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Wednesday, July 27, 2016

Typically the doctrine of equitable estoppel is not applied to a governmental entity exercising a governmental function or correcting of an administrative error


Typically the doctrine of equitable estoppel is not applied to a governmental entity exercising a governmental function or correcting of an administrative error 
Palm v Tuckahoe Union Free School Dist., 2016 NY Slip Op 05558, Appellate Division, Second Department

The doctrine of equitable estoppel is typically raised in an effort to bar Party A from acting in a manner inconsistent with Party A’s earlier position concerning a matter where its change of position is to the detriment of Party B, who acted in reliance of Party A's earlier position. Equitable estoppel was one of the arguments advanced by the plaintiffs in this Article 78 action, contending that such a change in  defendant's position was to Plaintiffs' detriment.

Stephen Palm brought this action on behalf of himself and certain owners of units [Plaintiffs] in a 28-unit condominium complex against the Tuckahoe Union Free School District [Tuckahoe] alleging that Plaintiffs had elected to exercise their statutory right to designate Tuckahoe as their school district pursuant to Education Law §3203(1)* and that Tuckahoe had wrongfully deprived them of that right.

In support of their claim, Plaintiffs argued that certain condominium unit owners had paid school taxes to Tuckahoe and had relied on Tuckahoe’s representations that this right of election was available to them pursuant to Education Law §3203(1). In the alternative, Plaintiffs argued that Tuckahoe was equitably estopped from depriving them of the right to designate Tuckahoe as their school district.

After a jury trial, the jury returned a verdict in favor of Plaintiffs that, in effect, held that certain owners of the condominium units were [1] entitled under Education Law §3203(1)(b) to elect Tuckahoe as their school district of choice and that [2] Tuckahoe should be equitably estopped from depriving the condominium unit owners who testified at the trial of their right to designate Tuckahoe as their school district of choice.

Tuckahoe then asked the court for a judgment in its favor notwithstanding the jury’s verdict as a matter of law. Supreme Court granted Tuckahoe’s motion and Plaintiffs appealed. 

The Appellate Division ruled that Supreme Court properly granted Tuckahoe’s motion to set aside the jury’s verdict that declared that the Plaintiffs could designate Tuckahoe as their school district pursuant to Education Law §3203(1).

Addressing Supreme Court’s granting Tuckahoe’s motion to set aside the jury verdict in favor of certain Plaintiffs as a matter of law, the Appellate Division said that "[a] motion for judgment as a matter of law … may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial….”

That said, the Appellate Division concluded that there was “no rational process by which the jury could find in favor of the [Plaintiffs]" as a matter of law.

As to the issue of the application of the doctrine of equitable estoppel, the Appellate Division, citing Matter of Daleview Nursing Home v Axelrod, 62 NY2d 30, affirmed Supreme Court’s granting that branch of Tuckahoe’s motion to set aside the jury’s verdict, explaining that “[e]stoppel generally is not available against a municipal defendant with regard to the exercise of its governmental functions or its correction of an administrative error.”

Noting that although there are exceptions to this “general rule,” and that they are applicable only when there are "exceptional circumstances" such as the "wrongful or negligent conduct" of a governmental entity, or that entity's "misleading nonfeasance" induces a party "relying thereon to change his or her or its position to his or her or its detriment" and which resulted in a "manifest injustice," the Appellate Division concluded that there was no valid line of reasoning and permissible inferences from which the jury could rationally have found that Tuckahoe had engaged in any wrongful or negligent conduct or misleading nonfeasance resulting in a "manifest injustice" that would trigger the application of an exception to the general rule with respect to Plaintiffs' situation in this instance.

Accordingly, said the Appellate Division, Supreme Court properly granted Tuckahoe’s motions pursuant to CPLR §§4401 and 4404(a).

* Education Law §3203(1) provides for the selection of a school for a child to attend when the boundary line between two school districts runs through the dwelling on the property or, in the case of an owner-occupied single family dwelling unit, runs through the property on which the dwelling unit is located.

The decision is posted on the Internet at:

Tuesday, July 26, 2016

Some guidelines to consider in determining the records to be delivered, in whole or in part, in responding to a Freedom of Information Law request


Some guidelines to consider in determining the records to be delivered, in whole or in part, in responding to a Freedom of Information Law request
Livson v Town of Greenburgh, 2016 NY Slip Op 05570, Appellate Division, Second Department

In deciding this appeal the Appellate Division set out a number  of  guidelines of value to both custodians of public records that are being sought pursuant to a Freedom of Information Law [FOIL] request and those seeking the disclosure of public documents.  

The genesis of this case was Dorrine Livson’s submission of a FOIL request to the Town of Greenburgh [Town] in her capacity as a representative of a Civic Association seeking the list of the names and email addresses of all persons who “signed-up” to receive updates concerning items posted on the Town's website by email. Referred to as the "gblist," and maintained by a private vendor, Cit-e-Net, gblist subscribers could also elect to discontinue receiving “gblist updates.

The Town denied Livson’s FOIL request, advising her that "[t]here is neither a print or extract function on the software that can reasonably create a list of email addresses." 

Subsequently Livson learned that Cit-e-Net could provide the Town with a digital copy of the gblist upon receiving such a request from the Town. She then filed an administrative appeal challenging  the denial of her FOIL request by the Town. The Town's Board of Supervisors denied Livson’s appeal and she commenced a CPLR Article 78 proceeding against the Town, the Town Clerk, and the Town Board challenging the Town’s denial of her administrative appeal.

The Supreme Court granted Livson’s petition and directed the Town "to disclose, in electronic form, the names and email addresses of subscribers of the gblist." The court, however, said the gblist could not be reproduced, redistributed or circulated nor could the information of the gblist be used for solicitation, fund-raising or any commercial purpose." The Town appealed Supreme Court’s ruling.

Addressing the Town’s appeal, the Appellate Division noted that:

1. The Freedom of Information Law was enacted "to promote open government and public accountability," and "imposes a broad duty on government to make its records available to the public."

2. The statutorily stated policy or philosophy underlying FOIL is to promote “[t]he people's right to know the process of governmental decision-making and to review the documents and statistics leading to determinations."

3. Records held by third parties on behalf of a government agency are "records" which are presumptively subject to disclosure pursuant to a FOIL request and a government agency's not having physical possession of such records is immaterial with respect to honoring such a request.*

4. The agency denying access to the target[s] of a FOIL request has the burden of demonstrating that an exemption, in whole or in part, applies to the information sought by FOIL request.

5. The statutory exemptions from disclosure are to be "narrowly construed" so as to ensure maximum public access to the government documents requested and the agency must demonstrate that the requested material "fall[s] squarely within a FOIL exemption."

In the words of the Appellate Division, "[T]he agency does not have carte blanche to withhold any information it pleases," and it must "articulate particularized and specific justification" for the nondisclosure at issue. "Conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed."

In addition, the court pointed out that an agency "may deny access to records" where disclosure "would constitute an unwarranted invasion of personal privacy under the provisions of Public Officers Law §89(2)(b)] [and] [W]here none of the [enumerated exemptions under Public Officers Law §89(2)(b) are] applicable, a court must decide whether any invasion of privacy . . . is ‘unwarranted’ by balancing the privacy interests at stake against the public interest in disclosure of the information."

In denying the Town’s appeal, the Appellate Division said that it had not articulated the applicability of any enumerated exemptions under Public Officers Law § 89(2)(b), nor did the Town show that the privacy interests at stake outweigh the public interest in disclosure of the information.

In addition, said the court, Livson sought "to further the public discourse on matters of public importance and concern in the Town" by obtaining the names and email addresses of those persons who subscribe to the gblist. Such persons have willingly divulged that information to the Town so that they may receive news and information, in electronic form, on matters of public concern in the Town and are free to delete their name and email address from the gblist.

As to the privacy issue, the Appellate Division pointed out that the Town did not articulate any privacy interest that would be at stake in the disclosure of the gblist and its contention that disclosure of would make gblist subscribers more susceptible to phishing, spamming, and other email scams was speculative. The Appellate Division also pointed out that disclosure of the information on the gblist would not make the gblist subscribers more susceptible to such acts than they ordinarily would be.

As NYPPL has noted in a footnote in a number of earlier summaries of FOIL decisions by the courts, “The release of some public records is limited by statute. i.e., Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality. Otherwise, submitting a formal FOIL request is not a condition precedent to obtaining public records where access is not barred by statute.

Submitting a formal FOIL request becomes necessary only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record[s] requested. In such cases the individual or organization must file a formal FOIL request in order to seek to obtain the information.

Also note that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the statutory exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, applicable to the information or records demanded.” As the Court of Appeals opined in Capital Newspapers v Burns, 67 N.Y.2d 562, “while an agency is permitted to restrict access to those records falling within the statutory exemptions, the language of the exemption provision contains permissive rather than mandatory language, and it is within the agency's discretion to disclose such records, with or without identifying details, if it so chooses.” 

* Public Officers Law §87.5(b), addressing access to agency records, provides: 5(b) No agency shall enter into or renew a contract for the creation or maintenance of records if such contract impairs the right of the public to inspect or copy the agency's records. 

The decision is posted on the Internet at:

Monday, July 25, 2016

A fire district or municipal corporation may file an application for disability retirement on behalf of a firefighter receiving General Municipal Law §207-a.1 benefits


A fire district or municipal corporation may file an application for disability retirement on behalf of a firefighter receiving General Municipal Law §207-a.1 benefits
City of Lackawanna v Nitido, 2016 NY Slip Op 05220, Appellate Division, Third Department

The City of Lackawanna filed an accidental disability retirement application* on behalf of Kenneth A. Drozdowski, a firefighter employed by the City, after deciding that Drozdowski was permanently disabled as a result of a number of injuries sustained in various incidents during the course of his duties as a firefighter.

The New York State Policemen's and Firemen's Retirement System denied Lackawanna’s application and the City appealed. An administrative hearing officer concluded that the incidents giving rise to the City’s application did not constitute accidents within the meaning of the Retirement and Social Security Law [RSSL] and denied its application. The Hearing Officer's, which determination was sustained by the Deputy Comptroller. Lackawanna next filed a CPLR Article 78 petition challenging the Deputy Comptroller’s decision.

Citing Matter of Kenny v DiNapoli, 11 NY3d 873, the Appellate Division confirm the Deputy Comptroller’s ruling, explaining that “[i]n order for an incident to constitute an accident for purposes of the Retirement and Social Security Law, it must be "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact; and citing Matter of Schultz v DiNapoli, 137 AD3d 1454, the Appellate Division observed that “[t]he injury must not result from an activity undertaken in the performance of ordinary employment duties and must not be an inherent risk of such job duties.”

With respect to the first event submitted by Lackawanna in support of its application, at the hearing Drozdowski had testified that he had responded to a structure fire where an obese individual was trapped on the second floor. Given the urgent situation and in order to evacuate the individual, Drozdowski, with the assistance of other firefighters, strapped the individual to a spine board and, because the individual was too large to fit through the doorway horizontally, attempted to maneuver the individual through the doorway in a vertical position and down the stairs.

When the other firefighters lost their grip on the board, Drozdowski was left alone holding the board and was injured when he slid down the stairs while trying to control the momentum of the individual's weight and prevent the individual from sustaining further injury.

The Appellate Division ruled that the record established that “evacuating occupants of all sizes” is an ordinary part of Drozdowski's duties as a firefighter and thus substantial evidence supports the Deputy Comptroller's conclusion that this incident was not an accident.”

Regarding a second incident described in support of the City’s application, Drozdowski had testified that he had tripped on a three-inch concrete step in the fire station and hit his head on a desk, resulting in an injury to his neck. Although Drozdowski noted that the floor had just been mopped and that he had walked through some puddles on the floor just before falling, the Appellate Division said that “[n]o defective condition in the step was alleged, and Drozdowski acknowledged that he was aware of the step and had, in fact, tripped on it before.”

Under these circumstances, said the court, substantial evidence supports the Deputy Comptroller's conclusion that the injuries sustained in this incident resulted from Drozdowski's own misstep or inattention, which did not constitute an accident for purposes of the Retirement and Social Security Law.”

Considering a third incident the City advanced in support of the application it had filed on behalf of Drozdowski -- an injury sustained by Drozdowski in the course of his responding to an emergency medical service call involving an “obese, intoxicated and combative” individual -- the Appellate Division concluded that the record established that Drozdowski was performing his normal his duties when he sustained those injuries, which arose when in while providing emergency medical service to an individual and that he was aware of the combative nature of the individual. Thus, said the court, substantial evidence supported the Deputy Comptroller's conclusion that the incident did not constitute an accident within the meaning of the RSSL.

The Appellate Division decided that the City “did not sustain its burden of demonstrating that the events producing the injuries resulted from accidents” and sustained the Deputy Comptroller's determination.**

* Subdivision 2 of §207-a of the General Municipal Law provides, provides that in the event a firefighter receiving §207-a.1 benefits does not file an application for accidental disability retirement or line of duty disability retirement benefits, the fire district or municipal corporation employing the firefighter may file such an application of behalf of the firefighter. If such an application is denied, the fire district or municipal corporation employing the firefighter may appeal that determination. A similar provision with respect a police officer as defined in Subdivision 1 of General Municipal Law §207-c is set out in Subdivision 2 of §207-c of the Retirement and Social Security Law.

** The decision is silent as to whether Drozdowski was found eligible for line of duty disability retirement.

The decision is posted on the Internet at:

The Disability Benefits E-book – 2016 Edition: This 810 page e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://section207.blogspot.com/
________________________  

Saturday, July 23, 2016

Selected reports issued by the Office of the State Comptroller during the week ending July 23, 2016



Selected reports issued by the Office of the State Comptroller during the week ending July 23, 2016
Source: Office of the State Comptroller

Click on text highlighted in color to access the entire report 

Tax Cap Remains Below One Percent for 2017
Property tax levy growth for local governments will be capped at 0.68 percent for 2017, decreasing slightly from 2016, when it was 0.73 percent, according to State Comptroller Thomas P. DiNapoli. The latest inflation figure affects the tax cap calculations for local governments that operate on a calendar-based fiscal year (Jan 1. – Dec. 31) – which includes all counties, towns, fire districts, 44 cities and 10 villages.

Mid-Hudson Region Shows Economic Strength Following Recession

New York State Comptroller DiNapoli released an economic profile of the Mid-Hudson region. The region’s proximity to New York City and quality transportation systems continue to drive economic activity, but the high costs of housing and doing business could impede future growth.

State Faces Potential Budget Gaps

New York state faces potential budget gaps in future years, according to an analysis of the state’s Financial Plan released by State Comptroller Thomas P. DiNapoli. The budget gaps result from spending increases and tax reductions enacted this year, and the use of temporary resources to pay for recurring costs.

State Tax Collections Dip

Tax collections totaling $19.8 billion fell short of projections for New York state in the first quarter of the state’s fiscal year, a decline of $797.6 million, or 3.9 percent, from the same period last year and $454.1 million below projections, according to the June state cash report issued by State Comptroller Thomas P. DiNapoli.


New I-9 Forms for 2016 still unavailable



New I-9 Forms for 2016 still unavailable

The current version of Form I-9 expired on March 31, 2016, but United States Citizenship and Immigration Services (USCIS) has instructed employers to continue using it until a new revision is approved. USCIS has also proposed changes to the I-9 procedures intended to streamline processing I-9 Forms and reduce errors. 

From the LawBlogs – Week ending July 16, 2016


From the LawBlogs – Week ending July 16, 2016

[Internet links highlighted in color]

Posted by Justia

Administrative appeal vacated because the administrative agencies failed to recognized that the employee’s personnel record considered was internally contradictory
Grover v. Office of Pers. Mgmt., U.S. Court of Appeals for the Federal Circuit Docket: 15-3160

Grover worked for many years for the Customs and Border Protection service and participated in the Civil Service Retirement System, 5 U.S.C. 8331–8351. He retired in 2008 and applied for a retirement annuity. By statute, the annuity must reflect the highest average annual pay based on three consecutive years of specified service, and for a customs officer like Grover in the years in question, the calculation must include overtime pay up to $17,500. The Office of Personnel Management (OPM), in calculating Grover’s pay, did not include anything close to $17,500 in overtime pay, although Grover asserted that he received more than $17,500 in overtime pay in those years. The Merit Systems Protection Board upheld OPM’s calculation, which relied on a particular official record. The Federal Circuit vacated. Neither OPM nor the Board recognized that the record is internally contradictory about what overtime pay Grover received, so neither sought further information, such as pay stubs, that might definitively resolve the uncertainty. The regulation does not permit the Board to affirm OPM’s calculation without resolving the amount-of-overtime-pay factual issue.

Application for disability retirement based on alleged depression, anxiety, and panic attacks rejected
Rossignol v. Maine Pub. Employees Ret. Sys., Court: Maine Supreme Judicial Court Citation: 2016 ME 115

After Robert Rossignol was notified that his teaching contract would not be renewed, Rossignol applied to the Maine Public Employees Retirement System (MPERS) for disability retirement benefits. Rossignol alleged that he suffered from depression, anxiety, and panic attacks, which made it impossible for him to perform the duties of his position. The Executive Director’s designee denied Rossignol’s application. The MPERS Board of Trustees affirmed the denial of disability retirement benefits. The Supreme Court affirmed, holding that Rossignol failed to demonstrate that, under the governing statutory standard, he was entitled to disability retirement benefits.

Group prayer while on duty
Marrero-Mendez v. Calixto-Rodriguez, U.S. Court of Appeals for the First Circuit , Docket: 14-2030

Plaintiff, a Puerto Rico Police Department law enforcement officer, filed a complaint alleging that Defendants, his superior officers, violated the Establishment Clause by holding a group prayer while on duty and punishing Plaintiff for his non-conformance. Defendants moved to dismiss the complaint on the grounds that the complaint failed to allege plausibly a constitutional violation, and invoking qualified immunity. The district court denied the motion on both grounds. Appellants filed this interlocutory appeal to challenge the court’s denial of qualified immunity. The First Circuit affirmed, holding that the district court did not err in rejecting Defendants’ qualified immunity defense.



Posted by Employment Law News [WK WorkDay]

By Ronald Miller, J.D.

The Labor-Management Reporting and Disclosure Act (LMRDA) contains an implied cause of action for a union to bring a lawsuit for breach of the fiduciary duties by an officer or other agents of the union, ruled a divided D.C. Circuit. Consequently, the appeals court reversed a district court’s order dismissing the union’s claims under Section 501 and state law for lack of subject matter jurisdiction. Judge Tatel not only wrote the majority opinion, he also wrote a separate concurring opinion. Additionally, Judge Millett wrote a separate concurring opinion, while Judge Kavanaugh wrote a separate dissenting opinion (International Union, Security, Police and Fire Professionals of America v. Faye, July 15, 2016, Tatel, D.).

The union filed suit against the district director of a union office, alleging that while it employed him, he breached his fiduciary duties in a number of ways, including joining a rival union. The union also asserted claims under state law. According to the union, the employee attempted to establish a rival union and misused the union’s resources to achieve that goal. A district court concluded that the LMRDA provides a cause of action only to individual union members, not to the union itself, and that the LMRA provides no cause of action to a union seeking to sue a non-member employee. The district court further concluded that because neither federal statute provided the union with a cause of action, it lacked federal question jurisdiction over the case. Additionally, the district court ruled that it had “no basis to exercise supplemental jurisdiction over plaintiff’s state common law claims.”

On appeal, the union contended that the LMRDA gives it a cause of action and that the district court also had supplemental jurisdiction over its state law claims. This case presents the issue whether LMRDA Section 501 provides a union with a federal cause of action against its agent for breach of a fiduciary duty owed to the union.

Nature of inquiry. Before proceeding to the merits, the D.C. Circuit observed that, like the district court, earlier decisions tended to speak of the inquiry in jurisdictional terms.

However, in Arbaugh v. Y&H Corp., the Supreme Court made clear that the question whether the plaintiff has a cause of action is distinct from the question whether a district court has subject matter jurisdiction. Here, the union’s claim was at least “arguable,” regardless of whether it was “valid.” Thus, the court’s inquiry goes to the merits, not jurisdiction, which existed under the general federal question jurisdiction statute.

Implied cause of action. In determining whether an implied cause of action exists, “[t]he judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy. Statutory intent on this latter point is determinative.” Congress enacted the LMRDA in 1959 in response to various union corruption scandals. The statute gives union members an express federal cause of action against a union agent for breach of the fiduciary duties set forth in Section 501(a). Union members may bring such a suit “for the benefit of the [union],” provided that they first satisfy certain procedural requirements. However, central to this case nothing in the statute expressly gives the union itself such a cause of action.

In assessing whether a union has an implied cause of action under Section 501, the appeals court, citing Weaver v. United Mine Workers of America, observed that it was not writing on a clean slate. Weaver held that where union members have properly sued under Section 501, the union itself may take control of the suit and displace the union members. In this case, the district court distinguished Weaver on the ground that the opinion “did not address a union’s right to initiate suit on its own behalf.” Here, the appeals court noted that neither the district court, nor the defendant offered any persuasive justification for reading the statute to require that a union “be accorded [the] right” to take over a suit that “since its commencement has in reality been its own,” but not to allow the union to simply bring “its own” suit in the first instance.

Accordingly, the D.C. Circuit concluded that the reasoning necessary to the decision in Weaver compels the conclusion that a union may indeed bring a Section 501 suit in the first instance. Moreover, because the union’s Section 501 claim was properly before the district court, supplemental jurisdiction existed for the union’s state law claims.

Concurrence. Writing separately, Judge Tatel argued that even absent Weaver, he would conclude that Section 501 gives unions a cause of action. In his view, the statute’s text and structure revealed Congress’s intent both to create federal rights and to allow unions to vindicate those rights in federal court. Moreover, Tatel argued that the defendant’s reading of the statute becomes even less tenable when the court’s interpretation of Section 501 in Weaver is layered on top of it. The defendant’s position would suggest that the union has no ability to bring a federal suit in the first instance, but could displace its members and proceed to litigate the members’ suit against its agents in federal court.

In his own concurring opinion, Judge Millett agreed with the result in Weaver, and wrote separately to explain further his conviction that Weaver controls notwithstanding the arguments made in the dissenting opinion, and yet to acknowledge the force of the arguments against Weaver’s correctness, as well as to note the potential constitutional problems raised by the issue. Judge Millett observed that if the court were writing on a clean slate, the relevant indicia of statutory intent would weigh heavily against implying a right of action for unions to prosecute lawsuits under Section 501. However, he pointed out that unless the union can sue, the enforcement scheme that Congress devised could potentially run into some constitutional concerns.

Dissent. In a dissenting opinion, Judge Kavanaugh argued that a union did not possess a federal cause of action to sue their officers for breaches of fiduciary duties. According to the dissent, the decision in Weaver did not control the outcome of this case. The dissent pointed out that subsection (b) of Section 501, by its terms, does not give a union—as opposed to union members—a cause of action. Further, Judge Kavanaugh observed that that statutory silence had precipitated a circuit split, with the Seventh and Eleventh Circuits holding that a union has an implied cause of action, while the Ninth Circuit has held that unions do not have an implied cause of action under Section 501. Arguing that Section 501 did not create a cause of action for unions, the dissent urged that the judgment of the district court dismissing the union’s action should be affirmed.

Thursday, July 21, 2016

Membership in the NYS Employees’ Retirement System for 10 years is not necessarily the same as the member having 10 years of member service credit


Membership in the NYS Employees’ Retirement System for 10 years is not necessarily the same as the member having 10 years of member service credit
Caetano v DiNapoli, 2016 NY Slip Op 05222, Appellate Division, Third Department

Sharon Caetano, an employee of the Erie County Board of Elections, experienced a “slip and fall” while at work. Ultimately she filed an application for disability retirement benefits with New York State and Local Employees' Retirement System [ERS] alleging that she was permanently incapacitated from performing her job duties due to injuries she suffered as the result of the fall she experienced while at work.

ERS denied Caetano’s application on the grounds that [1] she had less than 10 years of member service credit in ERS and [2] that she had not established that her falling while at work constituted an accident within the meaning of the Retirement and Social Security Law [RSSL].

Caetano then appealed ERS' denial of her application for disability retirement. Following an administrative hearing, the Hearing Officer upheld ERS’ denial of Caetano’s application for disability retirement benefits. The Comptroller adopted the Hearing Officer's decision, and Caetano filed a CPLR Article 78 petition challenging the Comptroller’s decision.

The Appellate Division affirmed the Comptroller’s ruling, explaining that RSSL §605[b][1]) provides that a member of ERS is eligible for disability retirement benefits where the disability was not job related if the member has "at least [10] years of total service credit."

In contrast, RSSL §605[b][3] provides that a member of ERS with less than 10 years of members service credit is eligible for accidental disability retirement benefits if the member can show that his or her disability was "the natural and proximate result of an accident not caused by his [or her] own willful negligence sustained in the performance of his [or her] duties."

Although Caetano alleged that the Comptroller erred in calculating her member service credit, the court said that "The Comptroller is charged with the responsibility of determining service credits for retirement purposes and his determination will be upheld if rational and supported by substantial evidence." Further, said the Appellate Division, Caetano has the burden of establishing an entitlement to any additional member service credit she may claim greater than that determined by the Comptroller.

While the Comptroller ruled that Caetano had only attained 9.95 years of member service credit, Caetano contended that her yearly “service credits in her records” were inaccurate. She claimed that the Comptroller did not “take into account time that she was out of work and being paid workers' compensation benefits” in lieu of her salary based her belief that Erie County credited her with that time for retirement purposes.*

However, said the court, Erie County employment records do not reflect such “credit” and she failed to present any authority supporting her contention.

Considering Caetano’s employment records, the Appellate Division concluded that the Comptroller's determination that she had not attained 10 years of member service credit at the time she applied for disability retirement was rational and supported by substantial evidence. Further, said the court, Caetano did not satisfy her burden of establishing that she was entitled to additional service credit.

To be eligible for accidental disability retirement benefits, Caetano was required to demonstrate that her disability was the natural and proximate result of a work-related accident. For purposes of the RSSL, an accident is "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" and "[A]n injury is not accidental in nature if it occurs as the result of an applicant's routine employment duties and does not involve an unexpected event."

Based on the record, the Comptroller determined that Caetano’s injuries were sustained as the result of her own misstep or inattention, and not because of an accident within the meaning of the RSSL. As that determination was supported by substantial evidence, the Appellate Division declined to disturb it. 

* Typically an employee on workers' compensation leave pursuant to Civil Service Law §71 earns sick leave and similar credits only while the individual remains "on the payroll" of the employer as the result of the employee electing to use available leave credits, overtime credits or similar accruals to do so [see Andrews v State of New York, 138 AD3d 1297, summarized on NYPPL at: http://publicpersonnellaw.blogspot.com/2016/04/accruing-vacation-and-sick-leave.html ].

The decision is posted on the Internet at:

Wednesday, July 20, 2016

Educator challenges the abolition of positions and the assignment of her former teaching duties to other teachers


Educator challenges the abolition of positions and the assignment of her former teaching duties to other teachers
Decisions of the Commissioner of Education, Decision No. 16,917

Mary Farber-Peck challenged the Herkimer Central School District's Board of Education's decision to abolish the position in which she had been serving and assign the courses previously taught by her in that positition to other teachers in the school district.

Farber-Peck was initially appointed as a teacher of business and distributive education and subsequently granted tenure in the business education tenure area.*  The Board voted to abolish two positions in the business education tenure area. Presumably, Farber-Peck was one of the two least senior teachers in that tenure area. Accordingly, she was "excessed" and  her name was placed on a “preferred eligibility list.” as the result of the Board's action. 

Subsequently the Board assigned certain courses previously taught by Farber-Peck to three other teachers, Michelle Ploss, Kristin Smith and Glen Manning. 

Farber-Peck appealed the Board's action to the Commissioner of Education, alleging that the Board had “improperly abolished her position to circumvent her tenure and seniority rights.”  She also alleged that during the 2011-2012 school year, teachers were improperly assigned to teach certain business education courses, previously taught by her, outside of their respective certification areas. 

The District argued that  Farber-Peck has not met her burden of proving that it improperly abolished her position; that its assignment of certain courses previously taught by her to other teachers was permissible and that no new position has been created to which she has any clear legal right. 

The District also asserted that certain necessary parties were not joined in the action and thus Farber-Peck's appeal must be dismissed.

Clearly, a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such, which requires that the individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense.

Here, however, the Commissioner said that with respect to such "other parties" there is “no evidence that Ploss, Smith or Manning would be adversely affected should [Farber-Peck] prevail herein because such a result would impact only one course in their overall workload.” Further, said the Commissioner, Farber-Peck does not seek dismissal or reassignment of those teachers and there is no evidence that the employment status of those individuals would be adversely affected.  Accordingly, ruled the Commissioner, the three were not necessary parties and need not be joined as respondents and the appeal would not be dismissed on that procedural basis.

Turning to the merits of Farber-Peck’s appeal, the Commissioner said that a board of education may abolish and, or, consolidate positions for sound economic reasons, so long as the decision is not motivated by bad faith. Further, in an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief he or she requested and the burden of establishing the facts upon which he or she seeks relief.

The record before the Commissioner indicated that, at a budget information meeting, the Board discussed the difficult economic climate facing the District and indicated that it was necessary to make significant cuts in the school budget due to cost increases and revenue constraints, and potential staff reductions, including two business teacher positions, were discussed. 

Noting that Farber-Peck “does not claim otherwise in her petition,"  the Commissioner said that, on the record before her, Farber-Peck has not met her burden of established that Board acted in bad faith or was motivated to abolish positions for other than economic reasons and thus “there is no basis on which to conclude that [the Board] abolition of [Farber-Peck] position was improper."

In addition, the Commissioner observed that the record indicated that “no vacancy occurred and no new position was created; instead, [Farber-Peck’s] former teaching duties were redistributed … albeit to teachers who [Farber-Peck] asserts lack the proper certification."  Further, the District's interim superintendent of schools indicated that the District would not offer any courses that otherwise would have been assigned to Farber-Peck in the subsequent school year and that, consequently, Smith and Manning would not be assigned to teach those courses.** 

However, said the Commissioner, were the Board to subsequently creates a new position in the business education tenure area Farber-Peck “may, indeed, be entitled to such position by virtue of her place on the preferred eligible list of candidates.”  However, ruled the Commissioner, Farber-Peck had not demonstrated legal right to relief she requested -- an order that the Board create a new part-time position rather than a claim of a right to an appointment to a position the Board has created.

Accordingly, Commissioner dismissed Farber-Peck’s appeal.

* The Commissioner of Education noted that, pursuant to 8 NYCRR §30-1.8 (c)(4), Farber-Peck should have been appointed “to serve in a special subject tenure area co-extensive with her teaching certificate in business and distributive education.”

** See, also, Decisions of the Commissioner Number 13,433 in which the Commissioner cites Appeal of Chaney, 33 Ed Dept Rep 12; Young v. Board of Education, 41 AD2d 966, aff'd 35 NY2d 31, [distribution or reassignment of “duties” consistent with the principle of "fractionalization, i.e., the division and, or, consolidation of certain work duties formerly performed by incumbents of abolished and unfilled titles [See Jodre v Locust Val. Cent. School Dist., 2011 NY Slip Op 31076(U), [ Not officially reported].

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume55/d16917

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Tuesday, July 19, 2016

Seeking public records the custodian contends are exempt from disclosure within the meaning of the Freedom of Information Law


Seeking public records the custodian contends are exempt from disclosure within the meaning of the Freedom of Information Law
Spring v County of Monroe, 2016 NY Slip Op 05465, Appellate Division, Fourth Department

Todd Spring initiated an Article 78 proceeding seeking disclosure of approximately 200 documents, emails, memoranda, and reports pursuant to the Freedom of Information Law (FOIL). The Monroe County [County] custodian of the documents and records had declined to provide the material demanded, which were characterized as being “confidential records” and thus could be “exempted” under one or more of the exceptions permitted by the Freedom of Information Law.*

After conducting an in camera review of the records at issue, Supreme Court directed the County to provide Todd with several of the documents it claimed were “exempt” and County appealed the court’s decision.

The Appellate Division, notwithstanding its holding that Supreme Court erred in applying the “arbitrary and capricious standard of review” and instead should have determined whether the Records Appeal Officer's determination "was affected by an error of law,” elected to conduct a de novo review of the documents at issue.

Applying the appropriate standard with respect to the disputed documents in the “confidential record,” the Appellate Division concluded that:

1. E-mail correspondence between Spring and the "in-house" counsel for the County found in the confidential record at certain pages were exempt from FOIL disclosure as "counsel for the County represented Spring only in Spring's capacity as a County employee." Accordingly, only the County could waive the attorney-client privilege protecting the correspondence. The fact that Spring believed that he was the client was, said the court, “of no moment;”

2. E-mail correspondence found in the confidential record at certain pages between a County employee and counsel employed by the County were protected by attorney-client privilege;

3. A “draft informal dispute resolution [IDR]” request found in the confidential record at certain pages was exempt from FOIL disclosure inasmuch as it was protected by attorney-client privilege, by attorney work product privilege, and as inter-agency material pursuant to Public Officers Law §87(2)(g). The Appellate Division noted that draft IDR request "does not contain statistical or factual tabulations or data … or final agency policies or determinations but rather consisted “solely of . . . evaluations, recommendations and other subjective material and was therefore exempt from disclosure;"

4. Documents found in the confidential record at certain pages representing a "chronological explanation" of a County Human Resources investigation were exempt from disclosure by attorney-client privilege and under Public Officers Law §87(2)(g);

5. Documents found in the confidential record at certain pages were exempt from disclosure under Public Officers Law §87(2)(g) as those documents contained "opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making;" and

6. The hearing transcript found in the confidential record at certain pages constituted pre-decisional intra-agency material and was exempt from FOIL disclosure.

With respect to the remaining materials at issue, the Appellate Division said that it concluded that the County failed to show that the Freedom of Information Law permitted their exemption from disclosure.

* The release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise a FOIL request is not required as a condition precedent to obtaining public documents or records where access is not barred by statute. A FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the desired information or records. It should also be noted that other than such disclosure being prohibited by law, there is no bar to providing information pursuant to a FOIL request, or otherwise, that could otherwise be denied pursuant to one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part.

The decision is posted on the Internet at:


Monday, July 18, 2016

Determining if an incident qualifies as an accident for the purposes determining eligibility for accidental disability retirement benefits


Determining if an incident qualifies as an accident for the purposes determining eligibility for accidental disability retirement benefits 
Sica v DiNapoli, 2016 NY Slip Op 05420, Appellate Division, Third Department

An accident, for the purposes of the Retirement and Social Security Law [RSSL], is defined as “a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact”* that “must result from an activity that is not undertaken in the performance of ordinary job duties and that is not an inherent risk of such job duties.”**

Pat Sica, a firefighter with the City of Yonkers Fire Department for approximately 17 years, was injured when he was exposed to and inhaled carbon monoxide and cyanogen chloride, both colorless and odorless gases, while responding to an emergency at a supermarket. Subsequently Sica filed an application for accidental disability retirement benefits based upon, among other things, the supermarket incident.

The Retirement System denied Sica’s application on the ground that the supermarket incident did not constitute an accident within the meaning of RSSL §363. Sica appealed the System's decision and at the administrative hearing that followed he testified that in the course of his responding the medical emergency call from a local supermarket reporting an individual experiencing difficulty with breathing:

[1] he was directed to the walk-in freezer located at the back of the supermarket where he discovered two unconscious individuals:

[2] he provided cardiopulmonary resuscitation and breathing assistance to the unconscious victim inside the freezer until an ambulance crew arrived to assist;

[3] he had not smelled, heard, or saw anything that might have indicated that chemical gases or fumes were involved in the medical emergency; and

[4] he did not learn that chemical gases were present at the scene until he himself was transported to a hospital for medical evaluation.

The Hearing Officer concluded that the incident was an accident within the meaning of the RSSL as "[t]he combination of unforeseeable and exigent circumstances made it virtually impossible for [Sica] to recognize the danger." The Comptroller, however, ultimately sustained the initial denial of Sica's application for accidental disability retirement. Sica then commenced an Article 78 proceeding challenging the Comptroller's determination.

In analyzing Sica’s appeal of the Comptroller’s decision, the Appellate Division said:

[1] An applicant for accidental disability retirement benefits has the burden of establishing that the event producing the injury was an accident; and 

[2] The Comptroller's decision denying the application for accidental disability retirement benefits will be upheld where it is supported by substantial evidence. 

Here, however, the Appellate Division found that the Comptroller’s determination that the incident was not an accident for the purposes of eligibility for accidental disability retirement benefits was not supported by substantial evidence in the record before it.  

The court explained that it has "held that exposure to toxic fumes while fighting fires is an inherent risk of a firefighter's regular duties." In Sica’s situation, however, unlike its consideration of prior cases involving exposure to toxic gases or smoke, the Appellate Division noted that Sica was not responding to a fire that presented the inherent and foreseeable risk of inhaling toxic gases.

The record indicates that Sica “was neither aware that the air within the supermarket contained toxic chemical gases … nor did he have any information that could reasonably have led him to anticipate, expect or foresee the precise hazard when responding to the medical emergency at the supermarket.” 

In contrast, the Comptroller, in reversing the Hearing Officer’s determination, relied upon the job description for Sica’s position, which indicated that he was required to respond to medical emergencies and to be exposed to hazardous conditions such as fumes and toxic materials.

Relying on such a job description, said the court, “may wholly eviscerate accidental disability retirement protection for emergency responders in rescue situations,” explaining that “if a broadly written job description that requires the rescue of individuals in hazardous situations is allowed to replace a factual analysis of the particular circumstances of each incident, those who put themselves in harm's way may be left without recourse.”

Accordingly, the court opined, “Whether an incident is so ‘sudden, fortuitous . . ., unexpected [and] out of the ordinary’ … that it qualifies as an accident within the meaning of the [RSSL] remains a factual issue that should not be determined merely by reference to job descriptions.” 

Clearly the mischief in merely considering the job description is that emergency personnel will be rendered ineligible for accidental disability retirement in any rescue situation, without regard to how exigent, unexpected or unforeseeable the circumstances of their injury may be. This, said the court,  “cannot have been the Legislature's intent in establishing the accidental disability retirement program for rescue workers.”

The Appellate Division concluded that the Comptroller’s determination that Sica’s disability resulting from his exposure to carbon monoxide and cyanogen chloride while responding to a “medical emergency” did not constitute an accident within the meaning of Retirement and Social Security Law §363 was unsupported by substantial evidence in the record.

As the review of the administrative hearing and determination of Comptroller was limited to the question of whether substantial evidence in the record support such determination, the Appellate Division “declined to address in the first instance [the Comptroller’s] arguments regarding the presumption set forth by [the RSSL] §363-a or the issue of causation.”

The court, Justices McCarthy and Devine dissenting, annulled the Comptroller’s decision and remitted the matter to him “for further proceedings not inconsistent with this Court's decision.”

* See Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010

The decision is posted on the Internet at:
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