's] failure to heed warnings."

* The First Department noted that it has applied a "hybrid" standard which incorporates the arbitrary and capricious test in CPLR article 78 as well.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_01669.htm

Employee's claim of constructive dismissal as a result of taking FMLA leave dismissed

Employee's claim of constructive dismissal as a result of taking FMLA leave dismissed

Groening v Glen Lake Community School, USCA, Sixth Circuit, Docket #17-1848

Joan Groening, the superintendent of Glen Lake Community Schools, underwent surgery that required her taking six weeks of Family and Medical Leave Act,  [FMLA] leave. She then returned to work part-time. Later Groening's elderly mother fell ill and Groening took intermittent FMLA leave to care for her throughout the rest of the school year.

When the board told her that it was "hesitant to approve her travel plans for an upcoming conference" Groening submitted a "notice of retirement" to take effect at the end of the following academic year. 

Groening’s contract provided for ninety days of paid leave per year and a payout for any unused days when she retired and asked Groening for a report of the leave she had taken during the then current school year. Groening 's report indicated that her absences on leave, vacation, and business trips totaled twelve weeks. When the board told her that it was "hesitant to approve her travel plans for an upcoming conference" Groening submitted a "notice of retirement" to take effect at the end of the following academic year.

Deciding that it needed to clear up any discrepancies in Groening's leave records before the end of the following school year, the school board voted "to audit the district’s business office"  in order to determine, among other things, any discrepancies in Groening's leave records  before the end of the following school year." 

Groening decided not to wait until the end of the following school year as she had planned and she resigned the day before the auditors sent their report to the board. In her resignation she stated that she had no choice but "to step aside" because of the board’s continued "intent to retaliate against her for her lawful use of leave" and a short time later filed this lawsuit, contending that board retaliated against her because she went on medial leave, which she alleged constituted a violation of FMLA.

FMLA provides that an eligible employee may claim up to twelve weeks of unpaid, job-protected leave per year in connection with, among other things, the employee's recovering from a serious health condition or to care for an immediate family member with a serious health condition. Further, the Act prohibits employers from retaliating against employees who take FMLA leave, or otherwise interfering with their right to do so. 

The federal district court,  finding that Groening could not show she had suffered an adverse employment action as the result of her taking FMLA leave, granted the school district's motion for summary judgment and dismissed Groening's petition. Groening appealed.

The Sixth Circuit Court of Appeals said that to establish a prima facie case that the school district violated  FMLA  Groening was required to show that the board knew she was engaged in FMLA-protected activity and subjected her to an adverse employment action because of it.  Here, said the court, Groening "concedes that the board did not fire, demote, or discipline her for taking leave" but rather she contends that she was constructively discharged. Noting that the Doctrine of Constructive Discharge "is hard to prove," the court explained that in order to prevail in an action alleging constructive discharge the employee must show that  his or her working conditions were objectively intolerable and that her employer deliberately created those conditions  in hopes that they would force her to quit. In contrast, the court observed that the Doctrine does not protect employees who leave their job “in apprehension that conditions may deteriorate later.”

To show that her working conditions were objectively intolerable, Groening claimed that the board [1] subjected her to months of hostility because it believed her absences "was holding up the school district’s business;" [2] "spearheaded an audit that was designed to find evidence of wrongdoing"  and [3] continued to complain that she was not doing her job and was “wasting [its] time” thereby giving her "no choice but to resign."

The court opined that these conditions, even viewed in the light most favorable to Groening, fell far short of showing constructive discharge, explaining that the Sixth Circuit has repeatedly held that an employer’s criticism of an employee does not amount to constructive discharge —"especially when the employer’s criticism is limited to a few isolated incidents, as it was here."

Further, said the Circuit Court, "employers are permitted to investigate their employees for wrongdoing, including wrongdoing related to protected leave." Indeed, notes the decision, "neither an internal investigation into suspected wrongdoing by an employee nor that employee’s placement on paid administrative leave pending the outcome of such an investigation constitutes an adverse employment action”

Concluding that Groening had failed to raise a genuine issue of material fact as to whether her working conditions were objectively intolerable and thus she could not show that she was constructively discharged, the Circuit Court sustained the district court's ruling granting the school board's motion for summary judgment on Groening's retaliation claim.

As to Groening contention that the board interfered with her right to take leave, to a survive a motion summary judgment on this claim Groening must show that (1) she was an eligible employee, (2) the board was a covered employer, (3) she was entitled to take leave, (4) she gave the board notice of her intent to take leave, and (5) the board denied her FMLA benefits or interfered with her FMLA rights. Groening, said the court, failed to establish a genuine issue of material fact with respect to the 5th element required to be demonstrated and sustained the lower court's granting summary judgment in the school district's favor on this branch of Groening's action as well.

Finally, the Circuit Court observed that Groening's remaining arguments "fare no better" and dismissed her appeal.

The decision is posted on the Internet at:

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0049p-06.pdf