Civil Rights Law §50-a as amended by Chapter 96, Laws of 2020 held to apply to law enforcement officer personnel records retroactively

As is relevant here, former Civil Rights Law §50-a provided, with limited exceptions, that "[a]ll personnel records [of law enforcement officers] used to evaluate performance toward continued employment or promotion ... shall be considered confidential and not subject to inspection or review" (see Matter of New York Civ. Liberties Union v New York City Police Dept., 32 NY3d 556).

The legislature repealed Civil Rights Law §50-a [see Chapter 96, Laws of 2020] and made several related amendments to the State's Freedom of Information Law [FOIL], providing that such changes "shall take effect immediately".

In the words of the Appellate Division, "repeal of Civil Rights Law §50-a ... reflected a strong legislative policy promoting transparency of police disciplinary records and eliminated any claim of confidentiality in them" (see People v Castellanos, 72 Misc 3d 371)).

The Appellate Division then held that "the repeal of Civil Rights Law §50-a applies retroactively to records created prior to June 12, 2020", citing Schenectady Police Benevolent Assn. v City of Schenectady, 2020 WL 7978093; 2020 NY Slip Op 34346[U].

In the words of the Appellate Division, while "the legislature made no express statement in the repeal itself, or in the limited legislative history concerning the same, as to whether the repeal was to be applied retroactively [the amendments] "went into effect immediately and, by its plain reading and intent, applies to records then existing and not simply to records created at a time subsequent to the enactment of the legislation."

Citing Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, the court said "While the characterization of a statute as remedial is not dispositive, as a general matter, "remedial legislation should be given retroactive effect in order to effectuate its beneficial purpose".

Click HERE to access the decision of the Appellate Division posted on the Internet.

 

Regulating the risks of artificial intelligence

CNN reports the White House rolled out a sweeping executive order on October 30, 2032 "that aims to monitor and regulate the risks of artificial intelligence while also harnessing its potential."

Click HERE to access the CNN article posted on the Internet.

Attendance and Leave Policy Bulletins posted on Internet on October 30, 2023 by the New York State Department of Civil Service

The New York State Department of Civil Service has published the following Attendance and Leave Policy Bulletins:

• Policy Bulletin 2023-04, Rights of Employees to Express Breast Milk in the Workplace
• Policy Bulletin 2023-05, Implementation of the Productivity Enhancement Program for 2024

If you wish to print these bulletins a version in PDF format is posted at:

https://www.cs.ny.gov/attendance_leave/PB2023-04.pdf

https://www.cs.ny.gov/attendance_leave/PEP2024Combined.pdf

To view previous Attendance and Leave bulletins issued by the Department of Civil Service, visit: https://www.cs.ny.gov/attendance_leave/index.cfm

OATH Administrative Law Judge recommended the appointing authority terminate an employee found guilty of assaulting a co-worker

New York City Office of Administrative Trials and Hearings Administrative Law Judge [ALJ] Julia H. Lee recommended the termination of the employment of an administrative manager [Respondent] the ALJ found guilty of disciplinary charges that alleged Respondent had assaulted a co-worker [Co-worker] by striking him on the head with a metal pipe.

Co-worker did not testify at the trial* but the Appointing Authority [Employer] presented the testimony of six employees who "heard a commotion and arrived on scene" and witnessed the interaction between Respondent and Co-worker.

The failure of Co-worker to testify triggered the Respondent's asking the ALJ to apply the sanction of "adverse inference"** based on Employer’s failure to call Co-worker as a witness. 

Judge Lee opined that "An adverse/negative inference based on a missing witness may be appropriate where the moving party has laid a foundation that the witness has knowledge about a material issue, that he would naturally be expected to give testimony favorable to the party who failed to call him, and that the witness is available to that party," citing Comm’n on Human Rights ex rel. Brehshiek Marquez v. Fresh & Co., OATH Index No. 434/22 at 24-25.

Considering the particular facts of this case and the ALJ's credibility determinations with respect to the testimony of the Respondent and the testimony of the Employer’s witnesses, Judge Lee:

[1] Declined to draw an adverse inference as the result of Co-worker’s refusal to testify at the disciplinary hearing or the Employer’s failure to call Co-worker as a witness, noting "The factfinder’s drawing of an adverse inference is permissive, not required", citing People v. Gonzalez, 68 N.Y.2d at 431, and LLC v. Ward, 276 A.D.2d 277, 278; and 

[2] Did not credit the Respondent’s testimony that Co-worker had struck her first.

Judge Lee, duly noting Respondent's employment by the agency for 36 years, concluded that the gravity of the "violent conduct" of Respondent which resulted in the instant disciplinary action, and that Respondent had been involved in "four prior incidents of disruptive behavior", warranted termination and recommended that the penalty of dismissal be imposed on Respondent by the Employer.

 * The disciplinary hearing was conducted via WebEx videoconference.

 ** The "adverse inference" sanction is based on the theory that if a litigant fails to present certain known evidence or testimony, such evidence or testimony would not be helpful, or might even be harmful, to the litigant. In Varriale v City of New York, 148 AD3d 650, the Appellate Division opined the failure of a defendant in an administrative disciplinary procedure to testify concerning an event permits a disciplinary hearing officer to draw the strongest inference against the defendant permitted by the record.

Click HERE to access Judge Lee's findings and recommendation posted on the Internet.

 * * *

A Reasonable Disciplinary Penalty Under the Circumstances. NYPPL's public personnel law handbook focusing on determining an appropriate disciplinary penalty to be imposed on an officer or an employee in the public service of the State of New York and its political subdivisions in instances where the individual has been found guilty of misconduct or incompetence. For more information and access to a free excerpt of the material presented in this e-book, click HERE. 

 

Selected links to items focusing on government operations posted on the Internet during the week ending October 27, 2023

8 Features of the Best Audit Management Software for Public Sector The shift to electronic working papers in the audit community fosters collaboration but inadvertently generates dark data. Audit management software offers solutions to access, analyze and maximize audit data's value. READ MORE

AI Bots Are Helping 911 Dispatchers Manage Workloads The use of artificial intelligence is partly a response to an acute staffing crisis and the pressing need to address the mental health challenges that emergency responders face. READ MORE

Building Culture While Working Remote in Washington State Washington CIO Bill Kehoe and Chief of Staff Amy Pearson explain that while their agency is fully remote and even hiring out-of-state talent, they still find ways to bring staff together on big projects. READ MORE

Combat Public Sector Benefit Fraud  Fraudsters utilize sophisticated generative AI technologies to undermine benefits programs. Without secure identity proofing you leave individuals at risk. READ MORE

Cybersecurity Incident Disrupts Courts in Kansas  Florida's First Judicial Circuit Court system announced plans to cancel and reschedule some proceedings following a separate cyber attack earlier in the month. READ MORE

Emory University law professor, to shed light on the crucial intersection of law, policy, climate adaptation, and flood risk. VIEW MORE DETAILS AND REGISTER HERE

Erie County DA Announces Online Scam Reporting  A New York county’s district attorney has announced an online complaint form to report the myriad scams being perpetrated in cyberspace. Those reports will be reviewed by a Special Investigations and Prosecutions Bureau. READ MORE

ERP Seller Springbrook Turns to AI for Customer Service The new HelpDesk AI from Springbrook Software is designed to help customers find information about HR, payroll, tax collection and other tools. This marks the latest use of ChatGPT in tech made for local government. READ MORE

Federal Government Offers Cybersecurity Toolkit for Health Sector CISA and partners announced a toolkit bringing together advice and other resources to help health care and public health organizations improve their cyber postures. READ MORE

Guide: The New Era of Government Work Hybrid work is an exciting new world filled with the power and potential to transform agencies throughout your state or local government network. DOWNLOAD PDF

Inside the Quest to Create Unbreakable Encryption Computer scientists, mathematicians and cryptographers are on a quest to find new encryption algorithms that can withstand attacks not only from today’s conventional computers but also from tomorrow’s quantum machines. READ MORE

Job opportunities at NYC's Office of Administrative Trials and Hearings: OATH regularly posts employment opportunities on the NYC Jobs portal and on its website. View current openings.

Local Governments Band Together to Address Use of AI Led by the co-chairs named earlier this month, the members of MetroLab Network’s GenAI for Local Governments Task Force will work together to create a comprehensive resource of guidance on the use of AI technology. READ MORE

Schools Make E-Rate Cybersecurity Money Top Funding Priority The federal E-rate program has the potential to be a well of funding for cybersecurity that K-12 schools and libraries are eager to tap to protect themselves from increasingly sophisticated cybercriminals. READ MORE

The Future of Sustainable Cities: A Whole-of-Government Approach to Electric Vehicle Implementation  EVs drive urban resilience: harnessing cross-government strategy and funding for sustainable transformation. READ MORE

Transforming Community Infrastructure for Water Conservation  Local governments can drastically improve water conservation with a comprehensive approach to water management. READ MORE

Webinar: Adapting Legal Frameworks to Address Climate Change in High Flood Risk Communities  On Wednesday, Nov 1, at 1pm ET, Forerunner is hosting Mark Nevitt, an Emory University law professor, to shed light on the crucial intersection of law, policy, climate adaptation, and flood risk. VIEW MORE DETAILS AND REGISTER HERE

When Building an AI Strategy, Start With the Guardrails  States are starting to hire experts to navigate both the opportunities and the trickier aspects of AI. Maryland's Nishant Shah says job No. 1 is establishing a set of principles that set the foundation for everything else. READ MORE