ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

February 09, 2012

Governor Cuomo and NYSCOPBA President Donn Rowe announce a tentative contract agreement between the State and NYSCOPBA law enforcement unit members

Governor Cuomo and NYSCOPBA President Donn Rowe announce a tentative contract agreement between the State and NYSCOPBA law enforcement unit members
Source: Office of the Governor

On February 9, 2012 Governor Andrew M. Cuomo and New York State Correctional Officers and Police Benevolent Association (NYSCOPBA) President Donn Rowe announced a tentative contract agreement between the State and NYSCOPBA law enforcement negotiating units members. This tentative agreement is subject to ratification by unit members. 

NYSCOPBA represents over 26,000 New York State employees in the Security Services Unit. The Governor said that the tentative agreement applies to law enforcement members "who are not eligible for arbitration."*

The tentative contract includes zero percent wage increases for 2011-2013 and ensures protections against layoffs, and offers health benefits commensurate with other state bargaining units. The contract provides for a 2% increase in both 2014 and 2015, 9 days of deficit reduction leave, and adjustments to the health insurance premium.

Among the proposed agreement, which follows the pattern of contracts negotiated over the past year, are the following:

1. A zero percent wage increases for 2011-2013, a 2% increase in both 2014 and 2015 plus 3% and 4% wage increases for 2009-2010; same pattern as other units. These increases were previously reserved for in the state financial plan.

2. A $1,000 retention bonus paid out $775 in the third year and $225 in the fourth year.

3. Deficit Reduction Leave of five days this fiscal year and four days next fiscal year.

4. Employees will be repaid the value of 4 days in equal installments starting at the end of the contract term.

5. Retroactive payments that are scheduled to be paid in two installments next fiscal year.

6. A two percent increase in ratio of the State/Employee health insurance premium contributions by employees Grade 9 employees and below, making the employees’ share 12% of the cost of individual coverage and 27% of the cost for dependent coverage; and a six percent increase in the ratio of the State/Employee health insurance premium contributions for employees Grade 10 and above, making such employees’ share 16% of the cost of individual coverage and 31% of the cost of dependent coverage.

7. A health insurance plan opt-out so officers can opt-out through a spouse/partner to a non-State health plan.

8. A labor/management committee to review all leave taken by officers, including annual, personal, sick, workers compensation, and the manner of such use. Recommendations will be made to the President of NYSCOPBA and the GOER Director for implementation.

9. Officers will receive broad layoff protection. [Workforce reductions due to management decisions to close or restructure facilities authorized by legislation, SAGE recommendations or material or unanticipated changes in the state's fiscal circumstances are not covered by this limitation.]

* Presumably referring to the provisions set out in Civil Service Law §209.4.

Employee terminated after being found guilty of falsification of her time and attendance records

Employee terminated after being found guilty of falsification of her time and attendance records
Aiken v City of New York, 2012 NY Slip Op 00824, Appellate Division, First Department

The Appellate Division affirmed a post-hearing arbitration award finding that the employee was guilty of three of the specifications charged, and that the Department of Education (DOE) had just cause for terminating her from her position. The court said that the evidence supported the arbitrator's finding that the employee, whose duties included entering data into DOE computers reporting the hours worked by staff, had [1] entered hours in the system for herself in excess of the hours she was permitted to work, without authorization; [2] did not work those additional hours; and [3] following her reassignment, she improperly reentered the computer system and changed the fraudulent numbers.

The court said that although the employee denied any knowledge of the limit to hours she was permitted to work without approval, this claim was refuted by the testimony of the school principal, the employee’s union representative and a letter  that the she had signed.

As to the penalty imposed, dismissal, the Appellate Division said that termination “was in accord with due process and was justified by [the employee’s] actions, particularly where [she] refused to accept any responsibility for her actions and asserted her innocence in the face of the overwhelming evidence to the contrary “

The decision is posted on the Internet at:


February 08, 2012

Teacher’s Facebook posting results in disciplinary action

Teacher’s Facebook posting results in disciplinary action
Matter of Rubino v City of New York, 34 Misc 3d 1220(A)

This decision by State Supreme Court Justice Barbara Jaffee demonstrates the consequences that may result from a posting on an individual’s Facebook "wall". In this instance the posting led to charges alleging “misconduct, neglect of duty and conduct unbecoming her profession” being filed against the teacher.

Ultimately the disciplinary hearing officer found the educator guilty and the New York City Department of Education [DOE] terminatated the teacher from her position.

In considering the teacher’s appeal, although Justice Jaffee affirmed the hearing officer’s findings as to the educator’s guilt, she vacated the penalty imposed and remanded the matter to the Department for the purpose of its setting a lesser penalty.

This remand, said the court, was required in consideration of the teacher’s “15-year employment history with the DOE was unblemished before she posted the offensive comments, and she posted them outside the school building and after school hours.”

Under the circumstances, said Justice Jaffee, the educator’s termination is so disproportionate to her offense as to shock one’s sense of fairness, applying the Pell Doctrine [Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222]

On remand the Hearing Officer, Randi Lowitt, Esq., determined that the penalty to be imposed should be a two-year suspension without pay. Hearing Officer Lowett's decision is posted on the Internet at:
http://www.parentadvocates.org/nicemedia/documents/Lowitt_second_decision.pdf.

Justice Jaffee's decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2012/2012_30246.pdf

Pre-termination hearings required when attempting to terminate an employee pursuant to Civil Service Law §73



Pre-termination hearings required when attempting to terminate an employee pursuant to Civil Service Law §73
Matter of Prue v Hunt, 78 NY2d 364

§73 of the Civil Service Law authorizes the termination and replacement of civil servants when they have been continuously absent from and unable to perform the duties of their position for one year or more by reason of a disability that did not result from an occupational injury or disease.

The significant questions raised in the Prue case is whether the Federal Due Process Clause requires a hearing before an employee may be terminated under §73. The Court of Appeals said that "in light of Cleveland Board of Education v Loudermill (470 US 532)," a §73 discharge must be proceeded by a pre-termination notice and a minimal opportunity to be heard. The ruling indicates that "to the extent that [the Court's] holding in Economico v Pelham (50 NY2d 120) permits a §73 discharge with only a post-termination hearing, it is superseded by Loudermill."

Prue, a police officer with the Syracuse Police Department, was seriously injured in an accident unrelated to his work on November 15, 1986. This injury allegedly prevented him from performing his duties as a police officer. Having exhausted all his paid vacation, personal and sick leave by October 15, 1987, petitioner requested reinstatement but failed to submit the medical documentation necessary to show that he was able to perform the duties of his position.

On November 13, 1987, Prue again requested reinstatement, this time submitting a letter from his physician stating that he was able to return to a desk job. The decision notes that for some ten years Prue, as President of the PBA, had been given a desk job in the department pursuant to a collective bargaining agreement.
However Prue's request for desk duty was refused and he was terminated his employment pursuant to §73.

Although Prue was offered a post-termination Economico hearing to be held within five days of his termination, he declined the hearing and commenced this Article 78 proceeding contesting his termination. The Court of Appeals decided that Prue's termination under §73 is controlled by the U.S. Supreme Court's ruling in Loudermill. It said that "the potential for an erroneous discharge or an inappropriate exercise of the discretion conferred under §73" justifies the initial burden placed on department in requiring it provide Prue with some pre-termination opportunity to respond. "

Also noted was the Court's view that Prue's discharge raised questions regarding his physical condition and whether his ability to perform the desk job he had filled for the preceding ten years constitutes an "ability to perform the duties of his position" within the meaning of §73.

In addition, the Court said that "like the Ohio statute in Loudermill, §73 calls for the termination of employees in the discretion of the employer." Consideration of Prue's contentions concerning his ability to perform the desk job he had previously held could have been a significant factor in the initial discretionary decision of whether to order termination under §73. However, he was given no opportunity to make these arguments prior to his discharge under the procedure
followed by Department.

As to the nature of the hearing to be given an employee in a §73 termination situation, the Court said that it concluded that Due Process requires only notice and some opportunity to respond.

The decision indicates that the formality and procedural requisites of a hearing can vary depending on such factors as the importance of the interest involved, the extent to which that interest may be lost, the hardship imposed by the loss and the availability of subsequent proceedings. The Court concluded that a pre-termination hearing was justified in §73 cases.

Pre-termination hearings required when attempting to terminate an employee pursuant to Civil Service Law §73



Pre-termination hearings required when attempting to terminate an employee pursuant to Civil Service Law §73
Matter of Prue v Hunt, 78 NY2d 364

§73 of the Civil Service Law authorizes the termination and replacement of civil servants when they have been continuously absent from and unable to perform the duties of their position for one year or more by reason of a disability that did not result from an occupational injury or disease.

The significant questions raised in the Prue case is whether the Federal Due Process Clause requires a hearing before an employee may be terminated under §73. The Court of Appeals said that "in light of Cleveland Board of Education v Loudermill (470 US 532)," a §73 discharge must be proceeded by a pre-termination notice and a minimal opportunity to be heard. The ruling indicates that "to the extent that [the Court's] holding in Economico v Pelham (50 NY2d 120) permits a §73 discharge with only a post-termination hearing, it is superseded by Loudermill."

Prue, a police officer with the Syracuse Police Department, was seriously injured in an accident unrelated to his work on November 15, 1986. This injury allegedly prevented him from performing his duties as a police officer. Having exhausted all his paid vacation, personal and sick leave by October 15, 1987, petitioner requested reinstatement but failed to submit the medical documentation necessary to show that he was able to perform the duties of his position.

On November 13, 1987, Prue again requested reinstatement, this time submitting a letter from his physician stating that he was able to return to a desk job. The decision notes that for some ten years Prue, as President of the PBA, had been given a desk job in the department pursuant to a collective bargaining agreement.
However Prue's request for desk duty was refused and he was terminated his employment pursuant to §73.

Although Prue was offered a post-termination Economico hearing to be held within five days of his termination, he declined the hearing and commenced this Article 78 proceeding contesting his termination. The Court of Appeals decided that Prue's termination under §73 is controlled by the U.S. Supreme Court's ruling in Loudermill. It said that "the potential for an erroneous discharge or an inappropriate exercise of the discretion conferred under §73" justifies the initial burden placed on department in requiring it provide Prue with some pre-termination opportunity to respond. "

Also noted was the Court's view that Prue's discharge raised questions regarding his physical condition and whether his ability to perform the desk job he had filled for the preceding ten years constitutes an "ability to perform the duties of his position" within the meaning of §73.

In addition, the Court said that "like the Ohio statute in Loudermill, §73 calls for the termination of employees in the discretion of the employer." Consideration of Prue's contentions concerning his ability to perform the desk job he had previously held could have been a significant factor in the initial discretionary decision of whether to order termination under §73. However, he was given no opportunity to make these arguments prior to his discharge under the procedure
followed by Department.

As to the nature of the hearing to be given an employee in a §73 termination situation, the Court said that it concluded that Due Process requires only notice and some opportunity to respond.

The decision indicates that the formality and procedural requisites of a hearing can vary depending on such factors as the importance of the interest involved, the extent to which that interest may be lost, the hardship imposed by the loss and the availability of subsequent proceedings. The Court concluded that a pre-termination hearing was justified in §73 cases.

February 07, 2012

Names of retired New York City police officers not available pursuant to a FOIL request

Names of retired New York City police officers not available pursuant to a FOIL request
Empire Ctr. for N.Y. State Policy v New York City Police Pension Fund, 88 AD3d 520

The Appellate Division affirmed a Supreme Court ruling that denied the Empire Center for New York State Policy’s petition seeking an order directing the New York City Police Pension Fund to comply with Freedom of Information Law (FOIL) request for the names of all of the Funds retired members.

Noting that the Court of Appeals held that Public Officers Law §89(7) exempts from disclosure both the names and addresses of retirees of the New York City Police Department receiving pensions and annuities [see Matter of New York Veteran Police Assn. v New York City Police Dept. Art. I Pension Fund (61 NY2d 659)], the Appellate Division said that Supreme Court had properly denied the petition as Empire Center offered “no persuasive argument distinguishing its FOIL request from that in Matter of New York Veteran Police Assn.

The decision is posted on the Internet at:

Where arbitration is statutorily mandated, the arbitrator’s decision is subject to "closer judicial scrutiny” than might otherwise be the case

Where arbitration is statutorily mandated, the arbitrator’s decision is subject to "closer judicial scrutiny” than might otherwise be the case
Powell v Board of Educ. of Westbury Union Free School Dist., 2012 NY Slip Op 00790, Appellate Division, Second Department

The Education Law §3020-a arbitrator sustained certain charges of misconduct against Darnel Powell and terminated his employment.

Powell appealed, contending that the arbitrator's determination was arbitrary and capricious because the arbitrator did not resolve issues of credibility in his favor.

The Appellate Division rejected Powell’s claim, explaining that in the event "the evidence is conflicting and room for choice exists," a court may not weigh the evidence or reject the choice made by the arbitrator.

Sustaining the arbitrator's ruling, the court, however, pointed out that where the obligation to arbitrate arises as the result of a statutory mandate, as is the case in Education Law §3020-a disciplinary procedures, the arbitrator’s determination is subject to "closer judicial scrutiny" -- i.e., greater scrutiny than it might otherwise receive where submitting the matter to arbitration is a decision of the parties.* Indeed, said the Appellate Division, "An award in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious."

Further, a court in reviewing a decision that resulted from compulsory arbitration inquires as to “whether the decision was rational or had a plausible basis," but otherwise accepts the arbitrators' credibility determinations, even where, as noted above, there is conflicting evidence and room for choice exists."

The decision also commented that in this instance, and contrary to Powell’s contention, the arbitrator properly refused to admit into evidence his proffered polygraph test evidence.

* Presumably this standard of review would not apply in arbitrations not statutorily mandated such as arbitrations available in disciplinary procedures negotiated pursuant to §76.4 of the Civil Service Law. 

The decision is posted on the Internet at:


February 06, 2012

From the Office of the State Comptroller:

From the Office of the State Comptroller:

State Comptroller warns of lottery scam
On February 3, 2012 New York State Comptroller Thomas P. DiNapoli issued a warning of a lottery scam involving mail containing fraudulent checks that appear to have been issued by New York State. “An offer of easy money is usually too good to be true and that is the case here.” DiNapoli said.



Audits of municipalities issued during the week ending February 3, 2012

New York State Comptroller Thomas P. DiNapoli’s office this week released the following audits: the Town of Avon; the Village of Granville; the Village of Hamilton; the Village of Monticello; the Village of Port Jefferson; and, the Clifton–Fine Central School District. Click on the name of the jurisdiction to access the Comptroller's audit report.

Property Tax Cap filing requirements

New York State’s property tax cap, effective for local fiscal years beginning in 2012 and for the 2012-13 school year limits annual increases in the total amount of property taxes local governments and school districts can levy to either 2 percent or the rate of inflation, whichever is less, with some limited exceptions. For information, visit www.osc.state.ny.us and click the “Real Property Tax Cap Information” link, or call the State Comptroller’s Office at (518) 473-0006.

Raising a “triable issue of fact” precludes the granting of summary judgment in an action alleging unlawful retaliation

Raising a “triable issue of fact” precludes the granting of summary judgment in an action alleging unlawful retaliation
Delrio v City of New York, 2012 NY Slip Op 00747, Appellate Division, Second Department

German Delrio sued the City of New York seeking to recover damages for alleged unlawful retaliation in violation of §8-107 of the Administrative Code of the City of New York

Although Supreme Court granted the City’s motion for summary judgment to dismiss Delrio’s complaint; the Appellate Division reversed the decision “on the law,” setting out the events leading to its ruling as follows:

Delrio filed a complaint with the New York State Division of Human Rights [SDHR] alleging that the New York City Fire Department [NYFD] engaged in an unlawful discriminatory practice relating to employment, in violation of the New York State Human Rights Law, because of his sex.

SDHR determined that there was no probable cause to believe that NYFD had engaged in the unlawful discriminatory practice complained of, and dismissed Delrio’s complaint.

Delrio than asked the United States Equal Employment Opportunity Commission, [EEOC] to review his allegations. EEOC ultimately decided to adopt the findings of the SDHR.

Delrio than commenced an action against the City of New York and four FDNY Officers to recover damages for alleged unlawful retaliation in violation of Administrative Code of the City of New York §8-107.

The Appellate Division explained that in order to make out an unlawful retaliation claim, a plaintiff must show that "(1) [he or she] has engaged in protected activity, (2) [his or her] employer was aware that [he or she] participated in such activity, (3) [he or she] suffered an adverse employment action based upon [his or her] activity, and (4) there is a causal connection between the protected activity and the adverse action."

If the plaintiff “has met this initial burden, the burden then shifts to defendants to present legitimate, independent and nondiscriminatory reasons to support their actions.”

If defendants meet this burden, plaintiff then is required to show that the reasons put forth by defendants “were merely a pretext."

In order to establish its entitlement to summary judgment in a retaliation case, a defendant must demonstrate that the plaintiff cannot make out a prima facie claim of retaliation or, having offered legitimate, nonretaliatory reasons for the challenged actions, that there exists no triable issue of fact as to whether the defendant's explanations were pretextual.

In this instance, said the court, while the City defendants established their entitlement to judgment as a matter of law by presenting nonretaliatory business reasons for the challenged actions, Delrio raised triable issues of fact as to whether the reasons given by the City defendants were pretextual.

The Appellate Division pointed out that Delrio had submitted an affirmation from his immediate supervisor wherein she stated that a reassignment of Delrio “violated FDNY internal procedure as well as known past practice.” Further, said the court, the record shows a “strong temporal correlation between [Delrio’s] protected activity, i.e., his involvement in the SDHR administrative complaint process, and the [City's] allegedly retaliatory actions.”

Concluding that Delrio had offered sufficient evidence to raise a triable issue of fact as to whether the reasons put forth by the City were merely pretextual, the City defendants were not entitled to a summary judgment dismissing Delrio’s complaint.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00747.htm

A ten-day suspension without pay recommended after employee is found guilty of refusing to comply with her supervisor’s instruction

A ten-day suspension without pay recommended after employee is found guilty of refusing to comply with her supervisor’s instruction
Human Resources Administration v Traylor, OATH Index #2162/11

OATH Administrative Law Judge Ingrid M. Addison found a clerical employee to be insubordinate when she refused her supervisor’s request to make corrections to ten cases records. 

Traylor's defense: She had  told the supervisor that despite her initials on the records, they were not her cases and "insisted that [her initials] must have been inserted by someone else." 

Ultimately another employee had to make the corrections.

Judge Addison rejected the employee’s contention that the supervisor’s failure to use the word “order” or “command” when she asked Traylor to make the corrections.

The ALJ explaining that “Even if [Traylor] had not worked on the cases originally, she did not have a legitimate excuse for disobeying the directive," recommended that Traylor be suspended without pay for ten days.

The decision is posted on the Internet at:

February 05, 2012

Liquidation of leave credits upon separation

Liquidation of leave credits upon separation

A NYPPL reader asked for some citations to court decisions that address the liquidation of an individual’s claimed leave credits upon his or her separation from his or her employment.

Among such rulings in NYPPL's  files are the following:

Payment for unused vacation and sick leave.
Boakye-Yiadom v Roosevelt Union Free School Dist., 25 Misc 3d 1226(A), [see http://www.nycourts.gov/reporter/3dseries/2007/2007_52657.htm ];

Payment for unused vacation, sick, and terminal leave pursuant to General Municipal Law §207-m 
Garrigan v Incorporated Vil. of Malverne, 59 AD3d 662, [see  http://www.nycourts.gov/reporter/3dseries/2009/2009_01441.htm ];

Payment accrued unused compensatory, vacation and sick time pursuant to §207-m of the General Municipal Law upon separation 
Hauptman v Village of Elmira Hgts., 23 Misc 3d 439, [see

Including a retirement incentive payment  in the administrator's five-year final average salary for the purposes of determining the individual's retirement allowance 
Matter of Curra v New York State Teachers' Retirement Sys., 18 Misc 3d 1144(A), [see http://www.nycourts.gov/reporter/3dseries/2005/2005_52354.htm ]; Sustained 30 AD3d 666 http://www.nycourts.gov/reporter/3dseries/2006/2006_04216.htm 

Including salary increases and other compensation received prior to retirement in determining the three-year final average salary for the purposes of computing the individual's retirement allowance 
Matter of Palandra v New York State Teachers' Retirement Sys., 27 Misc 3d 1214(A)], [see http://www.nycourts.gov/reporter/3dseries/2010/2010_50735.htm],


February 04, 2012

Right to counsel in an administrative disciplinary hearing

Right to counsel in an administrative disciplinary hearing
Matter of Elmore v Plainview-Old Bethpage Central School District, Board of Education, 273 A.D.2d 307

The Plainview-Old Bethpage Central School District terminated the employee following an administrative disciplinary hearing held pursuant to Education Law §3020-a.

The employee appealed the dismissal, contending that the Hearing Officer’s ruling unfairly denied him his right to counsel during the hearing when the Hearing Officer ruled that the employee could not discuss his “cross-examination testimony” with his attorney during any adjournments in the proceding.*

The Supreme Court agreed and granted the employee’s petition to vacate the School District’s decision to terminate his employment.

The Appellate Division sustained the lower court’s ruling, noting that under Education Law §3020-a(3)(c)(i), a teacher facing disciplinary charges shall have the right to be represented by counsel at any hearing held on those charges.

The court explained that while it was mindful that teacher disciplinary proceedings are not criminal actions, it was equally mindful that a tenured teacher has a protected property interest in his position which raises due process considerations when a teacher is faced with termination of his employment.

Noting that New York courts have disapproved similar prohibitions forbidding a defendant from discussing his trial testimony with his attorney for all but brief periods of time, the Appellate Division ruled that “In view of the due process considerations involved when a tenured teacher is threatened with termination of his employment, this is a sound approach, particularly in the instant case, where the time period involved was 10 weeks.”

Accordingly, the Appellate Division concluded that the Supreme Court did not err in vacating the award and directing a new hearing.

* The cross-examination of the employee was conducted during five days which extended over a period of 10 weeks.

The decision is posted on the Internet at:

Substantial evidence test used to resolve challenges to an administrative decision

Substantial evidence test used to resolve challenges to an administrative decision
Matter of Incorporated Vil. of Lake Success v New York State Pub. Empl. Relations Bd., 41 AD3d 599

The Appellate Division held that the determination of the New York State Public Employment Relations Board, confirming the determination of an administrative law judge, made after a hearing, granting the petition of the Civil Service Employees Association to place certain positions into an already existing negotiating unit was supported by substantial evidence. 

Such evidence, said the court, consisted of PERB’s finding that the incumbents of those positions and the CSEA unit employees share a community of interest, that there is no conflict of interest that would affect the conduct of meaningful and effective negotiations, and that the placement would not cause administrative inconvenience. 

Accordingly, PERB's determination had to be sustained.

The decision is posted on the Internet at:

Employee’s objection to the introduction of a “911 recording” in a disciplinary hearing rejected

Employee’s objection to the introduction of a “911 recording” in a disciplinary hearing rejected
Matter of Dockery v New York City Hous. Auth., 51 AD3d 575

The Appellate Division held that the Housing Authorit’s termination of its employee based on evidence contained on a “911 recordings.”

The court explained that “911 recordings were properly admitted into evidence at the [administrative] disciplinary hearing since they were not official records relating to [the employee’s] arrest or prosecution, and thus were not subject to the sealing statute (CPL 160.50; see Matter of Harper v Angiolillo, 89 NY2d 761, 767 [1997].”

Under the circumstances, the Appellate Division ruled that “The penalty of dismissal does not shock the conscience,” citing Kelly v Safir, 96 NY2d 32.

The decision is posted on the Internet at:

February 03, 2012

The Open Meetings Law requires the public body to indicate the particular reasons for its going into an executive session

The Open Meetings Law requires the public body to indicate the particular reasons for its going into an executive session
Zehner v Board of Educ. of Jordan-Elbridge Cent. School Dist., 2012 NY Slip Op 00623, Appellate Division, Fourth Department

David Zehner alleged that the Jordan-Elbridge Central School District had engaged in a pattern of violating New York's Open Meetings Law (Public Officers Law §100 et seq.) with respect to its going into executive session. Supreme Court agreed.

Affirming the lower court’s ruling, the Appellate Division said that the Open Meetings Law [OML] provides that "Every meeting of a public body shall be open to the general public, except that an executive session of such body may be called and business transacted thereat in accordance with [Section 105]" Here, said the court, the school district had violated the OML on three occasions.

Although the OML does allow a public body to go into executive session, the Appellate Division noted that “the topics that may be discussed [in such an executive session] are circumscribed by statute and include matters involving public safety, proposed, pending or current litigation, collective bargaining, and matters concerning the appointment or employment status of a particular person.”

The problem underlying this action was that the school district “merely reciting statutory categories for going into executive session without setting forth more precise reasons for doing so.”  Citing Daily Gazette Co. v Town Bd., Town of Cobleskill, 111 Misc 2d 303, the Appellate Division explained that §105 is to be “strictly construed,” and the real purpose of an executive session will be carefully scrutinized "lest the … mandate [of the Open Meetings Law] be thwarted by thinly veiled references to the areas delineated thereunder."

Noting that the Open Meetings Law provides that "costs and reasonable attorney fees may be awarded by the court, in its discretion, to the successful party,” the Appellate Division said that it did not perceive any abuse by the Supreme Court, in it's exercise of its discretion, awarding attorney fees to Zehner.

The decision is posted on the Internet at:

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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