Applying the exemption from releasing documents and records to the public pursuant to a FOIL request

Applying the exemption from releasing documents and records to the public pursuant to a FOIL request

Mulgrew v Board of Educ. of the City School Dist. of the City of New York, 2011 NY Slip Op 06328, Appellate Division, First Department

Litigation involving demands for public documents or records pursuant to New York State’s Freedom of Information Law [FOIL] may result should the custodian of the document[s] or record[s] claim that the records or documents sought are covered by a FOIL exemption and elects not to release them on that basis.* 

In contrast, in this action a third party,  Michael Mulgrew, asked the court to prohibit the New York City School District, the custodian of the records or documents involved, from releasing “Teacher Data Reports that disclose teachers' names.”** 

Essentially Mulgrew contended that if a record or document was "eligible for exemption" pursuant to FOIL, the custodian of the record or document could neither release it nor provide it to an individual or entity demanding it.

While noting that “Public agency records are presumptively open for public inspection and copying," the Appellate Division focused on a collateral issue -- the burden of demonstrating the withholding of such material in reliance on a "FOIL exemption.”

The court said that the party "seeking an exemption from disclosure has the burden of proving entitlement to the exemption (Public Officers Law §89[5][e]," and concluded that the same criteria controlling the custodian of the documents or records claiming a FOIL exemption as the basis for rejecting the FOIL request applied with respect to Mulgrew in his seeking to withhold the documents or records pursuant to a FOIL exemption. The Appellate Division concluded that Mulgrew, as the party claiming the exemption, failed to sustain this burden.

Further, the court observed that the requested documents or reports did not fall under the exemption for personal privacy set out in Public Officers Law §87(2) (b).

Even though “privacy interests” are implicated, the Appellate Division ruled that the release of the information did not fall within one of the six examples of an "unwarranted invasion of personal privacy" set forth in Public Officers Law §89(2)(b).

Additionally, the court commented that “when balancing privacy interests at stake against the public interest in disclosure of the information. we conclude that the requested reports should be disclosed. Indeed, the reports concern information of a type that is of compelling interest to the public, namely, the proficiency of public employees in the performance of their job duties.” 

* N.B. The basic concept underlying FOIL is that all government documents and records, other than those having access thereto specifically limited or prohibited by statute, are to be made available to the public upon request. The custodian of the records or documents requested may elect, but is not required, to withhold those items that are otherwise within the ambit of the several exemptions permitted by FOIL otherwise consistent with law. As to the release of public records specifically limited by statute, examples include Education Law §1127 [Confidentiality of records] and §33.13 of the Mental Hygiene Law [Clinical records, confidentiality]. 

** Assuming, but not conceding, that a third has standing to bring a Mulgrew–type action,  the decision implies that such an entity could, in effect, override the custodian's decision not to avail itself of a FOIL exemption that it might otherwise trigger with the end result being that the entity, were it to prevail, could deny public access to the public record or document in question notwithstanding the custodian's discretionary decision to the contrary, thereby frustrating the basic concept underlying FOIL. 

 

Determining eligibility for representation and indemnification of public employees being sued

Determining eligibility for representation and indemnification of public employees being sued

Salino v Cimino, 1 N.Y.3d 166

Public Officers Law Sections 17 [state officers and employees] and 18 [municipal employees] and other local laws provide for the representation and, if found liable, the indemnification, of officers and employees of the jurisdiction who are being sued -- a significant benefit to such individuals. Key to claiming such a benefit, however, is that the individual is being sued as a result of his or her performing his or her official duties, as the Salino case demonstrates.

Suffolk County police officer Gary Salino was served with the summons and complaint in a Federal action [Corey Kay and Winfield Properties, Ltd. v County of Suffolk et al, Civil Action No. 00-1161] in both his personal and his official capacities.

Suffolk County Attorney Robert J. Cimino denied Salino's request for representation by the County in the Federal action after he determined that Salino “[was] not acting within the scope of [his] public duties or employment in connection with the incidents which form the basis for [the Federal complaint].” Salino sued, contending that he was entitled to such representation pursuant to the Suffolk County Code Section 35-3 (as amended by Local Law 6-1985).*

Justice Berler, citing the Appellate Division decision in Bestafka v Suffolk County, 121 AD2d 670, observed that in Bestafka the Appellate Division said that “we interpret Local Laws, 1985, No. 6(3)(a) of Suffolk County as providing that in all actions against county employees, the initial determination of whether the county will provide a defense is to be made by the County Attorney on the basis of whether or not the employee's acts giving rise to the suit were 'within the scope of his public employment.'“

Justice Berler then noted that the County Attorney's determination may only be judicially set aside if it is found to be arbitrary and capricious.

The court sustained the County Attorney's decision, commenting that a report by the Suffolk County Police Department's Internal Affairs Bureau of its investigation into complaints filed by Kay alleging false arrest and improper performance by both Salino and his co-defendant in the Federal action states that “[Salino's] part in the arrest of Kay came about as a result of [his] personal interest in real estate activities engaged in by Kay and his associates.”

Concluding that Cimino's decision was neither arbitrary nor capricious, the court dismissed Salino's petition.

The Court of Appeals agreed, stating: Here, the factual record supports the County Attorney's determination that petitioner's alleged acts of wrongdoing against Kay were the consequence of his private interest as a property owner, not his public responsibility as a police officer. That he was acting to protect and advance his private self-interest is demonstrated, for example, by his individual FOIL requests, by his statements submitted as a long-time community member, not as a police officer, in support of criminal charges against Kay, and by the proceedings in his name challenging Kay's use of the property. Plainly, the County Attorney's determination denying him a defense was neither arbitrary nor capricious.

* The relevant section of the County Code states that “the County shall provide for the defense of the employee in any civil action or proceedings in any state or federal court or administrative agency arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the employee was acting or in good faith purporting to act, within the scope of his public employment or duties ... [and] [t]he determination of an issue of whether or not an employee was acting within the scope of his public employment or duties at the time ... shall be made in the first instance by the County Attorney.”

An arbitration award may be confirmed despite the non-appearance of a party in an Article 75 proceeding

An arbitration award may be confirmed despite the non-appearance of a party in an Article 75 proceeding

Saunders v City of New York, 283 AD2d 213

The lesson of the Saunders case is that if a party wishes to oppose an Article 75 motion to confirm an arbitration award, it had better appear before the court or it will run the risk of being the target of a default judgment.

A Supreme Court justice confirmed an arbitration award in favor of Lee Saunders, requiring the City of New York to pay him $15,000 in severance pay. The award was confirmed as a result of “default” after the City failed to appear at the Article 75 proceeding to object.

The City's motion to vacate the award was denied by Supreme Court and the City appealed. The Appellate Division affirmed the lower court's action, noting that the City's motion to vacate its default was properly denied in view of the City's failure to set forth a reasonable excuse for its repeated failure to appear and provide any meritorious defense to the courts confirming the arbitration award in Saunder's favor.

According to the ruling, the City did not appear at four scheduled court dates. Despite “its attorney's personal assurances to the court that there would be no default on the fifth court date,” marked final by the court, the City again failed to appear on that occasion as well.

This conduct, said the Appellate Division, “evincing such a complete lack of regard for the court and the legal process,” is not excusable.

In addition, said the court, “it is plain that [City] has no meritorious defense to confirmation of the subject arbitration award,” commenting that the arbitrator's award of $15,000 in severance pay in accordance with the terms of a severance incentive program agreement is supported by the record.

In any event, an arbitrator's award “will not be vacated even though ... his interpretation of the agreement misconstrues or disregards its plain meaning or misapplies substantive rules of law, unless it is violative of a strong public policy, or is totally irrational, or exceeds a specifically enumerated limitation on his power.” None of these elements, said the court, were relevant in this case.

Appointment as a coach

Appointment as a coach

Decisions of the Commissioner of Education, 14,504

Rita Magee was employed by the Coxsackie-Athens Central School District as a certified physical education teacher. Magee applied for a vacant field hockey coaching position in the district. The district selected another individual, Donald Daoust, for the position.

Contending that Daoust “has neither a New York State teaching certificate nor a temporary coaching license,” Magee filed an appeal challenging the district's action with the Commissioner of Education.

Although the Commissioner dismissed Magee's appeal as moot -- the field hockey season had ended before he had an opportunity to consider the matter -- he commented that:

1. A school district may employ an uncertified individual as a coach only when a certified physical education teacher or certified teacher with coaching qualifications and experience is unavailable; and

2. An uncertified individual may not undertake his or her coaching responsibilities until he or she has actually received a temporary license.

The decision specifically noted that “[t]he mere application for that license by the district does not qualify the prospective coach for his or her duties.”

New York State's Marriage Equality Act

New York State's Marriage Equality Act

Source: New York State Department of Civil Service GENERAL INFORMATION BULLETIN No. 11-04

On August 25, 2011, Acting Commissioner Patricia A. Hite distributed the New York State Department of Civil Service"s GENERAL INFORMATION BULLETIN No. 11-04 to all department and agency human resource personnel and affirmative action officers; and agency counsels.

The text of Bulletin #11-04 is set out below:

“As you are aware, the Marriage Equality Act, signed by Governor Cuomo, became effective July 24, 2011. The Act amends the Domestic Relations Law to provide that a marriage that is otherwise valid shall be valid in New York regardless of whether the parties to the marriage are of the same or different sex. No State government employee shall be treated differently with respect to the rights, benefits, privileges, protections or responsibilities relating to marriage based upon their spouse being of the same sex or a different sex.

“Since April 2007, the Department has extended recognition to same-sex spouses in legal marriages from other jurisdictions for purposes of spousal benefits under NYSHIP. Additionally, in light of several court decisions and consistent with State policy, the Department conducted a review of state statutes, policy statements and regulations to ensure that terms such as "spouse", "husband" and "wife" are construed in a manner that encompasses legally executed marriages between same-sex couples. With the enactment of the Marriage Equality Act, individuals of the same sex may be lawfully married and may not lawfully be denied any State government right, benefit, protection or privilege. If you are aware of any policy or regulation relating to employment with the State which continues a distinction based upon whether parties to a marriage are of the same or a different sex, please bring it to the attention of the Department immediately.

“If you have any questions concerning health benefits for same sex spouses, please contact Mary Frye, Assistant Director of the Employee Benefits Division of the Department of Civil Service, at (518) 485-1771. 

"For any other employment related questions or concerns, please call Mark Worden in Counsel's Office of the Department of Civil Service at (518) 457-2624.”

Destruction of records that may be relevant in pending litigation

Destruction of records that may be relevant in pending litigation

Byrnie v Town of Cromwell Board of Education, CA2, 243 F.3d 93

EEOC regulation implementing Title VII [42 USC 2000e-8(c)] requires “every employer ... subject to this subchapter” to “(1) make and keep such records relevant to the determinations of whether unlawful employment practices have been or are being committed, [and] (2) preserve such records for [two years].” As the Byrnie decision demonstrates, an employer's failure to retain these records for the minimum period required may become a critical element in the course of litigation.

Judge Rosemary S. Pooler said that “where, as here, a party has violated an EEOC record-retention regulation, a violation of that regulation can amount to a breach of duty necessary to justify a spoliation inference in an employment discrimination action.” *

64-year-old Robert F. Byrnie claimed that the district rejected him for part-time employment as an art teacher because of his age and gender. He sued, alleging violations of Title VII of the 1964 Civil Rights Act, the Age Discrimination in Employment Act, and Title IX of the 1972 Education Amendments.

Although the district court dismissed his claims, the Circuit Court of Appeals reversed part of the lower courts ruling as inappropriate under the circumstances.

According to the court, Byrnie “easily” established a prima facie case of age discrimination. Judge Pooler commenting that while the job was given to an applicant who was 42 years of age -- a person in the “protected class” set out in the Age Discrimination in Employment Act, “the fact that the replacement is substantially younger than [Byrnie] is a more valuable indicator of age discrimination than whether or not the replacement was over 40.”

Since “the [district's] justification for not hiring Byrnie, on its face, raises credibility problems,” -- he had been a substitute at Cromwell for five years and was often asked to take over classes for extended periods. This, coupled, with the destruction of records required to be retained by EEOC regulations, indicates that the district court was incorrect in granting the district's motion for summary judgment dismissing Byrnie's age discrimination complaint.

The decisions states that “[t]he credibility of the Search Committee is not helped by the fact that it needed to relax the educational requirements of the position in order for [the successful candidate] to survive” initial screenings of applications filed by interested candidates for the position by the district, “let alone be selected as the most deserving of an interview.” In addition, courts have recognized that an employer's disregard or misjudgment of a plaintiff's job qualifications may undermine the credibility of an employer's stated justification for an employment decision.

Spoliation, said the court, “can support an inference that the evidence would have been unfavorable to the party responsible for its destruction” especially when federal regulations required the employment-related documents destroyed be retained for two years.

The reasons underlying the adoption of such an inference:

1. It serves to deter parties from destroying evidence;

2. It places the risk of an erroneous evaluation of the content of the destroyed evidence on the party responsible for its destruction; and

3. It restores the party harmed by the loss of evidence potentially helpful to its case to where the party would have been in the absence of spoliation.

The ruling also commented that the district did not claim that the records had been accidentally destroyed -- they were disposed in compliance with its policy of destroying such records soon after the hiring process was completed. This, said the court, constituted evidence “of intentional destruction sufficient to show a culpable state of mind on Cromwell's part.”

The lesson here: retain all records for the minimum period required by law, and longer if litigation is pending.

* Spoliation is the destruction or significant alteration of evidence. Courts usually view such destruction as evidence that the records that are destroyed contain material that would not be helpful to the party responsible for the spoliation.

Dissatisfaction with work schedules does not equal lack-of-work

Dissatisfaction with work schedules does not equal lack-of-work

Blankenship v Comm. of Labor, 282 AD2d 861

Sometimes a public employer finds it necessary to hire a substitute to cover for an employee who is absent due to illness. This was the case when a school district hired Linda J. Blankenship as a full-time [eight hours per day] per diem substitute cleaner to cover for a full-time employee who was on disability leave.

When the employee returned from disability leave, Blankenship's workday was adjusted in accordance with the employer's need to cover positions because of vacations or other absences of permanent employees. Essentially Blankenship was scheduled to work full-time during the summer due to vacation schedules. When the school year resumed her hours were reduced to four hours a day.

Dissatisfied with the change in her work schedule, Blankenship left the district and filed a claim for unemployment insurance benefits. She indicated that “lack of work” was the reason for her leaving the district's employ. The Unemployment Insurance Appeals Board rejected Blakenship's claim for unemployment insurance benefits on the ground that she voluntarily left her employment without good cause.

The Appellate Division sustained the Board's finding that Blankenship's “dissatisfaction with her reduced hours in accordance with the needs of the school district did not constitute good cause for leaving her employment” as supported by substantial evidence.

In addition, the court approved the Board's ordering the “recoverable overpayment of benefits.”

Declarations of an agent not always deemed an admission of the employer in the course of litigation

Declarations of an agent not always deemed an admission of the employer in the course of litigation

Simpson v NYC Transit Authority, 1st Dept., 283 AD2d 419

Suppose a former employee is called to testify against his or her former employer as a witness in an action brought by another individual. Is such testimony to be considered an “admission” by the former employee's employer? This was one of the issues in the Simpson case.

A jury awarded Simpson $250,000 after finding the NYC Transit Authority guilty of employment discrimination in violation of New York State's Executive Law Section 296 and Administrative Code of the City of New York Section 8-502. The Authority appealed.

It seems that the Transit Authority's former Director of Equal Employment Opportunity had testified on behalf of Simpson and, presumably, against the agency. Was the former Director's testimony to be deemed an admission to the extent that it was adverse to the Authority's interests?

Noting that the such testimony contained hearsay, Appellate Divisions said that in such situations a declaration made by an agent [here the former Director of Equal Employment Opportunity] without authority to speak for the principal [i.e., the Authority], even where the agent was authorized to act in the matter to which his declaration relates, does not fall within the “speaking agent” exception to the rule against hearsay and is not an admission that can be received in evidence against the principal.

Concluding that the testimony by the Authority's former Director was improperly admitted as admissions against the Authority, the Appellate Division ruled that this constituted reversible error and remanded the matter to Supreme Court for a new trial.

Applying the terms of disciplinary settlement agreement

Applying the terms of disciplinary settlement agreement

Perretti v NYC Transit Auth., 283 AD2d 737

The New York City Transit Authority challenged a decision by the Unemployment Insurance Appeals Board granting one of its employees, Frank P. Perretti, unemployment insurance benefits.

Perretti was suspended from his employment as a sheet metal mechanic following a “physical altercation with a fellow employee.”

Perretti filed a grievance and subsequently entered into a stipulation providing that Perretti would be suspension without pay for 30 days and would enroll in and cooperate with an employee assistance program.

When Perretti attempted to return to work at the end of his 30-day suspension without pay, the Authority sent him for a psychiatric evaluation.

Despite testing negative for alcohol or substance abuse, the Authority insisted that Perretti complete the employee assistance program without pay before he was permitted to return to work.

The Unemployment Insurance Appeal Board ruled that Perretti was disqualified from receiving unemployment insurance benefits during his 30-day suspension, but entitled to benefits during the time that he was enrolled in the alcohol treatment program. The Appellate Division agreed, finding no reason to disturb the Board's determination.

The court said that the record indicates that Perretti had signed the stipulation with the understanding that he could return to work immediately upon the conclusion of his suspension period. His attempts to return to work were frustrated by the employer's additional requirements that he undergo a psychiatric evaluation and alcohol counseling.

The Appellate Division pointed out that to the extent that the Authority asserts that Perretti was not ready, willing and able to work [see Labor Law Section 591(2)], “we note that any obstacle in this regard was caused by the [Authority's insistence that [Perretti] attend an alcohol counseling program despite his negative history of any alcohol abuse.”

The court's view disciplinary settlements in much the same fashion -- holding the employer to observe the specific terms agreed upon by the parties.

The classic example: Taylor v Cass, 505 NYS2d 929. Here a disciplinary settlement provided that Taylor would be subject to termination without any hearing if, in the opinion of his superior, his job performance was adversely affected by Taylor's consumption of alcohol. Taylor was subsequently terminated for sleeping on the job.

Although the employer claimed that the termination without a hearing was permitted under the terms of the disciplinary settlement agreement, the Appellate Division disagreed and directed Taylor's reinstatement to his position with back pay and benefits.

The court pointed out that the reason given for summarily terminating Taylor -- sleeping on the job -- was not authorized by the settlement agreement. The court ruled that Taylor could only be terminated without a hearing if he was found to have violated the specific reason set out in the settlement agreement: the performance of his duties was unsatisfactory because of his consumption of alcohol.

Disciplinary action follows teacher’s using inappropriate language in the classroom

Disciplinary action follows teacher’s using inappropriate language in the classroom

Bernstein v Norwhich City School District, 282 A.D.2d 70, motion for leave to appeal denied 96 N.Y.2d 937

In May 1998 Richard C. Bernstein, a tenured English teacher in the Norwich High School was charged with conduct unbecoming a teacher, insubordination, neglect of duty and incompetence for using what the district regarded as inappropriate verbiage in the course of teaching a lesson.

Bernstein's performance evaluation, which was introduced at the disciplinary hearing, indicated that High School Principal James Walters believed that Bernstein gave undue emphasis upon sexual imagery in his selected readings, classroom discussions and writing assignments.

Also noted in the evaluation was the fact that students had complained that Bernstein had a “tendency to compare them to characters from the books that they were reading in class whose sexual proclivities he had discussed.”

The evaluation concluded with a directive to “de-emphasize sexual aspects of the literary works that you deal with in your classroom.” It also stated that “[t]his concern has been voiced loud and clear during the course of the 1994-95 school year by parents and students. I will anticipate a different focus in your discussions during the 1995-96 school year.”

In the course of the May 1998 disciplinary action, students from Bernstein's eleventh grade English honors class testified that Bernstein used the words “penis” and “clitoris” when explaining a literary technique.

During a meeting with Principal James Walters Bernstein conceded he used these words in a discussion when introducing the topic of “phallogocentrism”, a theory of feminist literary criticism involving phallic symbolism, as a background to understanding and interpreting literature.

The Hearing Officer concluded that while the evidence and testimony did not support a finding of guilt on each of the specifications charged, a preponderance of the credible evidence did support the charge of conduct unbecoming a teacher and insubordination.

As to charges of insubordination, the Hearing Officer noted that Bernstein had been warned both orally and in writing by Walters that he should de-emphasize the sexual aspects of literary works and be cautious about classroom discussions that have sexual overtones.

The hearing officer indicated that while Bernstein's use these two words in a vacuum may well not have intended to lead to a discussion of sexual matters, he concluded that their use by Bernstein constituted poor judgment in light of his employment history. The hearing officer imposed a penalty of $3,000 fine and a letter of reprimand.

Bernstein appealed. A Supreme Court justice confirmed the hearing officer's determination as to guilt but found that it was error to impose both a letter of reprimand and a fine. A rehearing limited to the issue of penalty was ordered.

Bernstein then appealed to the Appellate Division solely on substantive findings of the hearing officer related to the disciplinary charges sustained by the lower court.

The Appellate Division said that “the cumulative testimony” given at the disciplinary hearing provided the requisite quantum of evidence to support the charges sustained by the hearing officers. Further, said the court, the fact that Bernstein was found guilty of fewer than all of the specifications alleged “is of no merit in challenging the determination rendered.”

Bernstein also argued that “his academic freedom must be protected because the information that he was presenting has material educational value.” The Appellate Division was not persuaded by this argument.

The court noted that in O'Connor v Sobol, 173 AD2d 74 [appeal dismissed, 80 NY2d 897], it had concluded that notwithstanding teachers' rights to choose methodology under principles of academic freedom, school officials must be permitted “to establish and apply their curriculum in such a way as to transmit community values” providing their discretion is “exercised in a manner that comports with the transcendent imperatives of the First Amendment.”

Noting that Bernstein had been previously warned of Walters' concern regarding the sexual content and age appropriateness of the material that he was presenting and was also aware that his prior choice of materials offended community values, the Appellate Division said that “we can find no basis upon which we would disturb the determination rendered.”

The Fireman's Rule

The Fireman's Rule

Currie v McQueen, Supreme Court, Nassau County, [Not selected for publication in the Official Reports]

A New York City police officer sued to recover damages for injuries he sustained on when, while in the course of his duties, he was assaulted by McQueen as he attempted to arrest him during a public demonstration.

McQueen contended that Currie's action for assault is barred by the “Fireman's Rule” as set out by the Court of Appeals in Santangelo v State, 71 NY2d 393.

In Santangelo, the Court of Appeals expressly barred police officers from bringing a personal injury action sounding in negligence arising from “the very situations that create the occasion for their services.”

Justice Phelan said that the holding in Santangelo and similar cases was effectively overruled by an amendment to the Section 11-106 of the General Obligations Law. Section 11-106 gives a limited right of recovery to police officers and firefighters injured by the negligence or intentional conduct of any person except an employer or co-employee.

The theory underlying this change: although public policy considerations support the preclusion of negligence claims against the governmental entities which employ firefighters and police officers are cogent, these considerations do not justify barring firefighters and police officers from recovering damages when they are injured or killed as a result of the negligence of private parties.

Expanding on this, Justice Phelan ruled that there is even less justification in barring recovery resulting from the intentional acts of a private party and rejected McQueen's motion to dismiss Currie's complaint “sounding in assault and battery.”

Jarema Credit and probationary service

Jarema Credit and probationary service

Decisions of the Commissioner of Education, 14,557, April 12, 2001 [MacDonald and the North Tonawanda City School District]

Arthur G. McDonald served as a tenured music teacher with the Kenmore-Tonawanda Union Free School District until June 1990.

In September 1991 North Tonawanda was appointed him as a part-time [.6 full-time equivalent] music teacher. He served in this capacity until February 1992, when the district appointed MacDonald as a full-time long-term substitute music teacher.

In September 1997, MacDonald's employment status underwent another change: the district appointed MacDonald as a part-time [.8 full-time equivalent] music teacher through June 1998.

In July 1998, MacDonald was appointed to a position in the Music K-12 tenure area subject to a two-year probationary term. By letter dated June 19, 2000, Superintendent John H. George informed MacDonald that he would not recommend him for retention as a tenured employee. The district terminated MacDonald's as a probationary teacher on July 12, 2000.

MacDonald objected, contending that pursuant to Education Law Sections 2509(1)(a) and 3012(1)(a), he should have received two years probationary service credit -- so-called “Jarema” credit -- for his continuous long-term substitute teaching in the district. He claimed that with such Jarema credit, his probationary period would have terminated September 8, 1999 rather than June 2000, and that he therefore acquired tenure by estoppel and acquiescence when district continued his employment beyond September 8, 1999.

The district, on the other hand, argued that by accepting the part-time (.8 FTE) position for the 1997-98 school year, MacDonald created a “gap” year in his full-time employment with the district and thus he is not entitled to receive Jarema credit for his long-term substitute service.

The Commissioner said that MacDonald “correctly asserts” that where a teacher is entitled to both probationary periods specified in Education Law Sections 2509(1)(a) and 3012(1)(a), the shorter of the two probationary periods governs. Accordingly, the issue to be resolved in this case is whether MacDonald is whether petitioner is entitled to Jarema credit for his full-time substitute service.

On this issue the Commissioner said that he saw no reason to deviate from the long-standing interpretation that regular substitute service must immediately precede a probationary appointment for a teacher to be eligible for Jarema credit.

Thus, said the Commissioner, because MacDonald's service was interrupted by a year of part-time service, he is not entitled to Jarema credit and dismissed his appeal.

Responsibility for the payment of health insurance claims

Responsibility for the payment of health insurance claims

Berkowitz v Neuman, 283 AD2d 179

This “denial of health insurance benefits” case was brought on behalf of Mildred Neuman, a retired employee of the Mount Vernon City School District, who was a beneficiary under the District's Employee Health Benefit Plan.

The health insurance plan [plan] was administered by American Group Administrators (AGA) until August 31, 1997, when United HealthCare became the insurance carrier for the District.

Although the greater part of the ruling addresses questions concerning Neuman’s eligibility for benefits based on her receiving treatment that was a “covered medically necessary” in contrast to seeking benefits for “excluded custodial care,” the Appellate Division also addressed the question of liability for the payment of benefits in the event a health insurance plan administrator is found to have incorrectly denied a covered individual benefits available under the health insurance plan.

The Appellate Division's conclusion:

Even if the plan administrator was solely responsible for determining medical necessity and made an incorrect determination, payment of the claim would still be the plan's responsibility.

Employee contributions by a member of a public retirement system as “disposable income” for the purposes of filing for bankruptcy

NYC Employees' Retirement System v Sapir, CA2,243 F.3d 124*

Sharlene De Ann Taylor, an employee of the New York City Housing Authority [NYCHA], filed for Chapter 13 bankruptcy in accordance with 11 U.S.C. 1325(b). Her employment required Taylor to join the New York Cite Employees' Retirement System [NYCERS]. This, in turn, required that she make an employee contribution of $134.20 per month. This amount is automatically deducted from her salary and deposited with NYCERS. This mandatory employee retirement contribution is the focus of the Circuit Court of Appeals inquiry in this action.

The basic issue the Circuit Court of Appeals, Second Circuit was asked to resolve in the Taylor case was whether or not Taylor’s employee contributions to the Retirement System, required by State law, was “disposable income” within the meaning of the federal Bankruptcy Code. In other words, are the monies required as the employee's contribution to NYCERS insulated from being distributed among Taylor's creditors?

Section 1325(b)(2)(A) of the Bankruptcy Code defines “disposable income,” as is applicable here, as “income which is received by the debtor and which is not reasonably necessary to be expended for the maintenance or support of the debtor or a dependent of the debtor.” The Bankruptcy Code, however, does not define “reasonably necessary.”

The Second Circuit decided to provide bankruptcy court judges with a “flexible solution,” allowing those courts to consider the facts in each individual case in determining whether or not the pension contributions qualify as a “reasonably necessary” expense for that debtor.

If the bankruptcy judge finds that the such contributions are a reasonably necessary expense for an individual debtor based on the circumstances confronting that debtor, that amount will excluded in the determining “disposable income” for the purposes of the bankruptcy proceeding.**

Conversely, if the judge finds that the contributions are not a reasonably necessary expense for an individual debtor based on the circumstances confronting that debtor, they will be included in determining the amount of an individual's disposable income, and the employee contribution deduction will be ordered discontinued for the duration of the Bankruptcy Plan. In determining whether or not pension contributions are reasonably necessary for an individual debtor, the Circuit Court said that the bankruptcy judge may consider any factors properly before the court, including but not limited to:

1. The age of the debtor and the amount of time until expected retirement;

2. The amount of the monthly contributions and the total amount of pension contributions debtor will have to buy back if the payments are discontinued;

3.The likelihood that buy-back payments will jeopardize the debtor's fresh start;

4. The number and nature of the debtor's dependents;

5. Evidence that the debtor will suffer adverse employment conditions if the contributions cease;

6. The debtor's yearly income; and

7. The debtor's overall budget

The Circuit Court also said that the Bankruptcy Court judge could also consider any other constraints on the debtor that make it likely that the pension contributions are reasonably necessary expenses for that debtor. These could include, for example, the obligations set out in a divorce decree with respect to distribution of pension assets to a spouse.

The court commented that “[a]dministrative inconvenience to NYCERS and NYCHA, however, is not to be considered. The impact on the administrator of the fund is irrelevant in determining whether or not the pension contribution is a reasonably necessary expense to an individual debtor.

* The respondent “Sapir” is Jeffrey L. Sapir, the standing Chapter 13 Trustee for the Southern District of New York.

** A retirement system member’s retirement allowance consists of two parts: an annuity portion funded by the employee’s contributions to the system and a pension portion underwritten by employer contributions to the system. Presumably the “discontinuation of employee contributions” for the duration of the Bankruptcy Plan will have an impact only on the annuity portion of the individual’s retirement allowance.

Preparing an adequate defense to disciplinary action requires sufficient notice of charges

Preparing an adequate defense to disciplinary action requires sufficient notice of charges

Gustafeste v NYC Dept. of Sanitation, 282 A.D.2d 398

When an employee is served with disciplinary charges, he or she is entitled to be given information concerning such charges sufficient to permit his or her adequately preparing his or her defense [Pachucki v Walters, 56 AD2d 677]. Further, case law has long held that an employee may not be found guilty of acts of misconduct or incompetence that have not been charged [Shuster v Humphrey, 156 NY 231].

The Gustafeste case focused on the issue of providing the employee with sufficient information concerning the charges in order for him or her to be able to prepare his or her defense so that it cannot rightfully be claimed that the individual was found guilty acts or omissions that were not charged.

Joseph Gustafeste, a New York City Department of Sanitation employee, was found guilty of misconduct following his involvement in an accident while operating a department motor vehicle. The penalty imposed: a 30-day suspension without pay.

Gustafeste appealed, contending that the charges of misconduct filed against him by the department did not specifically charge him with having “caused the accident by negligently losing control of his vehicle.” Accordingly, he argued, he had not been given an adequate opportunity to prepare his defense against this allegation.

The Appellate Division decided that it was clear from the specifications set out in the charges filed against him that Gustafeste was being charged with “negligently operating his vehicle.” This, said the court, meant that Gustafeste had been given sufficient notice of the charge of which he was found guilty so as to enable him to adequately prepare his defense.

As to the penalty imposed – a 30-day suspension without pay -- the Appellate Division ruled that for the misconduct proved against [Gustafeste], some of which involved violations of Department of Sanitation safety rules, [such a penalty] does not shock the judicial conscience and accordingly may not be disturbed.”

Sometimes an employee will demand “a bill of particulars” requiring the employer to set out the charges and specifications filed against the individual in greater detail.

Although Education Law Section 3020-a 3 c(iii)(C) indicates that an administrator or teacher has the right to demand a “bill of particulars” concerning the charges and specifications filed against him or her, no similar provision is included in Section 75 of the Civil Service Law. In some instances the disciplinary grievance procedure set out in a collective bargaining agreement allows the employee to demand a “bill of particulars.”