Testing Drinking Water in School District Buildings is a Best Practice and Worthy Investment...

By Douglas E. Gerhardt and Gene Kelly

The increased focus on potability of drinking water and particularly the water provided in schools raises questions about the legal and practical obligations imposed on schools regarding testing drinking water. While legally not yet mandated (legislation is likely to be introduced soon to mandate it), school districts would do well to conduct routine testing of drinking water.

School districts must ensure a safe and healthy learning environment for students, and regular, proper testing of drinking water should be seen as an integral part of fulfilling that obligation. Ensuring water does not contain potential contaminants is a measure which, even if not required by law, is recommended best practice.

In terms of legal requirements, state and federal laws imposed obligations on owner/operators of water systems, namely the municipalities which provide the source water. The Safe Drinking Water Act (42 USC § 300g-6) (SDWA), a federal law enacted in 1974, is implemented and monitored by the U. S. Environmental Protection Agency. The SDWA requires public notice by owner/operators of public water systems depending upon the action level reached when testing for certain contaminants, such as lead and copper. The 1986 amendments to the SDWA required EPA to set standards limiting the concentration of lead. EPA issued an initial lead and copper regulation in 1991, and in 2011 Congress provided additional standards for what can be considered “lead free” plumbing.

New York also requires testing by owner/operators of water systems. Test results provide the foundation for notification requirements, again, by owners and operators of water systems that exceed lead action levels. A water system is defined as “a community, non-community or non-transient non-community water system which provides water to the public for human consumption through pipes or other constructed conveyances, if such system has at least five service connections or regularly serves an average of at least 25 individuals daily at least 60 days out of the year” (10 NYCRR §5-1.1).  The same regulation requires owner/operators of “a water system that exceeds the lead action level based on first-draw lead tap samples” to provide notice to the public. (10 NYCRR §5-1.44)

School districts generally are not water system operators under these definitions so they are not required to test. But as a best practice it is recommended that they should. And, if they derive their water for a particular building from a well source on site, they become subject to water system regulations and must test. Testing becomes a proactive endeavor which can help ensure good water is provided for cooking and drinking. Even without mandatory testing, checks will demonstrate a proactive approach toward the health and safety of all who work in and use schools. Communities have come to expect that school districts not meet the bare minimum requirements.  When it comes to student and staff safety issues, communities expect the district to go “above and beyond” what is minimally required. Doing so may even ward off lawsuits. See NY Muni Blog article “Municipal Alert: Lead in Drinking Water,” published March 24, 2016.

Once a school district determines it will test its water, it is wise to ensure this is done correctly. School districts are advised not to go at it alone. The recommended protocols and procedures for proper water sample collection are defined in the EPA’s 3Ts for Reducing Lead in Drinking Water in Schools. The protocol requires the collection of two separate samples at each water source location. The first is identified as the “first draw” and is representative of the water contained in the faucet/fixture. The “second draw” sample is intended to represent water contained in the fixture’s immediate plumbing system. The samples are collected following routine use of the fixtures/locations 8-18 hours before the sampling event. Ideally, the water should be allowed to sit in the pipes/fixtures unused for this period. This could mean over a weekend.

In addition to the sampling procedure in the EPA guidance document, specific additional sampling from a representative percentage of the source locations can further pinpoint problem areas during the initial base testing event further eliminating repeat sampling and lost time. Again, knowing how and where to conduct these tests is critical to obtaining accurate and reliable samples. Deviations from the recommended sampling protocol or procedures can result in a loss of data integrity and result in costly resampling. Performance of the testing should be completed by an objective professional firm, experienced in the sampling and versed in the ability to interpret the resulting data. While this could be seen as an additional cost to a school district (as opposed to using staff) it is a cost well worth making. Schools might want to consider the testing cost an investment in its buildings and those who use them.

The authors would like to thank Scott Norstrand and John Rigge at the environmental engineering firm Barton & Loguidice for their expertise and assistance in the development of this article.

Affordable Care Act: IRS Reporting Requirements Presentation...

By The Editorial Team

Harris Beach Partner and NY Muni Blog Contributor Joshua D. Steele gave a presentation on the Affordable Care Act and its IRS Reporting Requirements during the annual meeting of the County Attorneys’ Association of the State of New York held at the Otesaga Resort and Hotel in Cooperstown, May 16-17, 2016.  He discussed the ACA’s Employer Mandate, the 2015 IRS reporting requirements and associated common issues, and the 2016 IRS compliance issues.  Please click here to view the presentation.

U.S. Departments of Justice and Education Issue Sweeping and Forceful Guidance on Transgender Student Issues in Latest Dear Colleague Letter...

By James E. Beyer

Today, May 13, 2016, the federal government distributed a letter to public schools across the country directing schools to permit transgender students to use facilities and to participate in activities, among other things, that match their gender identity.  This Dear Colleague letter (the Letter), issued jointly by the U.S. Department of Justice and U.S. Department of Education, is the latest guidance addressing transgender student issues in public education in a week where transgender issues have reached a fever pitch with the federal government and the State of North Carolina suing one another over North Carolina’s bathroom access law.

As the government has maintained in prior guidance, the Letter reiterates that the prohibition against sex discrimination in educational programs under Title IX of the Education Amendments of 1972 encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.  When a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the Letter notes the school must begin treating the student consistent with the student’s gender identity. Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity.

The Letter focuses on four overarching areas of concern:

  1. Safe and Nondiscriminatory Environment
    In general, schools are required to provide a safe and nondiscriminatory environment for all students, including those who identify as transgender.  When students are faced with harassment based on sex, including gender identity, transgender status, or gender transition, a school must take prompt and effective steps to end the harassment, prevent its recurrence, and remedy its effects. A school’s failure to take such steps, and any other failure to treat students consistent with their gender identity, may create or contribute to a hostile environment in violation of Title IX.
  2. Identification Documents, Names, and Pronouns

    The Letter confirms that, under Title IX, schools must treat students consistent with their gender identity even if their education records or identification documents indicate a different sex.

  3. Sex-Segregated Activities and Facilities

    While Title IX permits schools to provide sex-segregated restrooms, locker rooms, shower facilities, housing, and athletic teams, the Letter makes clear that transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.  Specifically related to restrooms and locker rooms, the Letter provides that schools may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so, but they may make individual-user options available to all students who voluntarily seek additional privacy.  This Letter likewise addresses rules for sex-segregation in the context of athletics, single-sex classes, single-sex schools, social fraternities and sororities, housing and overnight accommodations, and sex-specific activities and school rules and policies that may implicate stereotypical notions of masculinity or femininity.

  4. Privacy and Education Records

    The Letter provides that a school might violate Title IX when it limits students’ educational rights or opportunities by failing to take reasonable steps to protect students’ privacy related to their transgender status, including their birth name or sex assigned at birth.  While schools may maintain records with a transgender student’s birth name or sex assigned at birth, such records should be kept confidential, and any nonconsensual disclosure of such personally identifiable information may violate the Family Educational Rights and Privacy Act (FERPA).  Crucially, in this section of the Letter, the government makes clear that even when a student has disclosed his or her transgender status to some members of the school community, a school may not rely on exceptions to FERPA in order to disclose a student’s personally identifiable information to other school personnel if those staff members do not have a legitimate educational interest in the information. Additionally, school officials may not designate students’ sex, including transgender status, as directory information because doing so could be harmful or an invasion of privacy.

    Notably, this Dear Colleague letter does not have the force of law, but makes it clear that the federal government is carving out its position that any violation of Title IX may carry with it the loss of federal aid as the threat of potential legal action.  Courts to date, including those in New York, have not definitely settled whether the prohibition against sex discrimination under Title IX includes discrimination based on one’s transgender status.  We have previously reported on one recent court decision from the Fourth Circuit Court of Appeals in Virginia, finding in favor of a transgender male student whose school had prohibited him from using the restroom that matched his gender identity.  In conjunction with this Letter, districts should continue to look to the New York State Education Department’s July 2015 guidance, which provides similar and consistent guidance in many of the areas of focus addressed above.

    Additionally, accompanying this Letter is a separate document from the government entitled Examples of Policies and Emerging Practices for Supporting Transgender Students. This document, which can be accessed here, includes policies that school districts, state education agencies, and high school athletics associations around the country have adopted to help ensure that transgender students enjoy a supportive and nondiscriminatory school environment.  While these policies and emerging practices are certainly helpful when thinking about how school personnel should address difficult transgender student issues, districts should confer with counsel prior to implementing any such policy.  In New York, for example, a district’s Dignity for All Students Act policy often will appropriately express a district’s obligation to create a safe and supportive environment for all students, including transgender students, as well as its obligation to respond to allegations of harassment, discrimination, and bullying.

New York State Property Tax Cap Upheld in Challenge by Teachers Union...

By The Editorial Team

The New York State Appellate Division for the Third Department recently ruled against the New York State United Teachers union that has been trying to throw out the New York State property tax cap law.  The union argued that the tax cap infringes on the rights of schools to raise tax revenue to pay for programs and staff.   Approved in 2014, the rebate program provides checks to homeowners whose schools and municipalities stay under the tax cap.  In its 4-1 decision, the Appellate Division ruled the tax cap is constitutional.  The union told Gannett’s Albany Bureau that it may likely take their case to the New York State Court of Appeals.

School Districts Continue to Grapple with Addressing Transgender Student Restroom and Locker Room Use...

By James E. Beyer

As transgender bathroom bills around the country garner attention in the national media, a recent judicial decision from the Court of Appeals for the Fourth Circuit in Virginia deserves a closer look. On April 19, 2016, the Fourth Circuit ruled in G.G. v. Gloucester County School Board in favor of a transgender male student whose school had prohibited him from using the boys’ restroom—the restroom that aligned with his gender identity.

As of May 5, 2016, the Gloucester County School Board has sought rehearing by all 15 judges on the Fourth Circuit Court of Appeals.  In accordance with the Federal Rules of Appellate Procedure, the Fourth Circuit issued a stay of the enforcement of the panel’s April 2016 decision remanding the case to District Court.  While it is unclear whether the court will grant the petition for a rehearing, such a procedure could result in further law and guidance on this highly contentious subject.

Previously, a lower court in the Eastern District of Virginia dismissed the student’s claims, which sought “to overturn a long tradition of segregating bathrooms based on biological differences between the sexes,” instead favoring the school board’s interest in protecting an interest in “bodily privacy.” On appeal to the Fourth Circuit—the highest court to date to consider a discrimination claim made by a transgender student—the court vacated the lower court’s decision and directed the court to revisit the student’s request for interim relief to be able to use the bathroom that corresponds with his gender identity.

The court found the Title IX regulations at issue ambiguous with respect to transgender students.  Per the regulations, separate toilet, locker room, and shower facilities on the basis of sex may be provided, but such facilities provided for students of one sex must be comparable to such facilities for students of the other sex. The court noted that the regulation is silent as to how a school should determine whether a transgender student is a male or female for the purpose of access to sex-segregated restrooms. Most importantly, the court deferred to the Department of Education Office of Civil Rights’ (OCR) January 7, 2015 Dear Colleague Letter interpreting the above Title IX regulation, providing that a school generally must treat transgender students consistent with their gender identity when a school separates students or treats them differently on the basis of sex.

Because school districts in New York are located within the jurisdiction of the Court of Appeals for the Second Circuit, the Fourth Circuit’s decision is not binding on New York schools. It could, however, be cited as persuasive law in any future New York case involving transgender student restroom or locker room use. Between federal and state guidance, OCR resolution agreements, court cases, and recent highly-publicized state laws, what is clear is that there are few clear-cut rules for school districts given the absence of black-letter law in New York addressing transgender student issues.

With no New York cases on point, school districts should look first to the New York State Education Department’s July 2015 guidance, which provides SED’s recommendations on how districts should treat transgender and gender-nonconforming students in issues ranging from locker room and restroom use, name and pronoun use, privacy and confidentiality of student records, and other practical topics. The trend is unmistakably toward accommodating transgender students to use the restroom and locker room that corresponds with their gender identity rather than their gender assigned at birth. We will continue to keep districts apprised of any future guidance from SED and any judicial decisions within the jurisdiction of the Second Circuit Court of Appeals.

In the meantime, below are some links for our education readers to peruse for additional information on this hot topic:

New York Conference of Mayors Presents Local Government Achievement Award to City of Yonkers...

By The Editorial Team

The New York Conference of Mayors recognized the City of Yonkers during its annual meeting May 1-3 for its successful consolidation of city and Yonkers Board of Education services. Yonkers Mayor Mike Spano was presented with the NYCOM Local Government Achievement Award by Executive Director Peter Baynes.

“This award is the culmination of two years of collaborative work among our governor, state delegation, city council, board of education trustees, superintendent and labor union leaders,” said Mayor Spano in a press release. “As a result of our consolidation, we prevented drastic cuts to the schools and the city and, now, Yonkers serves as a state model for other cities in New York on how to become a more efficient and effective government.”

Mayor Spano determined a consolidation of services between the Yonkers School District and the City of Yonkers was the most effective way to manage the district’s overestimation of revenues of $55 million that was discovered in 2014.  A first-of-its-kind intermunicipal agreement was passed to merge a duplication of non–academic functions such as finance, legal, communications, human resources and IT, ultimately saving the board of education $9 million and hundreds of jobs.

Foreclosures and its Impacts

By David M. Rothman

On several occasions we have commented on foreclosures and its impacts, as well as zombie homes and potential changes to legislation aimed at addressing the dilapidated state of some such homes. In our post,“Number of Zombie Properties Decreased in 2015,”we noted a RealtyTrac study which concluded a nationwide decrease in zombie homes but noted that New York remained the second highest host of zombie properties (behind only New Jersey).

Recently, the New York State Comptroller issued a report on New York foreclosures. While this report covered the foreclosure process and the time needed to comply with various court initiatives, there are several specific points worth highlighting.

Point 1: Approximately 31 percent of upstate homes in foreclosure started to become or later became vacant during foreclosure.

As we previously noted, the New York State Attorney General has proposed legislation which would, among other things, require the maintenance of properties during foreclosure or face fines.

Point 2: Approximately eight percent of downstate homes in foreclosure started to become or later became vacant during foreclosure.

A recent article noted that Westchester County, in the Lower Hudson Valley, has seen a decrease of almost 27 percent in foreclosure filings but an increase in judgements of foreclosures of eight percent.  Perhaps this is due to rising real property values which may allow for refinancing by the homeowner, perhaps the effects of the “Great Recession” are wearing off resulting in fewer loan delinquencies. Rising home values may also explain the discrepancy in the percentage of vacant homes as a home which is not “under water” may remain unaffordable to the owner but the cost of finding another property or family with which to live may be financially more difficult.

Point 3: Local governments may not fully recover costs associated with foreclosures, including code enforcement and delinquent taxes as well as special district charges.   

While many municipalities have “tacked on” such costs to tax bills, the recovery of those fees may still take more than one year between being incurred by local government and ultimately added to a tax bill, presuming of course the tax bill is paid by a lender. Those properties which have owners who have fallen on hard times but aren’t in the foreclosure process will take at least 21 months for recovery under the In Rem foreclosure process.

Point 4: Foreclosures result in lower values of surrounding properties due to, among other things, a lack of maintenance which results in lower property values. According to one study, a foreclosure depresses neighboring home values by one percent for each nearby property.

Point 5: Lower values, and/or lower resale values, in turn may lead to additional shrinking tax bases. For example, the property tax base shrank in the Mid-Hudson region and Long Island for the period 2008 through 2013.

Point 6: While the cost of servicing performing loans is low, the cost of servicing a non-performing loan is, on average, 15 times higher with costs continuing to rise.

Point 7: Some studies note a higher crime rate in neighborhoods with high foreclosure rates, versus similar neighborhoods of perhaps as much as 6.7 percent greater criminal activity. 

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 to participate in “political activities”—might have the same effect as the Heffernan decision.)

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 receipts.

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 website

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 Hutchinson.”

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 tremendous inequities in school funding between high and low needs school districts across New York.

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 Practice.

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 the Board of Regents appears to have established a transparent seven phase plan to address New York’s education standards and testing issues, there are still many moving parts to be considered by school districts and education stakeholders in the months and years ahead.

For more information, SED has a presentation on the revision and implementation plan of the new ELA and mathematics standards and tests.

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 cooking.

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 program.

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 update.

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.

  1. June 2, 2016, 1:00 p.m.: Suffolk County Water Authority Education Center, 260 Motor Parkway, Hauppauge, NY 11788.
  2. June 6, 2016, 1:00 p.m.: NYSDEC, 625 Broadway, Albany, NY 12233.
  3. June 7, 2016, 1:00 p.m.: RIT Inn and Conference Center, Henrietta Ballroom, 5257 West Henrietta Rd., Rochester, NY 14467.

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

By Patrick M. Malgieri

The number of New York’s villages experiencing “fiscal stress” declined slightly in 2015 according to a recent report from New York State Comptroller Thomas P. DiNapoli. Of the 548 villages in the state, 538 have a fiscal year ending May 31 and were evaluated in this study. The comptroller’s Fiscal Stress Monitoring System identified 18 as experiencing one of three levels of fiscal stress (three have been classified as in “significant fiscal stress,” four in “moderate fiscal stress” and 11 as “susceptible to fiscal stress”), down from 22 villages the previous year. During the period of 2013 through 2015, 42 villages have been in some level of stress in at least one year.

The comptroller’s monitoring system uses several financial indicators, including year-end fund balance, short-term borrowing and patterns of operating deficits, to create an overall fiscal stress score which classifies whether a municipality is in one of the three levels of fiscal stress described above or has “no designation.”

The comptroller’s report also indicated that:

  • Out of the nine regions in the state, only the Finger Lakes and Mohawk Valley regions were without a village in fiscal stress in 2015;
  • The number of villages on Long Island in stress declined from seven in 2013 to two in 2015; and
  • Thirteen villages moved out of fiscal stress in 2015 while nine moved into a stress category;

In April, the comptroller’s office will release fiscal stress scores for the 17 cities with non-calendar fiscal years. Scores for calendar year municipalities, including all counties, towns, 10 villages, and most cities will be released in September.

“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 regulations.

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