Individual caring for an ailing family member is not a member of a protected class under New York State's Human Rights Law

In an action commenced pursuant to CPLR Article 78 and Executive Law §298, Plaintiff challenged the New York State Division of Human Rights' [SDHR] finding that there was no probable cause to believe that her employer [Employer] had engaged in any unlawful discriminatory practice against her. The Appellate Division affirmed the Supreme Court's decision denying Plaintiff's petition.

The Appellate Division explained that Plaintiff's challenging SDHR's determination of "no probable cause" with respect to her complaint based on her status as a caregiver for a member of her family failed as a matter of law as serving as a care giver for an ailing family member is not a protected activity under the State's Human Rights Law.

With respect to Plaintiff's allegation that her Employer discriminated against her based on its "perceiving" her to be disabled due to a mental illness or an addiction based on its making two inquiries concerning Plaintiff's behavior which Employer believed was unusual and, on one occasion, requiring her to undergo a drug test, the Appellate Division ruled that SDHR rationally concluded that those events alone did not establish that Plaintiff's Employer perceived her to be disabled due to an addiction or mental illness.

Significantly, the court noted that Plaintiff did not  allege that she suffered any adverse employment or personnel action resulting from those events or that she was subjected to "discriminatory intimidation, ridicule, and insult that [was] sufficiently severe or pervasive to alter the terms or conditions of employment."

Noting that "probable cause" for the purposes of New York State's Human Rights Law "exists only when, after giving full credence to the complainant's version of the events, there is some evidence of unlawful discrimination," the Appellate Division opined that there was no evidence before SDHR sufficient to support Plaintiff's contention that she had been subjected to acts of unlawful discrimination by her Employer.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_06282.htm

Claiming the protections of the Doctrine of Legislative Immunity in the course of litigation

The Doctrine of Legislative Immunity may be invoked by members of a legislative body being sued for alleged acts or omissions made in the course of their serving in their official capacity as a legislator.*

In this action certain members of a school board [Members] were subpoenaed to give depositions in the course of litigation initiated by the Plaintiffs in federal district court against the school district. The Members resisted, contending that they could not be forced to appear for such depositions because they were entitled to legislative immunity.

The United States District Court, Southern District of New York, affirming an order of the magistrate judge, rejected the Members' claim that they were entitled to legislative immunity that protects them against being called as witnesses at depositions regardless of whether they are parties in the action and directed the Members to appear for their depositions. The Members appealed the district court's ruling to the United States Court of Appeals, Second Circuit.

The Circuit Court rejected the arguments advanced by the Members that they entitled to legislative immunity explaining that "because the Board Members are not parties to this action and have not raised a colorable claim of official immunity," they are not within the ambit of the Doctrine.

Citing Mitchell v Forsyth, 472 U.S. 511, in which the Mitchell court described such “immunity from suit” as “entitlement not to stand trial or face the other burdens of litigation,” the Circuit Court said that the Members’ claim that their status as legislators shields them from serving as witnesses at depositions "sounds in evidentiary privilege,** and, as non-party witnesses seeking to challenge an order compelling them to appear for depositions, they have not presented a question of their entitlement to immunity."

Further, the Circuit Court opined that although the Members attempted to cloak  their claims under color of seeking the protection of legislative immunity, in fact the Members "in this case have sought to exercise an evidentiary privilege to avoid attending a deposition."

As the Members’ claims were founded on an evidentiary privilege, the Circuit Court concluded that it lacked jurisdiction over the appeal of the order compelling their attendance at the depositions as “[a]n order compelling testimony in an ordinary civil or criminal action is neither a final order ... nor an interlocutory order granting an injunction ... and it is not appealable.”

In contrast, the Circuit Court pointed out that to obtain such appellate review, the subpoenaed person ordinarily "must defy the district court’s enforcement order, be held in contempt, and then appeal the contempt order" which is regarded as a final order.

Indicating that this requirement applies whether the individual subpoenaed “is a party to the litigation or a non-party witness,” the Circuit Court granted the Plaintiffs' motion to dismiss the Members' appeal seeking to vacate the lower court's decision.

* The Doctrine of Legislative Immunity does not protect legislators from criminal prosecution, nor does it relieve them from responsibility for their actions unrelated to their office. See also https://publicpersonnellaw.blogspot.com/2018/02/sovereign-immunity-absolute-immunity_12.html addressing Sovereign Immunity, Absolute Immunity, Qualified Immunity, Use Immunity, Transaction Immunity and Qualified Privilege claims that may be advanced by public officers and employees involved in litigation and, or, administrative hearings.

** Privileged evidence refers to evidence that is exempt from production to an opposing party.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/378b60c7-cb2c-418e-890b-35a203574789/4/doc/18-3481_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/378b60c7-cb2c-418e-890b-35a203574789/4/hilite/

New York State Comptroller Thomas P. DiNapoli issues audits and examinations

New York State Comptroller Thomas Dinapoli issued the following audits and reports during the week ending September 6, 2019. Click on the text in color to access the complete audits and reports.

Department of Agriculture and Markets: Oversight of Weights and Measures Programs (Follow-Up) (2019-F-11)

An initial report, issued in December 2017, identified systemic issues with the quality of the data the department relies on to administer the state’s weights and measures program. In a follow-up, auditors found the department made significant progress addressing the problems identified in the initial audit. Of the four prior audit recommendations, two were implemented and two were partially implemented.

Department of Environmental Conservation (DEC): Oversight of Waste Tire Site Cleanup and Use of Waste Tire Fees (2018-S-43)

Auditors found DEC has made significant progress abating identified waste tire sites. Nearly 44 million tires (99 percent) were abated at 160 sites (86 percent) as of October 2018. Auditors also found about $5.1 million in expenses charged to the program that did not appear to be related to waste tire abatement or other waste management activities allowable under the law. 

Department of Environmental Conservation: Report of Title V Operating Permit Program Revenues, Expenditures, and Changes in Fund Balance for the Eight Fiscal Years Ended March 31, 2017 (2017-S-81)

Program revenues were insufficient to cover program expenses, as required by the federal Clean Air Act and New York’s Clean Air Compliance Act. Program revenues decreased 38.8 percent during the period, while program expenses decreased 10.8 percent, resulting in a trend of increasing annual deficits. 

Department of Health (DOH): Inappropriate Payments Related to Procedure Modifiers (Follow-Up) (2019-F-10)

An initial audit issued in April 2018 found that DOH incorrectly implemented claims processing system controls to prevent inappropriate payments for evaluation and management services, which resulted in Medicaid overpayments totaling about $2.6 million. In a follow-up, auditors found DOH made some progress in addressing the problems identified in the initial report, but no action has been taken to review and recover the inappropriate payments identified.

Department of Health (DOH): Medicaid Claims Processing Activity April 1, 2018 through Sept. 30, 2018 (2018-S-13)

Auditors identified over $134 million in Medicaid payments that require DOH’s prompt attention, including $123.9 million in Medicaid managed care premiums paid on behalf of 86,475 Medicaid recipients who had concurrent comprehensive third-party health insurance.

Metropolitan Transportation Authority (MTA): New York City Transit: Maintenance and Inspection of Event Recorder Units (2018-S-19) Auditors found train car inspections were not always done on time. They determined that, of the 822 timed inspections during the audit period, 70 were late, exceeding the permitted time or mileage interval. For 129 inspections, maintenance personnel did not provide evidence that they downloaded information from event recorder units to ensure that they were functioning correctly, as required by the MTA’s transit unit’s work manuals.

Office for People With Developmental Disabilities (OPWDD): Accountability and Surplussing of Vehicles (2018-S-42)

OPWDD lacks sufficient controls over fleet vehicle management at the four local Developmental Disabilties Services Offices (DDSOs) to ensure that all vehicles are properly accounted for, that vehicles are used for official state business only, and that DDSOs are properly surplussing vehicles following a process that is fair and complies with OGS requirements. Such deficiencies, which might largely be attributable to OPWDD’s lack of procedures and guidance, create an environment at risk of mismanagement and impropriety.

Rochester-Genesee Regional Transportation Authority (RGRTA): Compliance With Requirements to Maintain Systems at Vendor-Supported Levels (2019-S-6)

The authority must adhere to the State Information Security Policy which defines the minimum information security requirements that all state entities must follow to secure and protect the confidentiality, integrity, and availability of information. Auditors found that, generally, RGRTA maintained its systems at vendor-supported levels. However, they did identify unsupported systems used by RGRTA on 14 devices.

State Education Department (SED): Children’s Unit for Treatment and Evaluation: Compliance with the Reimbursable Cost Manual (2018-S-47)

For the three fiscal years ended June 30, 2016, auditors identified $232,606 in reported costs that did not comply with SED’s requirements for reimbursement. These costs included $232,464 in parent agency administrative costs and $142 in consultant travel expenses.

State Education Department (SED): Early Childhood Learning Center of Greene County: Compliance With the Reimbursable Cost Manual (2018-S-67)

For the fiscal year ended June 30, 2015, auditors identified $12,843 in reported non-personal service costs that did not comply with SED’s requirements for reimbursement.

The State Comptroller also provides the following information concerning how taxpayer money is spent at Open Book New York. Track municipal spending, the state's 160,000 contracts, billions in state payments and public authority data.

Visit the Reading Room for contract FOIL requests, bid protest decisions and commonly requested data.

Recent appointments to Governor Andrew M. Cuomo's administration

On September 4, 2019 the Governor announced these appointments to his administration:

Matthew Saal has been appointed Senior Advisor for Communications. Mr. Saal is a two-time Emmy Award-winning producer who has extensive experience producing television and digital programming. Previously, Mr. Saal worked for four years as Creator and Executive Producer at Bloomberg LP where he produced "The David Rubenstein Show: Peer to Peer Conversations," which featured behind the headlines interviews with top newsmakers including Warren Buffett and Bill Gates. Prior to that, he served for seven years as Creator and Executive Producer at MSNBC where he created and executive produced primetime live television shows including "The Rachel Maddow Show," "Politics Nation" and "Verdict with Dan Abrams." He has also served as Senior Broadcast Producer at NBC News on "Weekend Nightly News with Lester Holt." Mr. Saal earned a B.A. from Harvard College.

Colleen Curtis has been appointed Senior Director of Digital Strategy and Social Media. Ms. Curtis brings a wealth of media, communications and marketing experience in the media, government and entertainment industries. More recently, she served as Senior Vice President for Consumer, Social and Digital Publicity at Starz Entertainment and the Director of Digital Content at the Executive Office of the President under President Obama where she managed oversight and content for multiple online platforms. Ms. Curtis previously served as Editorial Director of Womens & Lifestyle Programming at AOL, where she launched 15 websites that reached more than 20 million Americans each month. In addition, Curtis has held numerous leadership roles in media in the United States and overseas, including senior editorial positions at ABC's Good Morning America, the New York Daily News, and the National Post. Ms. Curtis studied journalism at Boston University's College of Communications and Columbia University's Graduate School of Journalism.

Jeremy M. Goldberg has been appointed Deputy Secretary for Technology and Innovation for the State of New York. With over 15 years experience working across sectors, Jeremy has served in a technology leadership, strategy, and partnerships role in three mayoral offices: New York, San Francisco, and San Jose. Most recently, Jeremy served as Deputy CTO and Managing Director of NYCx in the New York City Mayor's Office of the Chief Technology Officer (MOCTO). He led the successful creation of an award-winning portfolio of initiatives that focuses on bold ideas and breakthroughs in the way we interact with and influence emerging technologies for the public good. During his time in San Francisco, he served as Director of Civic Innovation Partnerships in the Mayor's Office of Civic Innovation, where he led the growth of Startup-in-Residence, a 16-week program that connects government departments with startups to address critical needs via innovative products and services, and Civic Bridge, public private partnership program that enlists pro-bono private sector volunteers to work on critical city issues alongside city staff. Prior to that, he served as Deputy Chief of Staff for Civic Innovation in San Jose, California. A Fuse Corps Alumnus, Aspen Ideas Festival Scholar, and University of Texas Archer Fellow Alumnus, Jeremy earned a B.A. in Government from the University of Texas at Austin and an M.A. in Public Affairs from the University of San Francisco. He and his family live in Brooklyn, NY.

 
Edgar Santana has been appointed Director of Downstate Regional Affairs. Mr. Santana previously served as Director of Political and Governmental Affairs for the Laborers Eastern Region Organizing Fund. He previously worked as the Construction Marketing Representative for the Eastern Region Laborers-Employers Cooperation and Education Trust. Earlier in his career, Mr. Santana was the Deputy Executive Director for the New York State Democratic Committee and the Northeast Political Director for Hillary Clinton for President. Mr. Santana also formerly served as a Trustee for the Yonkers Board of Education and is Co-Chair of the Westchester County Census 2020 Complete Count Committee. He received a Bachelor's degree in Business Administration, an MBA from Fordham University, and a Master of Science Management Degree in Public Administration from Wilmington University, Wilson Graduate Center.

Brandon Hicks has been appointed Director of African American Affairs. Mr. Hicks brings nearly a decade of organizing and management experience for national civil rights and community organizations. Most recently, he served as the National Organizer for the National Action Network where he developed a national campaign to advance special prosecutor legislation and organized diverse campaigns surrounding police brutality, marijuana legalization and criminal justice reform. Mr. Hicks holds a Bachelor's degree in Political Science from North Carolina Central University and his Juris Doctor from Washington and Lee University School of Law.

 
Maria LoGiudice has been appointed Assistant Deputy Secretary for Public Safety. Ms. LoGiudice brings 20 years of experience in New York State government focusing on public safety and financial analysis. She previously served as the Managing Director of Budget and Fiscal Studies for the New York State Senate Finance Committee focusing on financial analysis surrounding public protection, including corrections, criminal justice services, homeland security and emergency services, State Police, victim services and local government issues. Ms. LoGiudice received a Bachelor's degree of Science and a Master's degree of Science in Criminal Justice Administration from Niagara University.

Molly Reilly has been appointed Assistant Secretary for Upstate Intergovernmental Affairs. Ms. Reilly most recently served as the Mayor of Sackets Harbor for two years. She also served as a professional educator, during which time Governor Cuomo selected her as an Empire State Excellence in Teaching Awardee. She received her Bachelor's degree in Political Science from Le Moyne College and a Master's degree in Political Science with a Concentration in Political Theory from the Nelson A. Rockefeller College of Public Affairs And Policy at SUNY Albany.