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Thursday, April 24, 2014

Security of government computer records

Security of government computer records
State Technology Law and other provision of law

A town recently reported that its accounting program was the victim of hacking and a number of “payroll checks” were processed and presented for payment. Although the town’s bank “caught” the fraudulent checks, the town expressed concern that personal information in its system may have been compromised and asked its attorney to advise it as to its possible liability to individuals who may suffer as a result of the theft of personal data.

To assist public agencies to cope with the increasing number of attempts to breach computer security efforts, the New York State Office of Cyber Security has issued its Cyber Security Policy P03-002, Information Security Policy, posted on the Internet at , while the State Comptroller’s Division of Local Government and School Accountability has issued a “Local Government Information Security” statement that is posted on the Internet at

A “Cyber Security Citizen’s Notification Policy” has been adopted by municipalities to deal with a breach of its computer security protocols. For example, the Village of North Hills has such a policy it has posted on the Internet [ ] as has the Town of Massena [see ]. 

In addition, General Business Law §899-aa, the Security Breach and Notification Act, addresses situations resulting from persons without valid authorization having acquired private information stored on an business  entity's computer..

Also relevant is §208(8) of the State Technology Law captioned “Notification; person without valid authorization has acquired private information,” requiring counties, cities, towns, villages and other governmental entities to adopt a computer security “breach notification policy.”

In addition, §308.1 of the act provides as follows with respect to personal privacy protection:

"Any information reported to the electronic facilitator by a government entity in connection with the authorization of an electronic signature shall continue to be withheld from public disclosure if such information was withheld from public disclosure by such government entity. Electronic records shall be considered and treated as any other records for the purposes of the freedom of information law as set forth in article six of the public officers law and the personal privacy protection law as set forth in article six-A of the public officers law.

“2. A person or an entity that acts as an authenticator of electronic signatures shall not disclose to a third party any personal information reported to it by the electronic signatory other than the information necessary to authenticate the signature unless the disclosure is made pursuant to a court order or statute, or if the information or data is used solely for statistical purposes in aggregate form. For purposes of this section, "personal information" shall mean data that identifies a specific person, including but not limited to home and work addresses, telephone number, e-mail address, social security number, birthdate, gender, marital status, mother's maiden name, and health data.”

An employee who becomes unavailable for work as a result of other employment may be terminated from his or her position

An employee who becomes unavailable for work as a result of other employment may be terminated from his or her position
2014 NY Slip Op 02644, Appellate Division, Third Department

A part-time police officer [Plaintiff] serving with a police department was appointed to a full-time position with another police department. Plaintiff’s appointment with the new police agency was subject to his satisfactorily completing a probationary period. In addition, the decision of the Appellate Division notes that Plaintiff’s new employment precluded him from engaging in outside employment for at least one year.

When Plaintiff was notified by his former employer that his employment was terminated because his new position rendered him unavailable for work, he filed a petition pursuant to CPLR Article 78 contending that his former employer’s action violated Civil Service Law §80 [sic].* Plaintiff asked Supreme Court to annul his termination and an order directing that his former employer immediately reinstate him.

Supreme Court dismissed the petition and plaintiff appealed.

Petitioner argued that his former employer improperly abolished his position and that he is entitled to remain employed despite being unavailable to perform any services for his employer for at least a year. The Appellate Division disagreed and affirmed the lower court’s ruling.

The court explained Civil Service Law §80 applies where a  “where a civil service position is eliminated due to ‘economy, consolidation or abolition of functions, curtailment of activities or otherwise,’ then suspension, demotion or termination must occur ‘in the inverse order of original appointment.’”

Here, however, the Appellate Division said that §80 “is entirely inapplicable here” as Plaintiff’s former employer did not eliminate or abolish petitioner's position. Rather, as the termination letter sent to Plaintiff indicates, Plaintiff was simply terminated so that his former employer could fill the position with someone who was available to work.

* Civil Service Law §80 applies in situations where a permanent employee of the State or a political subdivision of the State in the competitive class of the classified service is laid off as the result of the abolishment of his or her position. Civil Service Law §80-a applies to an employee of the State as the employer serving in a position in the noncompetitive class of classified service if the event his or her position is abolished.

The decision is posted on the Internet at:

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On for additional information about this electronic reference manual.

Wednesday, April 23, 2014

Extending a probationary period

Extending a probationary period
76 AD2d 973

An individual was permanently appointed to a position with the State subject to his satisfactorily completing a 52-week probationary period.

As a result of his being absent from work 24 days due to job-related injury, he was told that his probationary period was extended “24 days”. The employee was subsequently dismissed from his position “for failure to satisfactorily complete the probationary period.”

The individual sued, seeking a court order directing his reinstatement to the position. The Appellate Division, however, rejected his argument that he became permanent at the end of 52 weeks, holding that the Rules for the Classified Service* for employees of the State as the employer, provided that the “Maximum period of probationary term of any employee shall be extended by the number of work days of his absence which ... are not counted as time served in the probationary term."

The court explained that the "rationale of the regulation is to add to the expiration date of the probationary period the same period of time that the (employee) had missed during his probationary period, so that his performance of duty could be fully observed and evaluated for an entire 52 week period."

* See 4 NYCRR 4.5(g). A number of municipal civil service commissions and personnel officers have adopted similar rules.

State voters may amend a state's constitution to prohibit consideration of racial preferences with respect admission to colleges and universities if it does not reflect a racially discriminatory purpose

State voters may amend a state's constitution to prohibit consideration of racial preferences with respect admission to colleges and universities if it does not reflect a racially discriminatory purpose

The summary of the decision set out below was prepared by Justia.
The text of the decision, the several concurring opinions and the dissent are posted on the Internet at: 

After the Supreme Court decided that the University of Michigan’s undergraduate admissions plan’s use of race-based preferences violated the Equal Protection Clause, but that its law school admission plan’s limited use did not, Michigan voters adopted a new section of the state constitution (Proposal 2), prohibiting use of race-based preferences in the admissions process for state universities.

The district court upheld Proposal 2, but the Sixth Circuit reversed, concluding that it violated Supreme Court precedent.

The Supreme Court reversed. Justice Kennedy, with Chief Justice Roberts and Justice Alito, reasoned that the principle that consideration of race in admissions is permissible when certain conditions are met was not challenged; the issue was whether, and how, state voters may choose to prohibit consideration of such racial preferences. The decision by Michigan voters reflects an ongoing national dialogue; there was no infliction of a specific injury of the type at issue in cases cited by the Sixth Circuit. Individual liberty has constitutional protection, but the Constitution also embraces the right of citizens to act through a lawful electoral process, as Michigan voters did. Justices Scalia and Thomas stated that the question here, as in every case in which neutral state action is said to deny equal protection on account of race, is whether the challenged action reflects a racially discriminatory purpose. Stating that it did not, the Justices stated that the proposition that a facially neutral law may deny equal protection solely because it has a disparate racial impact “has been squarely and soundly rejected.”

Justice Breyer agreed that the amendment is consistent with the Equal Protection Clause, but reasoned that the amendment only applies to, and forbids, race-conscious admissions programs that consider race solely in order to obtain the educational benefits of a diverse student body; the Constitution permits, but does not require, the use of that kind of race-conscious program. The ballot box, not the courts, is the instrument for resolving debates about such programs. This case does not involve a diminution of the minority’s ability to participate in the political process.

A press release advising of the publication of Professor John D. Skrentny’s latest book, AFTER CIVIL RIGHTS, [Princeton University Press, 2013] notes that this year marks the 50th anniversary of the landmark Civil Rights Act of 1964, but talking about race at work remains as difficult as ever.

Professor Skrentny brings together the latest social science studies and evidence to provide a comprehensive picture of how employers manage racial difference in the 21st century—and sets out his views as to why the Civil Rights Act of 1964 is no longer in sync with that picture.

For additional information about this book, click on:

Loss of a required license or permit to perform the duties of the position

Loss of a required license or permit to perform the duties of the position
2014 NY Slip Op 50585(U),  Supreme Court, Dutchess County, Judge James D. Pagones (Not selected for publication in the Official Reports.)

In this Article 78 action a former employee of a State agency [Petitioner] challenged his summary dismissal from his position on the grounds that he did not possess a valid driver’s license to operate a motor vehicle in New York State. Petitioner asked Supreme Court to (1) annulling the Employer’s terminating him from his position, (2) directing his reinstatement to his position with back pay, benefits, service time, seniority and other fringe benefits; and (3) award him the costs and disbursements of this proceeding, together with reasonable attorney's fees.

Petitioner’s employer had notified Petitioner that his employment would be terminated because he did not meet the "minimum qualifications" of his position as he had not secured and/or maintained a valid New York State driver's license.” Alleging that the Employer’s determination was arbitrary, capricious and made in bad faith, Petitioner argued that:

(1) he should have been afforded the protections mandated by Civil Service Law Section 75, and as outlined in Article 33 of the Collective Agreements between the State of New York and the New York State Civil Service Employees Association;

(2) while minimum qualifications of employment may not rise to acts of misconduct that would invoke disciplinary procedures mandated by the Civil Service Law, a driver's license was not a minimum qualification at the time of his appointment; and

(3) the class specification for his position does not clearly identify a valid driver's license as a minimum qualification.

Judge Pagones said that it is well settled that the failure to maintain a minimum qualification for employment is not an act of misconduct nor one related to job performance that would invoke the disciplinary procedures mandated by Civil Service Law §75, citing Matter of NYS Office of Children and Family Services v Lanterman, 14 NY3d 275. 

Courts have viewed employees who lack licenses as being “unqualified,” in contrast to being “incompetent,” to perform the duties of the position. Common examples include the revocation of a truck driver’s permit to operate a motor vehicle on public roads, loss of an attorney’s license to practice law and the expiration of a temporary permit to teach. All that appears to be necessary in such cases is for the appointing authority to make some reasonable inquiry to determine if the employee may lawfully perform the duties of the position.*

Thus, explained the court, "an employee charged with failing to possess a minimum qualification of his or her position is only entitled to notice of the charge and the opportunity to contest it" and dismissed Petitioner’s action.

* See, for example: Fowler v City of Saratoga Springs, 215 A.D.2d 819 (City Engineer lawfully dismissed for failure to obtain Professional Engineer’s license by a specified date); Meliti v Nyquist, 53 AD2d 951, affirmed 41 NY2d 183 (immediate suspension of teachers was lawful because their teaching licenses had expired); and O’Keefe v Niagara Mohawk Power Corp, 714 FSupp 622, (traveling company demonstrator was not discriminated against when a private employer terminated him after his driver’s license was suspended)

The decision is posted on the Internet at:

Tuesday, April 22, 2014

Probationary employee improperly terminated entitled to back salary

Probationary employee improperly terminated entitled to back salary
92 AD2d 259

A probationary teacher was found to have been “improperly terminated” by her school principal. One year later the Chancellor of the Board of Education, City of New York, reinstated the educator to her former position. 

As the Court of Appeals noted in Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763, where there has been an unlawful removal from service, back pay is authorized upon reinstatement.

Goggle Statistics – March 2014

Goggle Statistics – March 2014

Goggle Statistics reports the following have been the most frequently accessed NYPPL items as of March 31, 2014.

Essentials of the “Pickering Balancing Test”             2721 “hits”

The legal distinction between domicile and residence            1655 “hits”

Any administrative action in the nature of discipline taken against a tenured teacher must be taken pursuant to Education Law §3020-a exclusively            1234 “hits”

Employee's inability to provide the necessary urine sample for a drug test because of a medical condition trumps allegations of misconduct                   1070 “hits”

Two different complaints; two different forums            970 “hits”

New York State Comptroller Thomas P. DiNapoli offers proposal to encourage better local government budgeting practices

New York State Comptroller Thomas P. DiNapoli offers proposal to encourage better local government budgeting practices
Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli has introduced a proposed bill* aimed at helping local governments across New York improve their long-term budget planning. The bill would provide reimbursement from the state to municipalities for costs incurred for hiring financial advisors to assist in the development of multi-year budget plans.

Key elements of the proposed legislation include providing for counties, cities, towns and villages identified as fiscally stressed to be reimbursed by the state’s Financial Restructuring Board for Local Governments for all or part of the costs associated with long-term budget planning and multi-year financial planning to enable these entities to develop revenue and expenditure trends, establish long-term priorities and goals, and take into consideration the impact of near-term budgeting decisions on future fiscal years.

* Comptroller’s Program Bill #35. The proposed legislation is part of the Comptroller’s fiscal stress initiative that includes the creation of a Fiscal Stress Monitoring System for local governments. The system, implemented in 2013, uses financial indicators that include year-end fund balance, cash position and patterns of operating deficits to create an overall fiscal stress score which classifies whether a municipality is in “significant fiscal stress,” in “moderate fiscal stress,” is “susceptible to fiscal stress,” or “no designation.” As of April 22, 2014, DiNapoli’s monitoring system has identified a total of 142 municipalities in some level of fiscal stress. This includes 16 counties, 18 towns, five cities, 16 villages and 87 school districts.

The Comptroller’s proposal is posted on the Internet at:


The Warren M. Anderson Breakfast Series Seminar’s Campaign Finance session is scheduled for April 29, 2014

The Warren M. Anderson Breakfast Series Seminar’s Campaign Finance session is scheduled for April 29, 2014
Source: Government Law Center, Albany Law School

The Albany Law School’s Government Law Center will host the next 2014 Annual Warren M. Anderson Breakfast Seminar Series, a nonpartisan hour-long breakfast program, on April 29 from 8-9 a.m. in the Assembly Parlor, at the State Capitol, 3rd FL. The program continues to be offered free of charge, but space is limited.

Richard Brodsky and John Faso will discuss Campaign Finance.

For those interested, each seminar is accredited for one hour of transitional and non-transitional CLE credit in the area of “Professional Practice.”

To register or to obtain more information, contact Ms. Amy Gunnells at or telephone 518-445-2329.

Applying for accidental disability retirement and performance of duty disability retirement benefits

Applying for accidental disability retirement and performance of duty disability retirement benefits
2014 NY Slip Op 02120, Appellate Division, Third Department

The Appellate, considering the application of a correction officer [Plaintiff] to review a determination of New York Employees’ Retirement System that denied her applications for accidental disability and performance of duty disability retirement benefits, dismissed the action on the grounds that Petitioner’s application for such benefits was untimely filed.

Petitioner was injured when she slipped on ice while on her way to the building where her locker was located in order to change out of her uniform. Thereafter, she returned to work for only one day and received her last payroll check in July 2009. Petitioner was then placed on unpaid approved medical leave of absence and received workers' compensation benefits.

In January 2011, Petitioner applied for accidental disability retirement benefits under Retirement and Social Security Law §507-a, alleging that she was permanently incapacitated as a result of the injuries she sustained when she slipped on ice some two years earlier. In the alternative, Plaintiff filed an application for performance of duty disability benefits pursuant to §507-b of the Retirement and Social Security Law.

In February 2011, Petitioner was terminated and issued a check representing her accrued vacation pay. In the alternative, Plaintiff filed an application for performance of duty disability benefits. Both applications were denied and petitioner timely requested a hearing and redetermination.

Addressing the issue of the timeliness of Petitioner’s applications for accidental disability retirement benefits the Appellate Division explained that §507-a(b)(2) specifically provides that such an application "must be filed within three months from the last date the member was being paid on the payroll or within twelve months of the last date he [or she] was being paid on the payroll provided he [or she] was on a leave of absence for medical reasons without pay during such twelve month period provided the member was disabled at the time he [or she] ceased being paid."

Noting that Petitioner did not file her application for accidental disability retirement benefits within these time limits, the court ruled that neither her receipt of workers' compensation benefits nor the check she received for accrued vacation time qualifies as payments "on the payroll" for purposes of the statute, citing Matter of Schwartz v McCall, 300 AD2d 887.

Accordingly, the Appellate Division held that the Retirement Systems determination “that [Petitioner's] application [for accidental disability retirement benefits] was untimely is rational and supported by substantial evidence."

Turning to the denial of Petitioner's §507-b application for performance of duty disability retirement benefits, the court conclude that there was substantial evidence supporting Retirement System's determination as both Petitioner and her counsel conceded at the hearing that the January 2009 incident was not caused by an act of an inmate and no proof that would support such a finding was produced at the hearing. Thus, said the Appellate Division, Petitioner's current claim that her fall must have been caused by negligent maintenance on the part of an inmate is speculative and lacks support in the record.

The decision is posted on the Internet at:

Electronic books [e-books] focusing on New York State and Municipal Public Personnel Law:

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. A 1900+ page e-book. For more information click on

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on

A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on

General Municipal Law§§ 207-a and 207-c - Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on


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