Saturday, August 30, 2014
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Wednesday, August 27, 2014
Tuesday, August 26, 2014
Employee alleges his termination was in violation of Civil Service Law §75-b, the so-called public employee Whistle Blower Law.
Monday, August 25, 2014
Friday, August 22, 2014
Weiss v Teachout, 2014 NY Slip Op 05888, Appellate Division, Second Department*
Seeking to invalidate the petition designating Zephyr R. Teachout as a candidate for the office of governor, Harris Weiss alleged that Teachout did not meet the constitutional residency requirements for the office of governor.
* See, also, Jones v Blake, 2014 NY Slip Op 05919, Appellate Division, First Department, an appeal arising “out of a special proceeding in which petitioner sought to establish that respondent did not satisfy the residency requirements for the public office of Member of the Assembly.”
Thursday, August 21, 2014
Determining if two positions are similar within the meaning of Education Law §3013 in a layoff situation
The Commissioner then dismissed Mr. Goldberg's appeal.
** The test applied is whether 50% or more of the duties being performed by the incumbent of the newly created position were previously being performed by the incumbent of the position that had been abolished not whether 50% or more of the duties of the abolished position were being performed by the incumbent of the new position. For example, the incumbent of the new position could have assumed all of the duties of the abolished position yet those duties could be less than 50% of all of the duties assigned to the incumbent of the new position.
Wednesday, August 20, 2014
Limiting access to sensitive electronic databases
Concerned with access to sensitive materials contained in an electronic database, State Comptroller Thomas P. DiNapoli's auditors found that employees in six upstate New York school districts had inappropriate computer access to sensitive student data and were able to change student grades and attendance records without proper authorization.*
The Comptroller said that “Student academic and personal information must be protected by school districts. Each of the districts identified in this audit should take the simple and immediate steps necessary to improve their controls over personal, private and sensitive information. In the meantime, I have directed my audit division to expand the scope of this audit and begin examining school districts from every region of the state.”
The school districts reviewed were: Altmar-Parish-Williamstown Central School District, Indian River Central School District, Lowville Academy and Central School District, Madison Central School District, Poland Central School District and Westhill Central School District.
DiNapoli’s audit revealed that several school computer system users in each district had access to functions that were beyond their job duties or outside the scope of their responsibility. Auditors found that users in multiple school districts, including outside vendors, were able to make grade changes without proper documentation or authorization.
Auditors also found:
Four of the six districts had features within their computer system that allowed users to assume the identity or the account of other users as well as inherit increased rights or permissions;
Two districts continued to use accounts of former employees in order to make changes to more than 200 attendance records;
One district allowed generic users to view student individualized education programs; and
Only one district, Altmar-Parish-Williamstown, reviewed non-instructional staff user rights to ensure they were appropriate.
DiNapoli recommended each school district take immediate steps* to:
> Establish written policies and procedures for student information system administration including a formal authorization process to add, deactivate or change user accounts and rights and procedures for monitoring user access;
> Ensure that individuals are assigned only those access rights needed to perform their job duties;
> Evaluate user rights and permissions currently assigned to each student information system user, including outside employees and vendors, and ensure that rights are updated as needed to properly restrict access;
> Restrict the ability to make grade changes and ensure that documentation is retained to show who authorized the grade change and the reason for the change;
> Remove all unknown/generic or shared student information system accounts and deactivate the accounts of any users who are no longer employed; and
> Periodically review available audit logs for unusual or inappropriate activity.
The letters sent by the Comptroller’s office to each school district have been posted on the Internet at:
School district officials generally agreed with the audit, but some provided clarification on their policies and identified improvements they have already made. Their responses are included in the final report posted on the Internet at:
* See an audit released by New York State Comptroller Thomas P. DiNapoli.on August 19, 2014.
** These guidelines could be relevant and could be considered by other government departments and agencies in order to review their existing procedures and establishing a formal authorization process to add, deactivate or change user accounts and procedures for monitoring user access to agency computer systems electronically to the extent that they are not already in place.
Tuesday, August 19, 2014
Monday, August 18, 2014
Friday, August 15, 2014
“Under the rules promulgated by the Chief Judge, positions left temporarily vacant by the leave of absence of the permanent incumbent may be filled on a contingent permanent basis, (see 22 NYCRR 25.24[a],[d]). When the permanent incumbent's encumbrance on the position, i.e., his or her right to return to that position, expires due to the attainment by the permanent incumbent of nonprobationary, permanent status in a higher title (see 22 NYCRR 25.22[d], 25.24[b]), the position then held by the contingent permanent appointee becomes permanently vacant and subject to being permanently filled pursuant to the Rules of the Chief Judge (see 22 NYCRR 25.24[b], 25.31[a]). The Rules of the Chief Judge require that such a permanent vacancy be filled first by reference to an applicable preferred list (see 22 NYCRR 25.24[c], 25.31[a]). The Chief Administrator of the Courts is required to establish statewide preferred lists of the names of those persons who have been demoted or suspended, including those who were demoted or suspended by virtue of a workforce reduction in June 2011 (see 22 NYCRR 25.31[a]).”*
Under the Commission’s Rules, however, in the event the appointing authority affirmatively designates the appointment of an individual to a temporary vacancy as a “contingent permanent appointment,” this “special form of temporary appointment” provides the appointee with many of the benefits that flow from being permanently appointed to the position.
To effect a permanent contingent appointment, (1) the appointing authority must specifically act to provide for such a “contingent permanent” appointment*** and (2) the appointee must otherwise satisfy the mandates of §61 of the Civil Service Law with respect to permanent appointment to a position in the Classified Service of the State as the employer. Further, a tenured employee may not be reassigned to an encumbered position "unless the employee agrees, in writing, to accept a contingent permanent appointment to such position.” A CPE attains tenure in the title upon his or her being continued in the position beyond maximum period of probation for the title.
The New York State Department of Civil Service Career Mobility Office describes a contingent permanent appointment as follows: “A permanent appointment or promotion to a position left temporarily vacant by the leave of absence of the permanent incumbent of the position; such appointees have the same rights as permanent appointees; a contingent permanent employee may be displaced by the return of the permanent incumbent. (The term contingent permanent is not used in the Civil Service Law or Rules; rather, rule 4.11 refers to "permanent appointments to encumbered positions.") .”
Essentially the Commission’s Rules provide as follows with respect to the status of a CPE having tenure in the title:
* Section 25.24 Contingent permanent appointments of the Rules of the Chief Judge,. is set out on the Internet at http://www.nycourts.gov/rules/chiefjudge/25.shtml#24
The Layoff, Preferred List and Reinstatement Manual - a 435 page handbook reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html
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 http://booklocker.com/books/7401.html
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