New York Public Personnel Law

October 21, 2022

Denial of an application for disability retirement benefits must be supported by substantial evidence

In Matter of Kelly v DiNapoli, 30 NY3d 674, the Court of Appeals held that "For the purpose of Retirement and Social Security Law, the applicant bears the burden of establishing that the disability was the result of an accident, which is defined as "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact". This standard requires an applicant for accidental disability retirement benefits to "demonstrate that [the] injuries were caused by a precipitating event that was sudden, unexpected and not a risk inherent in [the individual's] ordinary job duties"

Petitioner in this Article 78 action, an administrative law judge [ALJ] for the Department of Corrections and Community Supervision, sustained injuries when she was leaving a hearing room and was hit on her left leg by a very heavy, self-closing, security door.

Following a hearing on the ALJ's application for accidental disability retirement benefits, the Hearing Officer denied the application, finding that the ALJ did not meet her burden of establishing that the incident constituted an accident within the meaning of Retirement and Social Security Law § 605. The Comptroller sustained the hearing officer's findings and decision and the ALJ appealed.

The Appellate Division disagreed. In its view, the incident as described by the ALJ constituted an accident. The court said that "Although [the ALJ] was aware of the hazard posed by the heavy, self-closing door, she reasonably expected that the supervisor, who was holding the door open, would continue to do so as [the ALJ] walked through."

Thus, said the Appellate Division, the ALJ demonstrated that her injuries were caused by a "sudden [and] unexpected" precipitating event — the supervisor letting go of the heavy, self-closing door while the ALJ walked through it — which was not a risk inherent in her job duties.

The court distinguished the facts in this case from a situation in which it determined that strong wind blowing shut a heavy, self-closing door and injuring the applicant for accidental disability retirement benefits did not constitute an accident, citing Matter of Rizzo v DiNapoli, 201 AD3d at 1100.* The Appellate Division opined that "a distinction must be drawn between a naturally occurring event such as wind" and the instant case in which the ALJ had a reasonable expectation that the supervisor would not release the door until she was safely through.

Accordingly, the Appellate Division concluded that the Comptroller's determination is not supported by substantial evidence.

Click HEREto access the text of the Appellate Division's decision.

* Matter of Rizzo v DiNapoli, 2022 NY Slip Op 06027, posted on the Internet at https://www.nycourts.gov/reporter/3dseries/2022/2022_06027.htm, in which the Court of Appeals held "Substantial evidence supports the determination that the precipitating cause of petitioner's injuries was not an accident."

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October 20, 2022

Challenging the results of a union election of its officers

Citing Palladino v CNY Centro, Inc., 23 NY3d 140, the Appellate Division noted that "the law is well settled" that suits for breaches of agreements or for tortious wrongs against officers of unincorporated associations, including unions, are limited to situations in which "the individual liability of every single member can be alleged and proven".

The court then sustained Supreme Court's granting Local 461, District Council 37's motion to dismiss the Plaintiffs' amended petition seeking to annul a 2021 election of the Local's officers and that the court direct that new elections be conducted.

The Appellate Division explained that the Plaintiffs' petition, which interposed claims alleging breach of contract and violation of the common law of elections in New York, failed to plead "that each individual union member authorized or ratified the [allegedly] unlawful actions," citing Charter Communications, Inc. v Local Union No. 3, 166 AD3d 468.

Click HEREto access the Appellate Division's ruling.

October 19, 2022

Failure to allege any adverse employment action fatal to unlawful age discrimination complaint

Citing Forrest v Jewish Guild for the Blind, 3 NY3d 295, the Appellate Division held that Supreme Court properly dismissed Plaintiff's age discrimination claim brought pursuant to the New York State Human Rights Law [Executive Law §296] because Plaintiff "failed to allege an adverse employment action." The court noted that investigations into various alleged acts of misconduct by Plaintiff and Plaintiff's reassignments to other work locations "did not rise to the level of actionable adverse employment actions."

Further, the Appellate Division opined that nothing in Plaintiff's complaint indicated that his suspension and placement on modified duty were for any reason other than disciplinary actions taken after his arrest for domestic violence.

With respect to Plaintiff's discrimination claim under the New York City Human Rights Law [Administrative Code of City of NY §8-107], the court held that the conduct of which Plaintiff complained amounted to no more than "petty slights and trivial inconveniences" and an alleged stray remark by an employee of the Employer that Plaintiff was "old enough to retire" did not, without more, give rise to an inference of bias because of Plaintiff's age.

Finally, as Plaintiff failed to allege discriminatory animus, the Appellate Division concluded that his hostile work environment claims were properly dismissed by Supreme Court, as was his claim of retaliation, as his general complaints of mistreatment and harassment did not convey that Plaintiff had complained of unlawful discrimination.

Click HEREto access the text of the Appellate Division's decision.

October 18, 2022

Government Technology Webinars for the week of October 17, 2022

New! Lightning Webinar! Tuesday, October 18, 2022 | 12:00pm Eastern

The Lightning Round: What is Zero Trust?

In The Lightning Round, a new webinar series from Government Technology [WT], WT is explaining emerging concepts and demystifying gov tech one buzzword at a time. If you’ve got 15 minutes, WT will get you up to speed on a key concept in public sector IT. This time, WT is taking on Zero-Trust security – what it is, where it’s headed and what it means for your organization.

Tuesday, October 18, 2022 | 1:00pm Eastern

Managing Cyber Risks: Exploring Cybersecurity as a Managed Service

More and more governments are turning to a managed services model for cybersecurity. But in what cases does cybersecurity-as-a-service make sense? When is it a bad idea? Who’s liable when a breach occurs? What questions should you ask before partnering with a cybersecurity service provider? Join WTfor a valuable webcast tackling these questions and many more.

Tuesday, October 18, 2022 | 2:00pm Eastern

Frictionless Airport Experiences with Virtual Queue Technology

One of the most frustrating aspects of air travel is getting stuck in a long, snaking security line. With virtual queuing software, however, passengers can reserve a spot in line ahead of time and then breeze through when it’s their turn. Cities across the U.S. (and the world) are beginning to implement smart queuing technology at airports to improve the passenger experience and make air travel easier, safer, smoother – and a lot less frustrating. Join WT for a 30-minute webinar on virtual queuing – and how cities are putting it to use.

Wednesday, October 19, 2022 | 1:00pm Eastern

Centering Constituent Concerns with an Environmental, Social and Governance Framework

When people think about improving their communities and addressing the major issues that impact daily life, they look to governments – not corporations or individuals – as the institutions responsible for meeting that mission. Cementing an Environmental, Social, and Governance (ESG) framework into government processes can help agencies standardize the tracking of sustainability metrics and deliver services that exceed public expectations. Join WT for part one of a two-part discussion on how an ESG framework can help organizations build positive and long-lasting relationships with constituents.

Wednesday, October 19, 2022 | 1:00pm Eastern

Centering Constituent Concerns with an Environmental, Social and Governance Framework

Friday, October 21, 2022 | 2:00pm Eastern

Accelerating Improvements in the Constituent Experience with APIs

Seamless user experiences are important to constituents. An Application Programming Interface (API) can help governments bring any service or transaction online in one easy-to-use interface, improving user experiences. Learn how agencies can use APIs to deliver a payment solution for every constituent during WT's webinar.

Sneak Peek at Next Week’s Webinars:

Halloween Special: Register and attend any of these webinars next week to be entered for a chance to win one of five $50 Amazon gift cards!

The Power of Procurement: Smarter Strategies for Controlling Your Spend

Think Like a Hacker: Defend Your Organization Against Ransomware-as-a-Service Attacks

Improving Equity in Public Infrastructure

What is an ESG Framework and How Does It Apply to Governments?

Modernizing Your Network in the Age of Zero Trust

To view upcoming and on-demand webinars, visit webinars.govtech.com.

For assistance with registration, contact:
Jeremy Smith, jsmith@erepublic.com (916) 932-1402 direct

October 17, 2022

State, Municipal and School District Audits and Reports issued by the New York State Comptroller during the month of September, 2022

New York State Comptroller Thomas P. DiNapoli issued audits and reports of the State Departments and Agencies, the City of New York, Municipalities, BOCES and School Districts listed below during the month ending September 30, 2022:

Click on the text highlighted in color to access the complete audit report.

State Departments and Agencies and the City of New York

Subject: Accuracy of Medicaid Eligibility Determined by NY State of Health (Follow-Up)
Agency: Health, Department of (Medicaid Program)
Issued: 09/30/22

Subject: Oversight of Afterschool and Summer Youth Employment Contracts (Follow-Up)
Agency: Youth & Community Development, New York City Department of
Issued: 09/30/22

Subject: Empire Plan Members With Dual Family Coverage (Follow-Up)
Agency: Civil Service, Department of
Issued: 09/26/22

Subject: Employee Qualifications, Hiring, and Promotions (Follow-Up)
Agency: Metropolitan Transportation Authority
Issued: 09/26/22

Subject: Housing Trust Fund Corporation: Internal Controls Over and Maximization of Federal Funding for Community Development Block Grant & HOME Investment Partnerships Programs
Agency: Homes and Community Renewal
Issued: 09/16/22

Subject: New York City Department of Homeless Services – Oversight of Contract Expenditures of Institute for Community Living, Inc.
Agency: Social Services, New York City Department of
Issued: 09/16/22

Subject: Selected State Agencies’ Roles in Financial Literacy
Agency: Aging, Office for the
Issued: 09/14/22

Cost Saving Opportunities on Payments of Medicare Part C Claims (Follow-Up)
Agency: Health, Department of (Medicaid Program)
Issued: 09/08/22

Subject: Improper Medicaid Payments for Terminated Drugs (Follow-Up)
Agency: Health, Department of (Medicaid Program)
Issued: 09/08/22

Subject: Improper Medicaid Payments Involving Fee-for-Service Claims for Recipients With Multiple Client Identification Numbers (Follow-Up)
Agency: Health, Department of (Medicaid Program)
Issued: 09/08/22

Subject: Oversight of Construction Management Contracts (Follow-Up)
Agency: Parks, Recreation and Historic Preservation, Office of
Issued: 09/08/22

Subject: Oversight of the Farm-to-School Program (Follow-Up)
Agency: Agriculture and Markets, Department of
Issued: 09/08/22

Subject: Oversight of Building Construction Site Safety
Agency: Buildings, New York City Department of
Issued: 09/01/22

Municipal and School District Audits

Audit No:2022M-89, Release Date: 09/30/2022

Jurisdiction: Irvington Union Free School District - Fixed Assets (School)

Summary: District officials did not properly monitor and account for 63 percent of the 105 fixed assets reviewed that cost $595,118. This can be attributed to District officials last conducting a physical inventory in 2018.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/school-district/2022/09/30/irvington-union-free-school-district-fixed-assets-2022m-89

Audit No:2022M-110, Release Date: 09/30/2022

Jurisdiction: Le Roy Central School District - Reserve Funds (School)

Summary: Although the Board and District officials properly established reserve funds that have balances totaling $3 million, they did not comply with the District's reserve policy or transparently fund reserves. In addition, the Board did not take an active role in managing and overseeing reserve fund activity and did not transparently use or maintain all reserves at reasonable levels.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/school-district/2022/09/30/le-roy-central-school-district-reserve-funds-2022m-110

Audit No:2022M-109, Release Date: 09/30/2022

Jurisdiction: Norfolk Fire District - Board Oversight (Fire)

Summary: The Board did not audit and approve all claims prior to payment, annually audit the Treasurer's records and ensure the Treasurer filed annual financial reports timely.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/fire-district/2022/09/30/norfolk-fire-district-board-oversight-2022m-109

Audit No:2022M-100, Release Date: 09/30/2022

Jurisdiction: Sharon Springs Central School District - Fund Balance (School)

Summary: The Board and District officials did not effectively manage fund balance and need to improve their budgeting practices and be more transparent with District residents and taxpayers.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/school-district/2022/09/30/sharon-springs-central-school-district-fund-balance-management-2022m-100

Audit No:2022M-42, Release Date: 09/30/2022

Jurisdiction: Town of Owego - Shared Services Facility Capital Project (Town)

Summary: The Board did not properly plan, authorize or monitor the Shared Services Facility Capital Project (Project).

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/town/2022/09/30/town-owego-shared-services-facility-capital-project-2022m-42

Audit No:2022M-115, Release Date: 09/23/2022

Jurisdiction: Fly Creek Fire District - Non-Payroll Disbursements (Fire)

Summary: While the District's non-payroll disbursements were supported, for proper District purposes and audited prior to payment, the Board of Fire Commissioners (Board) did not ensure purchases were made at the best price.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/fire-district/2022/09/23/fly-creek-fire-district-non-payroll-disbursements-2022m-115

Audit No:2022M-97, Release Date: 09/23/2022

Jurisdiction: Jamestown City School District - Fund Balance and Reserves (School)

Summary: The Board and District officials did not properly manage fund balance and reserves and need to improve their budgeting practices and transparency with District residents and taxpayers.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/school-district/2022/09/23/jamestown-city-school-school-district-fund-balance-and-reserves-2022m-97

Audit No:2022M-63, Release Date: 09/23/2022

Jurisdiction: Town of Hempstead - Procurement (Town)

Summary: Officials did not always seek competition for professional services and ensure bid specifications were met.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/town/2022/09/23/town-hempstead-procurement-2022m-63

Audit No:2022M-90 Release Date: 09/16/2022

Jurisdiction: Cheektowaga Central School District - Capital Project Management (School)

Summary: The Board and District officials did not manage the Project in a transparent manner and did not provide adequate oversight.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/school-district/2022/09/16/cheektowaga-central-school-district-capital-project-management-2022m-90

Audit No:2022M-87, Release Date: 09/09/2022

Jurisdiction: Binghamton Housing Authority - Oversight of Financial Operations (PA)

Summary: The Board and Director did not provide adequate oversight of financial operations. The Board did not adopt written policies and the Director did not develop proper internal controls over cash disbursements and electronic payments or financial system user access.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/public-authority/2022/09/09/binghamton-housing-authority-oversight-financial-operations-2022m-87

Audit No:2022M-73, Release Date: 09/09/2022

Jurisdiction: Liberty Central School District - Information Technology (School)

Summary: The Board and District officials did not adequately safeguard computerized data from unauthorized use, access and loss. In addition to sensitive IT control weaknesses that were communicated confidentially to officials.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/school-district/2022/09/09/liberty-central-school-district-information-technology-2022m-73

Audit No:2022M-71, Release Date: 09/09/2022

Jurisdiction: Lyons Central School District - Payroll (School)

Summary: District officials did not ensure employees' salaries and wages were always paid accurately.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/school-district/2022/09/09/lyons-central-school-district-payroll-2022m-71

Audit No:2022M-77, Release Date: 09/09/2022

Jurisdiction: Nassau Board of Cooperative Educational Services (BOCES) - Network User Account Controls (School)

Summary: BOCES officials did not establish adequate controls over network user accounts. As a result, BOCES has an increased risk of unauthorized access to and use of the BOCES network and potential loss of important data. In addition to sensitive information technology (IT) control weaknesses that were confidentially communicated to officials.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/boces/2022/09/09/nassau-board-cooperative-educational-services-network-user-accounts-2022m-77

Audit No:2021M-93, Release Date: 09/02/2022

Jurisdiction: Copiague Fire District - Mechanic Shop Operations (Fire)

Summary: The Board and District officials did not adequately monitor the Shop's financial condition or safeguard District assets, resulting in a 36-month operational deficit totaling $676,389. As a result, District taxpayers are paying for the majority of the costs for providing services that do not benefit them.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/fire-district/2022/09/02/copiague-fire-district-mechanic-shop-operations-2022m-93

Audit No:2022M-68, Release Date: 09/02/2022

Jurisdiction: East Bloomfield Central School District - Network and Financial Software Access Controls (School)

Summary: District officials did not ensure that network and financial software access controls were adequate to protect District IT systems and data from unauthorized access or loss. Sensitive network and financial software access control weaknesses were communicated confidentially to officials.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/school-district/2022/09/02/east-bloomfield-central-school-district-network-and-financial-software

Audit No:2022M-25, Release Date: 09/02/2022

Jurisdiction: Town of Hempstead - Vehicles and Fuel Usage (Town)

Summary: Town officials did not adequately monitor Town vehicles and fuel usage. As a result, Town officials did not know if Town vehicles and fuel were only used for Town business.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/town/2022/09/02/town-hempstead-vehicles-and-fuel-usage-2022m-25

Audit No:2022M-82, Release Date: 09/02/2022

Jurisdiction: Town of Saratoga - Budgeting and Fund Balance Management (Town)

Summary: The Board did not adopt realistic budgets or effectively manage fund balance.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/town/2022/09/02/town-saratoga-budgeting-and-fund-balance-management-2022m-82

Audit No:2022M-67, Release Date: 09/02/2022

Jurisdiction: Union Springs Central School District - Safeguarding of Personal, Private and Sensitive Information on Mobile Computing Devices (School)

Summary: District officials did not adequately safeguard MCDs to help prevent unauthorized access to PPSI. In addition to sensitive information technology (IT) control weaknesses that were communicated confidentially to officials.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/school-district/2022/09/02/union-springs-central-school-district-safeguarding-personal-private-and

Audit No:2022M-75, Release Date: 09/02/2022

Jurisdiction: Worcester Central School District - Fund Balance Management (School)

Summary: The Board and District officials did not effectively manage the District's fund balance.

Click here to access the full report: https://www.osc.state.ny.us/local-government/audits/school-district/2022/09/02/worcester-central-school-district-fund-balance-management-2022m-75

New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.