Recent postings on Kevin Sheerin's Law Blog "New York Civil Service Attorney"

Denial of Correction Officer’s Performance of Duty Retirement Benefits Annulled Due to Factual Errors - Matter of Paul Mazzotte v Thomas DiNapoli, as State Comptroller Petitioner was a correction officer for over 20 years. In 2001, he applied for performance of duty disability retirement benefits alleging he was permanently disabled by coronary artery disease (CAD) after having coronary artery bypass surgery. According to petitioner, the disease was caused by the...click to  Continue Reading…

Correction Officer Receives 60 Days Suspension for Excessive Use of Force -
In the Matter of Department of Correction v Stanley Saint-Phard… In this disciplinary proceeding, pursuant to Article 75 of the Civil Service Law, Respondent, a Correction Officer, allegedly used impermissible force against an inmate by dispersing a chemical agent in the inmate’s face and also placed the inmate in a chokehold. On October 16, 2008,...click to Continue Reading…

NYPD Disqualification for Loud Exhaust or Tinted Windows-
Sometimes younger people (often men), accumulate summonses or moving violations for “loud exhaust” or “tinted windows”. These violations accumulate over time and may grow to 5, 10, 15 or even 20 summonses. As the years pass these young people look to get a job with the NYPD or another law enforcement agency. After the application...click to Continue Reading…

Off-Duty NYPD Detectives Use of Force found Not Actionable
"Use of force", NYPD, deadly force, Firearms dischargeclick to Continue Reading…

Disqualification for High Blood Pressure Overturned -
A Nassau County Police Officer candidate failed to meet the Municipal Police Training Council standard for blood pressure and was disqualified in August 2013.  The candidate suffered from “White Coats Syndrome” which is an elevated blood pressure in a clinical setting.  The candidate had no history of hypertension with his primary physician.  TheNassauCounty...click to Continue Reading…

 

Recent General Information Bulletins published by the New York State Department of Civil Service

New York State Department of Civil Service recently published the following General Information Bulletins:

GIB 21-01, Enactment of the Restoration of Honor Act

GIB 21-02, Revision to the Statewide Employment Application

GIB 21-03, Reasonable Accommodation Appeals Review Committee

 

For those wishing to print these General Information Bulletins, below are links to versions in PDF format:

https://www.cs.ny.gov/ssd/pdf/GIB21-01.pdf

https://www.cs.ny.gov/ssd/pdf/GIB21-02.pdf

https://www.cs.ny.gov/ssd/pdf/GIB21-03.pdf

 

To view previous General Information Bulletins issued by the Department of Civil Service, visit: https://www.cs.ny.gov/ssd/gibs.cfm.

Staffing announcements by the New York State Workers' Compensation Board

On April 2, 2021, the New York State Workers' Compensation Board announced the following staffing changes:

Former General Counsel David Wertheim has been named Acting Executive Director of the NYS Workers’ Compensation Board, following the departure of Mary Beth Woods, who was appointed Acting Executive Director and CEO of the NYS Insurance Fund.

Former Deputy General Counsel Heather MacMaster has been named Acting General Counsel in the transition that became effective on March 23.

Mr. Wertheim and Ms. MacMaster have both served the Board for more than two decades and look forward to continuing the work already underway to create a system that’s better for workers and better for business.

 

New York State Comptroller finds eight villages and three cities in fiscal stress for the fiscal year ending in 2020

Noting that federal and state financial support is crucial for local governments, Comptroller DiNapoli’s office evaluated the fiscal health of 523 villages, which predominantly have a fiscal year ending on May 31, based on self-reported data. The scores also cover the 17 cities in New York with non-calendar fiscal years, including the “Big 4” cities of Buffalo, Rochester, Syracuse and Yonkers, each of which have fiscal years ending on June 30.*

State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System has identified eight villages and three cities in New York that were in some level of fiscal stress in 2020, based on scores that largely reflect the time period before the COVID-19 pandemic. DiNapoli evaluated all non-calendar year local governments and designated three cities and three villages in “significant fiscal stress,” one village in “moderate fiscal stress” and four villages as “susceptible to fiscal stress.”

The latest round of fiscal scores evaluated local governments with fiscal years ending between Feb. 28 and July 31. DiNapoli’s office evaluated the fiscal health of 523 villages, which predominantly have a fiscal year ending on May 31, based on self-reported data. The scores also cover the 17 cities in New York with non-calendar fiscal years, including the “Big 4” cities of Buffalo, Rochester, Syracuse and Yonkers, each of which have fiscal years ending on June 30.

For the fiscal years ending 2020, the three cities in “significant fiscal stress” include Amsterdam (Montgomery County), Long Beach (Nassau County) and Yonkers (Westchester County).

The three villages in “significant fiscal stress” are Island Park (Nassau), Valley Stream (Nassau) and Wappingers Falls (Dutchess).

The village of Fayetteville (Onondaga) is designated as being in “moderate fiscal stress” and the villages of Addison (Steuben); Millbrook (Dutchess); Oriskany (Oneida); and South Dayton (Cattaraugus) are designated as being “susceptible to fiscal stress.".

The system, which has been in place since 2012, assesses levels of fiscal stress in local governments using financial indicators including year-end fund balance, cash position, short-term cash-flow borrowing and patterns of operating deficits. It generates overall fiscal stress scores, which ultimately drive final classifications. The system also analyzes separate environmental indicators to help provide insight into the health of local economies and other challenges that might affect a local government’s or school district’s finances. This information includes population trends, poverty and unemployment.

Click on text in color to access the material described.

DiNapoli’s office has a self-assessment toolthat allows local officials to calculate fiscal stress scores based on current and future financial assumptions. Officials can use this tool to assist in budget planning, which will continue to be especially important in light of the ongoing pandemic and the related revenue and expenditure fluctuations.

In January, DiNapoli released fiscal stress scores for school districts which found 31 school districts statewide were designated in fiscal stress. In September, DiNapoli’s office will release scores for municipalities with a calendar-year fiscal year, which includes all counties, towns, the majority of cities and a few villages.

List of villages and cities in fiscal stress - Municipalities in Stress Fiscal Year Ending 2020

Complete list of fiscal stress scores - Lists

FSMS Search Tool - Fiscal Stress Monitoring System Search Tool

COVID-19 Toolkit - COVID-19 Financial Toolkit for New Yorkers

* The latest round of fiscal scores evaluated local governments with fiscal years ending between Feb. 28 and July 31.

 

Endpoint Security: Are Your Printers Easy Prey? -- A Government Technology Webinar

If you missed this Government Technology Webinar entitled "Endpoint Security: Are Your Printers Easy Prey? and would like to view the recorded session click HEREto access the presentation.

For questions, or more information, contact Erica Lindley at Government Technology,
800-940-6039, Ext. 1375.

 

Judicial review of an administrative body's findings after a hearing of alleged violations of SUNY's Student Code of Conduct

SUNY Campus Appeals Board's finding that a student violated the Student Code of Conduct by engaging in certain sexual activities vacated by Appellate Division as not supported by substantial evidence and all references to the Board's findings were ordered to be expunged from the student's academic record. 

Click HERE to access the Appellate Division's decision.

 

Requiring fluency in a particular language other than English for appointment to a position in the public service

In this CPLR Article 78 action the petitioner [Plaintiff] challenged the New York State Department of Civil Service created a new position in the State Department of Corrections and Community Services* [DOCCS] Correction Sergeant (Spanish Language) at DOCCS' request. The duties of this title were identical in all aspects to those required in the established position of Correction Sergeant, with the additional requirement that applicants for the new position be fluent in Spanish.

Ultimately two separate promotion eligibility lists were established, one for Correction Sergeant and the other for Correction Sergeant (Spanish Language).

Plaintiffs in the action allege that the creation of this new position was arbitrary, capricious and unlawful, that it violated their state and federal constitutional equal protection and due process rights and that DOCCS violated Article V, §6, the Merit and Fitness Clause, of the New York State's Constitution. Additionally, petitioners sought certification to proceed as a class action. DOCCS moved to dismiss the action, asserting objections in point of law. Supreme Court dismissed Plaintiffs' petition and Plaintiffs appealed.

The Appellate Division, citing Cove v Sise, 71 NY2d 910, observed "Administrative determinations concerning position classifications are of course subject to only limited judicial review, and will not be disturbed in the absence of a showing that they are wholly arbitrary or without any rational basis" and rejected Plaintiffs' argument that DOCCS failed to present evidence of the need for this new position classification.

As to Plaintiff's contention that the establishment of positions of Correction Sergeant (Spanish Language) violated Article V, §6 of Constitution, the court noted that two eligible lists were established, one for Correction Sergeant and a separate list Correction Sergeant (Spanish Language). The court observed that it might be troublesome were there but one list of eligibles established for appointment to the Correction Sergeant and to the Correction Sergeant (Spanish Language) titles, here there were two eligible lists established and both lists the lists remain separate and distinct.

Addressing Plaintiffs' argument that their due process rights under the United States and New York State Constitutions as their property interests in promotion were adversely  affected as the result of the establishment of the two titles by the Department of Civil Service at DOCCS' request, the Appellate Division, citing Matter of Andriola v Ortiz, 82 NY2d 320, explained "a person successfully passing a competitive [c]ivil [s]ervice examination does not acquire any legally protectable interest in an appointment to the position for which the examination was given, nor thereby gain a vested right to appointment to the position" and thus Plaintiffs' "contention is meritless."

Petitioners also advance the argument that "respondents violated their equal protection rights by conferring greater benefits on less qualified candidates who are proficient in speaking Spanish." Noting that for equal protection purposes, the appropriate standard for judicial review of a regulation is that it be sustained unless it bears no rational relation to a legitimate government interest, the Appellate Division said that the basis of the classification was proficiency in speaking Spanish, "which was required to effectively communicate with the Spanish-speaking inmate population and aid in the efficient and safe operations of DOCCS's facilities." Agreeing with the Supreme Court that the "differential treatment of Spanish-speaking and non-Spanish speaking employees was rationally related to a legitimate government interest," the Appellate Division held that the respondents "did not violate [the Plaintiffs'] equal protection rights under the NY or US Constitution."

*Although this is how DOCCS was named in the petition, the Appellate Division noted that DOCCS's correct name is Department of Corrections and Community Supervision.

Click HERE to access the text of the Appellate Division's decision.