U.S. Supreme Court Ruling Expands Public Employers’ Liability under the First Amendment...

By Daniel J. Moore and Kyle W. Sturgess A recent decision by the U. S. Supreme Court in the case of a police officer, who was demoted for what his superiors mistakenly thought was a free-speech exercise, may expand public employers’ liability under the First Amendment—by focusing on the motivations behind an employer’s actions toward its employees, rather than on whether employees have actually exercised their First Amendment rights. In Heffernan v. City of Paterson (decision text here), the Supreme Court was confronted with an unusual question: whether a public employee could sue his employer over First Amendment rights that he had not actually exercised. The plaintiff, Jeffrey Heffernan, was a police officer for the city of Paterson, New Jersey during a 2005 mayoral election between incumbent mayor Jose Torres, and challenger Lawrence Spagnola.  Paterson’s chief of police was a Torres appointee, as was Heffernan’s immediate supervisor. Heffernan, meanwhile, was a friend of the challenger, Spagnola. At some point during the campaign, Heffernan stopped at a Spagnola campaign office, to pick up a large campaign lawn sign for his mother. While picking up the sign, he had a conversation with some Spagnola campaign staff. Fellow police officers who saw Heffernan at the campaign office (campaign sign in hand) spread word to Heffernan’s supervisor and the chief of police, who demoted Heffernan the next day from detective to patrol officer—for what they thought was his “overt involvement” in the Spagnola campaign. Heffernan sued the city for what he claimed was a violation of his First Amendment rights to freedom of speech and freedom of association. However, both the federal district court that heard his case, and the federal Circuit Court of Appeals that reviewed Heffernan’s appeal, found that when Heffernan picked up the campaign sign for his mother and made small talk with some Spagnola campaign officials, he had had no intention of communicating a political message, or “associating” himself with the Spagnola campaign; he was simply doing a favor for his mother. As a result, Heffernan had not actually exercised his First Amendment rights—even though Heffernan’s superiors thought he had, and demoted him for it. In short, what would have been a viable claim for First Amendment retaliation against the city was dismissed, because the courts believed such a claim depended on Heffernan’s actions, not his employer’s motivation. The Supreme Court overturned the Circuit Court of Appeals’ decision. In its opinion, the court examined whether a First Amendment retaliation claim required a public employee to actually exercise his or her rights, or whether it was enough that an employer believed he or she had done so. After reviewing its own First Amendment cases, the court concluded that: “the government’s reasons for demoting Heffernan is what counts here. When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action…even if, as here, the employer makes a factual mistake about the employee’s behavior.” The case reaffirms the need for public employers to use caution when disciplining employees and ensures that—if their motivations are, in fact, retaliatory—these employers will not be able to fall back on the defense that an employee did not actually engage in First Amendment-protected behavior. (New York’s private-sector employees do not enjoy First Amendment protections, but private-sector employers in New York should consider whether the state’s “recreational activities” law—which, among other things, protects an employee’s right...

Non-Hotel Rentals in New York are Surging...

By David M. Rothman We have commented previously on the surge of AirBnB and other non-hotel rental service providers in New York state: “Municipalities Wrestle with the Challenges of Non-Hotel Rentals” and “Hotel Tax, Non-Hotel Rentals and the Emergence of the Sharing Company.” Those posts included stories of some municipalities suing Airbnb for unpaid hotel taxes as well as ordinances aimed at regulating this market. A recent report from AirBnB noted that nearly 100,000 visitors came to the Lower Hudson Valley and booked their stays through AirBnB. According to the report, the average stay was just over one week (7.7 days) generating $2 million for the hosts in Westchester County. While AirBnB states this money allows for additional local spending – potentially additional money for the traveler to spend in local stores or for the host to spend improving or maintaining their property – others in the hotel industry believe it is a disruption to the market and yet others such as local governments may see fewer hotel taxes collected. As 28 percent of local revenue comes from sales tax including hotel occupancy charges, $2 million of hotel occupancy charges if otherwise uncollected by the host or AirBnB may add up quickly in lost revenue to the municipalities of the Lower Hudson Valley. Given the proximity to New York City this trend will likely continue in the Lower Hudson Valley. Other tourist destinations and/or areas surrounding major population centers within the state may also see continued increases in the use of AirBnB, and its competitors potentially resulting in continued declines in hotel occupancy...

New York Special Education Law Seminar Scheduled for May 10...

By The Editorial Team The National Business Institute has scheduled a continuing education program entitled, “New York Special Education Law,” for May 10 in Albany.  Harris Beach attorneys Howard J. Goldsmith and Susan E. Fine are among the featured presenters.  They are NYMuniBlog contributors and Howard serves on the NYMuniBlog Editorial Team.  Howard will discuss due process procedures and Susan will talk about protecting the rights of children with special needs. She is also presenting on ethics in special education. The program will provide seven hours of New York State and New Jersey Continuing Legal Education credits and six hours of New York State Teacher Education credits with district approval. The program is designed for school administrators, school board members, counselors, teachers, superintendents, principals, school psychologists and attorneys.  Registration is available on the National Business Institute...

Trivial Defect Doctrine after Hutchinson

By The Editorial Team When is a defect too small to be actionable?  This question was recently answered by the New York State Court of Appeals in Hutchinson v. Sheridan Hill House Corp. To answer this question, one must look at all the specific facts and circumstances of the case, not size alone.  The key issue to resolve is whether the intrinsic characteristics or the surrounding circumstances of the defect magnify the dangers it poses to a pedestrian. In Hutchinson, the New York State Court of Appeals sought to clarify the trivial defect standard. Hutchinson concerned three separate appeals. Each of the underlying personal injury actions alleged defects causing individuals to trip and fall. And in each action, the Appellate Division had found the defect to be trivial. In overturning two of the decisions, the Court of Appeals acknowledged that it is usually more difficult to define what is trivial than what is significant.  It used the three appeals before it to illustrate how the trivial defect doctrine should be applied by the lower courts. We examine this issue in our Harris Beach Legal Alert, “The Trivial Defect Doctrine after...

A Look at the Finer Points of the New York State Budget...

By Joseph V. Frateschi While much has been said (and written) about the big ticket items contained in the 2016-2017 New York state budget (i.e., increase in minimum wage, paid family leave), we here at the NYMuniBlog decided to look at some of the finer points contained in the budget, which may provide aid to municipalities and their respective populations.   Increases in Agricultural Expenditures This year’s budget includes $44.1 million set aside for agriculture (an increase from $33 million set aside in last year’s budget). State funds will go to numerous programs including the Young Farmers Fund, as well as organizations aimed to help veterans establish careers in agriculture. Funds will also be used to create a new tax credit specifically to be utilized by farm owners to offset rising minimum wage costs. Farm owners will receive a tax credit for every employee on his or her payroll over the course of five years, and the credit will incrementally increase each year.   Increased Funding for Heroin and Opioid Abatement The problems associated with heroin addiction have increasingly plagued New York municipalities. The rise in opioid and heroin use continues to put a strain on municipalities’ law enforcement and emergency medical departments. Recognizing that fighting the heroin and opioid epidemic is a high priority item, the 2016-2017 New York state budget allots $166 million to expand and strengthen programs to fight heroin and opioid addiction.   Establishment of a Fund to Support Communities Losing Power Plants With the closure of large power plants throughout the state looming, municipalities are at risk of losing large amounts of real property tax revenues. The 2016-2017 budget creates a fund to assist these communities and allots $30 million to the fund. Details on which municipalities will be eligible for funds and how municipalities may apply for these funds have not yet been made clear.   No Funding for Ethics Reform Interestingly, after a year filled with high profile trials of New York state politicians, this year’s budget saw no increase in ethics reform spending. Nonetheless, Governor Cuomo stated in a press conference on April 1 that “ethics is going to be the main focus between now and June.”  The NYMuniBlog will continue to follow and report on possible ethics reform packages introduced by the governor.   Elimination of the Gap Elimination Adjustment (the GEA) While much ink has been spilled over the unprecedented levels of education funding in the 2016-2017 budget (approximately $24.8 billion), less attention has been paid to the elimination of the GEA.  The GEA was originally implemented in the 2010-2011 fiscal year.  The GEA essentially constituted a claw-back of funds allotted to school districts throughout the state to eliminate New York’s budget deficits.  Elimination of the GEA constitutes an important pronouncement by the state of its intention over time to move back toward its previous goal of eventual full funding of the Foundation Aid Formula. That objective was pushed off course following the 2008 financial collapse and the state’s higher priority of closing its own budget shortfall. Well, the state budget gap in which the GEA was intended to address no longer exists. With no gap, there is clearly no need for a gap elimination adjustment. While the elimination of the GEA may not be the panacea sought by many school districts to solve their financial challenges, it does signal a change in course for the state to now focus its priorities in education to address and eliminate the...

Managing Your Cybersecurity Risk and Liability Exposure...

By The Editors The rise of cybercrime, like ransomware hacks or attacks from disgruntled former employees, makes it imperative for organizations to take affirmative steps to reduce their risk and implement vigilant monitoring and in-house training. Recognizing cybercrime can impact any organization, even those making a conscientious effort to thwart attacks, critical steps our cybersecurity professionals recommend to our clients, include: Click the following link to read full legal alert “Managing Your Cybersecurity Risk and Liability Exposure” written by Alan Winchester, leader of the Harris Beach Cybersecurity...

Board of Regents Issues Proposed Timetable for Development and Implementation of New Standards and Tests...

By Marnie E. Smith In late-February, the Board of Regents issued its proposed timeline for the review and implementation of changes to the Common Core standards which they originally adopted  in January 2011. The Regents’ timeline divides the tasks into seven phases. Their plan will culminate in the 2018-2019 school year with new grades 3 – 8 English language arts (ELA) and mathematics tests being administered that align with the newly developed state standards. During Phase 1, which is occurring now, the New York State Education Department (NYSED) is seeking applicants for the Standards Review Committees. NYSED encourages classroom teachers at all grade levels, school administrators, curriculum specialists, college professors, school librarians, and teachers who work directly with students with disabilities and English language learners to apply. The Committees will be charged with developing guidance and proposing recommended revisions to the standards based on the AIMHighNY survey results, recommendations from the Content Advisory Panels, and guidance from other stakeholder groups. Applications to serve on the ELA or Mathematics Standards Review Committee are now being accepted. The Committees’ recommended standards will be posted at AIMHighNY for public comment during Phase 2 (July-October 2016) and Phase 3 (October-November 2016) will include the revision of the standards to reflect the feedback received during public comment. It is anticipated the Board will consider and adopt the standards in Phase 4 (November-December 2016). After adoption, Phase 5 provides for school districts in New York state to use the  remainder of the 2016-2017 school year to plan for the implementation of the new standards. During the 2017-2018 school year, Phase 6, the Board of Regents expects school districts to align their curriculum with the revised standards and provide professional development to educators and parents beginning in summer 2017.  The 2018-2019 school year, Phase 7 will be the first year during which the revised assessments are administered to students. It is encouraging to see how the proposed review process includes several opportunities for engagement and feedback from stakeholders. We are optimistic that the new standards and assessments will incorporate comments from those who are closely involved with testing and, hopefully, will encourage more positive outcomes and useful data from the revised assessments. Interestingly, the revised assessments will be administered one year prior to the expiration of the four-year moratorium on using student state assessment scores as part of the formula for computing teacher and principal APPR scores. As previously discussed in our blog post, “Common Core Task Force Report and the Response of the Board of Regents,” New York state school districts are using transition scores to make employment decisions until the 2019-2020 school year. Under current guidance, 2019-2020 will be the first school year that the revised standards and assessments will be linked to APPR scores and transition scores will no longer be developed. While this aggressive timetable has been approved and set into place by the Board of Regents, many factors are still in play that may amend, delay, or adjust this plan. Newly elected Board of Regents Chancellor Betty Rosa has indicated she would like to review the plan and possibly extend the use of APPR transition scores. The legislature and the governor have also yet to respond to the Regents proposal. As in the past few years, the legislature and the governor can still include amendments to APPR, testing, and education policy through the budget process by April 1 or through an end of session compromise bill by mid-June 2016. So while...

Municipal Alert: Lead in Drinking Water

By Steven J. Rice The controversy regarding lead in drinking water is likely to mushroom far beyond the current issues arising in Flint, Michigan and Newark, New Jersey. Municipalities and property owners are at risk for law suits alleging exposure to lead from drinking water. The reality is that lead pipes (water mains), buried underground, have been delivering water to residents in all areas of the United States since the days that pipes replaced wells. Older buildings within cities of all sizes contain lead pipes. Water itself is generally free of lead while traveling from its source toward its ultimate user. It is when the water enters buildings and homes that lead is most likely to be introduced. This is due, in large measure, to water which sits stagnant or moves slowly in pipes within buildings before being released in sinks and tubs for drinking, bathing, cooking, etc. Municipalities may increase their chances of successfully defending litigation by regularly testing the water. Since lead is ubiquitous in our society, potential litigants will likely have difficulty establishing water as the source of the lead exposure as opposed to multiple other sources, such as paint, toys, household remedies and soil. From a practical point of view, any such litigation will likely be defensible as to damages, since the lead exposure from water is usually minimal. The best practice for anyone living or working in an older building is to let the water run for several minutes before using it for drinking or...

Batavia Partnership Advances Brownfield Planning to an $18 Million Mixed-Used Development...

By Richard E. Rising The Batavia Development Corporation (BDC) and the city of Batavia, along with their partners, recently announced an exciting $18 million mixed-use redevelopment project known as Ellicott Station on four acres of downtown land that currently houses a vacant former auto repair shop and an empty dilapidated multi-story building.  The selected developer, the Savarino Companies of Buffalo, will clean up and develop the site for new offices, commercial and light industrial uses, market rate apartments and public activity. Ellicott Station is one of five “strategic sites” identified by the city through its Brownfield Opportunity Area (BOA) planning work. The community hopes it will be a model for future efforts to revitalize the larger Batavia downtown area, attracting private investment, creating new jobs and transforming the local economy. Critical to this success was the creation of a partnership composed of the BDC, the city, the Genesee County Economic Development Center (GEDC), Genesee County and the Batavia City School District. This partnership created the Pathways to Program Capital and Reinvestment Fund aimed at encouraging private investment and redevelopment of vacant or underutilized, and difficult to develop properties on the city’s designated 366-acre Brownfield Opportunity Area. Here, the city, county and school district have agreed to allow for the diversion of a portion of future property tax payments through a Payment-In-Lieu-of Taxes (PILOT) agreement for future GEDC projects into a new fund that would reinvest in and incentivize redevelopment projects in the BOA. The fund would be used to help eligible GEDC-approved projects. Assuring that good economic development planning leads to actual private investment and impactful projects is part of the Ellicott Station story and the success of the BDC and its partners.  Harris Beach was fortunate to be able to help. Its attorneys and economic development staff were part of a consultant team that assisted the city to formulate the BOA plan. As follow up, Harris Beach has been retained by the BDC to help make the plan a reality by working with BDC staff to attract private investment and facilitate good redevelopment projects in the BOA. This work also included preparing a New York State Brownfield Cleanup Program (BCP) application for the project and advising the partnership in the creation of Batavia’s Pathways to Prosperity...

Drone Regulations Continue to Remain under Federal Aviation Administration Authority...

By David M. Rothman Readers may remember our September 15, 2015 blog, “Concern Over Drones: Air Rights, Privacy, Health and Safety are Among the Issues,” in which we noted that in 2014 the National Transportation Safety Board (NTSB) overturned a federal judge ruling that the Federal Aviation Administration (FAA) does in fact have the authority to regulate drones. The NTSB ruling, regarding an individual flying a drone over the University of Virginia campus in Charlottesville, cited an FAA advisory stating that model aircraft must remain less than 400 feet above ground level. Then in December 2015, the FAA began requiring owners to register their drones weighing between 0.55 and 55 pounds and since the requirement went into effect, approximately 400,000 drone owners have registered with the FAA. Now, according to a story in the March 15, 2016 edition of the Washington Post, the United States Senate is considering providing additional funding to the FAA and directing the FAA to require online testing for a drone operating license and mandating uniform safety features be installed in all drones. Such requirements, if enacted, may shed light on the appropriateness of drone regulation since as of December 2015 lawmakers in 45 states have considered restrictions on drones while the FAA claims exclusive jurisdiction. The FAA office of chief counsel has published a “fact sheet” on when a local law may be appropriate . Also mentioned in our September 15 post was the case of a Kentucky man who was arrested in the summer of 2015 for shooting down a drone flying over his property. That shooter was arrested and charged with mischief and endangerment. Since then the charges were dismissed;  the judge in the case ruling “that it was an invasion of their privacy and that they had the right to shoot this drone.” Following the dismissal of charges, the drone operator filed a complaint in Federal Court on January 4, 2016 (U.S. District Court for the Western District of Kentucky Boggs v Merideth) seeking confirmation of the exclusivity of FAA jurisdiction as to the flight of drones. Also raised in the complaint are concerns over the property rights of the landowner and the drone operator.            As these regulations become clear and when a decision is made in the Kentucky case we will, of course, provide an...

New York State Department of Environmental Conservation Seeks Comment on Proposed Solid Waste Management Regulations...

By Gene Kelly – @GKelly_HB The New York State Department of Environmental Conservation has proposed a rulemaking which it characterizes as a “comprehensive revision to existing regulations” governing solid waste management facilities. Long in the making, the last comprehensive revisions to the regulations governing solid waste management in New York state occurred in 1993. In support of these regulatory changes a Draft Generic Environmental Impact Statement (DGEIS) has been prepared. The revisions include technical amendments and clarifications, as well as updated criteria needed due to legal and policy developments. Some notable areas of proposed change are aimed at climate change and sustainability concerns. The existing regulations for solid waste management facilities are currently found in Part 360. A component of DEC’s proposed rulemaking is to subdivide the solid waste management facility regulations into groups that are similar in nature, such as facilities that recycle and recover materials. Therefore, the current Part 360 criteria will be broken up and found in Parts 360, 361, 362, 363, 365, and 366. In addition to the solid waste management facilities and activities currently regulated under Part 360, this proposed rulemaking includes revisions to regulations governing waste transportation (Part 364) and state assistance grants to municipalities related to solid waste management (Part 369). This rulemaking will also incorporate minor amendments to Parts 621 and Parts 370-374. Overview of Changes Among the noteworthy new or updated areas of regulation are management of historic fill (including criteria for on-site use, off-site use and disposal); reuse of navigational dredge material; materials recovery facilities; construction and demolition debris management; radiation detection screening requirements for shipments; landfill gas collection and destruction; landfill closure and post-closure requirements; limitation of existing disposal exemption for certain materials; landfill construction technical criteria; waste transporter requirements; biohazard and regulated medical waste requirements; streamlined local solid waste management planning (LSWMP) requirements; and harmonization of LSWMP and State Assistance Grants processes. The full text of the proposed rulemaking and associated documents is available on the DEC website.   Public Comments on Proposed Rules Written comments on these draft regulations and the DGEIS will be accepted until 5:00 p.m. on July 15, 2016. Comments must be submitted to: SolidWasteRegulations@dec.ny.gov, or to Melissa Treers, P.E. New York State Department of Environmental Conservation Division of Materials Management 625 Broadway Albany, NY 12233-7260 (518) 402-8678   Public Hearings Public hearings regarding the proposed regulations and DGEIS will be held during the public comment period at the following times and locations. June 2, 2016, 1:00 p.m.: Suffolk County Water Authority Education Center, 260 Motor Parkway, Hauppauge, NY 11788. June 6, 2016, 1:00 p.m.: NYSDEC, 625 Broadway, Albany, NY 12233. June 7, 2016, 1:00 p.m.: RIT Inn and Conference Center, Henrietta Ballroom, 5257 West Henrietta Rd., Rochester, NY...

Number of New York State Villages in Fiscal Stress Declines...

New York State Comptroller Thomas P. DiNapoli recently reported that the number of New York’s villages experiencing “fiscal stress” declined slightly in 2015.

“Political Subdivisions” Defined for Purpose of Issuing Tax-Exempt Bonds...

By Marybeth Frantz The IRS and United States Treasury Department recently released new proposed regulations as to which entities qualify as “political subdivisions” for purposes of issuing tax-exempt bonds and using facilities that those bonds finance. Under the current regulations, a “political subdivision” must contain a substantial amount of one of three sovereign powers: police power, power of taxation, or power of eminent domain. The new proposed regulations maintain this requirement and also add two additional criteria for qualification as a political subdivision: possession by the entity of a governmental purpose with no more than incidental private benefit; and control over the entity by a state or local governmental unit or broad-based electorate designated by such unit. These regulations are currently in proposed form and are subject to a public comment period through May 23, 2016 and a public hearing, which is scheduled for June 6, 2016. While these new regulations may significantly impact certain issuers and proposed deals, New York local development corporations should not be impacted as they generally qualify as issuers of tax-exempt bonds and users of tax-exempt bond proceeds under different sets of criteria – and have generally not been viewed as political subdivisions, even under the existing...

Solar Power on Landfills: A New York State DEC Webinar...

By Gene Kelly The New York State Department of Environmental Conservation will present a 90-minute program titled “Solar Power on Landfills – A Climate Smart Communities Webinar” that will examine the many benefits of utilizing capped landfill space to generate pollution-free energy. The webinar will be held on March 10 at 10:30 a.m. Closed landfills are often attractive locations for municipal solar projects because of the limited number of alternative uses for these sites. The webinar, part of DEC’s ongoing Climate Smart Communities webinar series, will provide an overview of the special considerations involved when installing solar power on landfills. Speakers from the U.S. Environmental Protection Agency, the New York State Energy Research and Development Authority and the DEC will describe the resources available to support these projects. Webinar participants will also learn about case studies from the growing number of municipalities in New York state that have successfully installed solar power on their landfills and are thereby reducing their carbon footprint. Follow these steps to join the webinar: First join the online meeting by clicking this link: https://meetny.webex.com/meetny/j.php?MTID=m6714e80059acbc301228a3ea694f1734 Enter your name and email address. Enter the meeting password: NYSDEC1 Click...

Using Municipal Crowdfunding to Finance Projects...

By Joseph V. Frateschi

What do indie films, rock bands and municipalities have in common? The answer may be the ability to harness the power of crowdfunding for financing projects. For municipalities, municipal crowdfunding may be an alternative to traditional forms of financing select projects.

Is There a Place for Medical Marijuana in New York State Schools?...

By Jeffrey J. Weiss and Marnie E. Smith – The recent legalization of medical marijuana in New York state through the Compassionate Care Act has led to an unanticipated phenomenon

Solar Permitting Resource Guide Helps Municipalities Solarize Westchester...

As part of Solarize Westchester, the Pace Law School Land Use Law Center recently released the Barrier Removal for Solar Permitting Resource Guide. The guidance document was created to help municipalities identify and minimize barriers to facilitate small-scale, roof-mounted solar electric systems.

Recommendations from Law Enforcement Leaders on New Police Standards...

By Richard E. Rising – Since the recent rash of highly publicized police-citizen confrontations, there has been increasing attention given to evaluating the effectiveness of current police policies and procedures that guide the police response in these cases. One organization, the Police Executive Research Forum (PERF), unveiled what could be a landmark set of…

Bills on Zombie Properties Held Up Again In New York State Legislature...

By Richard E. Rising
In 2015 and for the second year in a row, bills were introduced in the New York State Senate and Assembly to address the growing problem of so called zombie properties.

States and Counties Looking at Options to Finance Increasing Debt...

By David M. Rothman

A lot of attention has been paid, including by those of us at the NY MuniBlog, on the financial difficulties of Detroit and Chicago. More recently, attention has been paid to the ongoing financial difficulties in Puerto Rico where that government recently clawed back funds to make payments of nearly $329 million to holders of general obligations debt which has triggered lawsuits from Ambac Financial Group and Assured Guaranty.

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