May 12, 2022

INFORMATION FOR VISITORS TO THE NEW YORK PUBLIC PERSONNEL LAW DATABASE

Although the 5,707 items posted on New York Public Personnel Law [NYPPL] to date will continue to be available to interested readers of this LawBlog for research purposes, I have discontinued my practice of posting new or updated case summaries on a daily basis.  

HOW TO USE NYPPL'S RESEARCH TOOL 

Type in a word or phrase related to the subject in which are you are interested in the box in the upper left displaying the "magnifying glass" symbol and all NYPPL postings containing that word or phrase will be displayed for your review. You may then "cut and paste" the text of the material in which you are interested contained in a case summary to your document or email. 

N.B.: §22 of New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” Case summaries posted in NYPPL typically follow this protocol. 

NYPPL's New York Public Personnel Law Handbooks listed below will continue to be available for purchase from BookLocker:

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more about this electronic handbook, click HERE.

A Reasonable Disciplinary Penalty Under the Circumstances - The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. For more information click HERE.

Disability Benefits for fire, police and other public sector personnel - an e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information about this e-book click HERE.

The Layoff, Preferred List and Reinstatement Manual - This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions. Click HERE for more information. 

Harvey Randall, Esq., nyppl@nycap.rr.com


May 11, 2022

Setting the compensation to be paid the Governor and Lieutenant Governor of the State of New York

In April, 2019, the New York State Legislature passed a concurrent resolution increasing the Governor's and Lieutenant Governor's annual salaries retroactive to January 1, 2019. Plaintiff challenged the Legislature's action, alleging that "the concurrent resolution ran afoul of NY Constitution, Article XIII, §7." As relevant here, Supreme Court granted the Comptroller's [Defendant] motion to dismiss the complaint. Plaintiff appealed.

The Appellate Division reversed Supreme Court's granting the Defendant's motion for summary judgment and denied the motion. The full text of the Appellate Division's decision is set out below:

 

Arrigo v DiNapoli

2022 NY Slip Op 02845

Decided on April 28, 2022

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided and Entered:
April 28, 2022


532971

Robert Arrigo, Appellant,

v

Thomas P. DiNapoli, as State Comptroller, Respondent.



Calendar Date:March 25, 2022
Before:Garry, P.J., Lynch, Aarons, Colangelo and Ceresia, JJ.

Government Justice Center, Inc., Albany (Cameron J. Macdonald of counsel), for appellant.

Letitia James, Attorney General, Albany (Victor Paladino of counsel), for respondent.

Garry, P.J.

Appeal from a judgment of the Supreme Court (McDonough, J.), entered January 8, 2021 in Albany County, which, among other things, granted defendant's motion for summary judgment dismissing the complaint.

Pursuant to matching provisions in the NY Constitution, the annual salaries of the Governor and Lieutenant Governor are "fixed by joint resolution of the [S]enate and [A]ssembly" (NY Const, art IV, §§ 3, 6). In April 2019, the Legislature passed a concurrent resolution increasing the Governor's and Lieutenant Governor's annual salaries retroactive to January 1, 2019 (hereinafter the concurrent resolution). The concurrent resolution also provided that those officials would receive two additional increases to their annual salaries on January 1, 2020 and January 1, 2021 but conditioned each increase "upon the timely legislative passage of the budget for the preceding year" (see L 2018, ch 59, § 1, part HHH, § 2 [4]; see also Legislative Law § 5 [3]).

Plaintiff, a resident and taxpayer of this state, commenced this action pursuant to State Finance Law §§ 123-b and 123-e, alleging that the concurrent resolution ran afoul of NY Constitution, article XIII, § 7, which provides that "[e]ach of the state officers named in this constitution shall, during his or her continuance in office, receive a compensation, to be fixed by law, which shall not be increased or diminished during the term for which he or she shall have been elected or appointed; nor shall he or she receive to his or her use any fees or perquisites of office or other compensation." Plaintiff sought an order (1) declaring that the concurrent resolution was "null and void" for having violated the NY Constitution, (2) permanently enjoining defendant from paying the Governor and Lieutenant Governor the rates set by the concurrent resolution, and (3) awarding him counsel fees and costs. Defendant's answer asserted, among other things, that plaintiff failed to join the Governor and Lieutenant Governor as necessary parties and requested that Supreme Court dismiss the complaint or declare that the concurrent resolution "ha[d] not been shown to be unconstitutional."

Defendant moved for summary judgment dismissing the complaint and for such a declaration or, in the alternative, joinder of necessary parties. Plaintiff cross-moved for summary judgment. Supreme Court granted defendant summary judgment dismissing the complaint, issued the declaration requested by defendant, and denied plaintiff's cross motion. Plaintiff appeals.

We first address the joinder issue. CPLR 1001 (a) provides that "[p]ersons . . . who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants." When such a person "has not been made a party and is subject to the jurisdiction of the court, the court shall order him [or her] summoned" (CPLR 1001 [b]). This requirement protects the right to due process by providing such a person the opportunity to be heard before his or her interests are adversely affected (see Matter of Martin v Ronan, 47 NY2d 486, 490 [1979]; Mahinda v Board of Collective Bargaining, 91 AD3d 564, 565 [2012]; Matter of 27th St. Block Assn. v Dormitory Auth. of State of N.Y., 302 AD2d 155, 160 [2002]). Parties may be added by leave of court at any stage of the action (see CPLR 1003), including, "in the first instance, on appeal" (Matter of New York State Assn. of Plumbing-Heating-Cooling Contrs. v Egan, 86 AD2d 100, 105 [1982], affd on opinion below 60 NY2d 882 [1983]).

The Governor and Lieutenant Governor have an interest in their own salaries (see e.g. Matter of Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO v Pataki, 259 AD2d 826, 827-828 [1999], lv dismissed and denied 93 NY2d 993 [1999]; Matter of McGuinn v City of New York, 219 AD2d 489, 490 [1995], lv dismissed and denied 87 NY2d 966 [1996]; Matter of Cassidy v New York City Dept. of Correction, 95 AD2d 733, 734-735 [1983]; Matter of Serth v New York State Dept. of Transp., 79 AD2d 801, 802 [1980]).[FN1] Although those salaries are subject to change, CPLR 1001 does not speak of, and is not limited to, vested rights or interests (see Matter of Basha Kill Area Assn. v Town Bd. of Town of Mamakating, 302 AD2d 662, 664 [2003]; Matter of 27th St. Block Assn. v Dormitory Auth. of State of N.Y., 302 AD2d at 160). The interests of the Governor and Lieutenant Governor could be inequitably affected if we declare that the concurrent resolution is void and enjoin defendant from paying their salaries at the rates set in that resolution (see Matter of Jim Ludtka Sporting Goods, Inc. v City of Buffalo School Dist., 48 AD3d 1103, 1104 [2008], lv denied 11 NY3d 704 [2008]; Matter of Romeo v New York State Dept. of Educ., 41 AD3d 1102, 1104 [2007]; Matter of Boston Culinary Group, Inc. v New York State Olympic Regional Dev. Auth., 18 AD3d 1103, 1104 [2005], lv denied 5 NY3d 712 [2005]; Matter of Basha Kill Area Assn. v Town Bd. of Town of Mamakating, 302 AD2d at 664). "[T]he possibility that a judgment rendered without the omitted party could have an adverse practical effect on that party is enough to indicate joinder" (Matter of Nemeth v K-Tooling, 163 AD3d 1143, 1144 [2018] [internal quotation marks and citations omitted]; see Matter of 27th St. Block Assn. v Dormitory Auth. of State of N.Y., 302 AD2d at 160).

Contrary to plaintiff's argument, the interests of the Governor and Lieutenant Governor are not necessarily being represented or protected by defendant and his counsel — the Attorney General, who would also typically represent those other state officials (see Matter of Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO v Pataki, 259 AD2d at 828). We cannot determine whether the Governor and Lieutenant Governor will necessarily support and integrate defendant's argument that the resolution is constitutional; indeed, they may argue against its constitutionality, to establish precedent that would prevent a potential future intra-term diminution of their salaries. Accordingly, and as the Governor and Lieutenant Governor are subject to its jurisdiction, Supreme Court should have granted defendant's request that those officers be joined as necessary parties and ordered them summoned (see CPLR 1001 [b]; 1003; Matter of Alexy v Otte, 58 AD3d 967, 967-968 [2009]; see also State Finance Law § 123-b [2] [permitting a plaintiff in an action concerning a wrongful expenditure of state funds to "join as a party defendant the recipient of such a wrongful expenditure"]).

Plaintiff has expressly limited his argument for relief to seeking a declaration that the concurrent resolution is unconstitutional and that defendant prospectively stop paying the Governor and Lieutenant Governor at the higher salary rate. However, "the fundamental duty" of defendant's office is "to 'superintend the fiscal concerns of the state'" (Matter of Martin H. Handler, M.D., P.C. v DiNapoli, 23 NY3d 239, 246 [2014] [brackets and citation omitted], quoting State Finance Law § 8 [1]); as the state's chief fiscal officer, he has "legally mandated duties to prevent unauthorized payments and overpayments" of state monies (Matter of Martin H. Handler, M.D., P.C. v DiNapoli, 23 NY3d at 247; see NY Const, art V, § 1; State Finance Law § 8 [1], [2], [2-b], [3], [7]). Considering that defendant "has long been viewed as having authority to confirm that payments already made were proper," if it were to be held that defendant had been making payments that were unconstitutional, defendant would then be authorized to recoup any state funds illegally paid (Matter of Martin H. Handler, M.D., P.C. v DiNapoli, 88 AD3d 1187, 1190 [2011], affd 23 NY3d 239 [2014]); see Matter of Signature Health Ctr., LLC v Hevesi, 13 Misc 3d 1189, 1192 [Sup Ct, Albany County 2006]). Indeed, some of the statutorily enumerated forms of relief under State Finance Law § 123-e are "a declaration that a proposed disbursement . . . would be illegal" and "restitution to the state of those public funds disbursed" (State Finance Law § 123-e [1]). Therefore, despite plaintiff's attempt to limit the relief he seeks in this action, if plaintiff is successful, defendant may seek to recoup any state monies illegally paid under the concurrent resolution retroactively, back to January 1, 2019. Thus, former Governor Andrew M. Cuomo — who was authorized to receive a salary under the concurrent resolution from January 2019 until August 2021 — may also be adversely affected and should similarly be joined as a necessary party.

Following plaintiff's service of the initiatory papers upon the Governor, Lieutenant Governor and former Governor, they will have an opportunity to respond and raise any applicable defenses. Supreme Court will then be able to consider this action "with the benefit of participation by all necessary parties" (Matter of Romeo v New York State Dept. of Educ., 41 AD3d at 1105).

Lynch, Aarons, Colangelo and Ceresia, JJ., concur.

ORDERED that the judgment is modified, on the law, without costs, by reversing so much thereof as granted defendant's motion for summary judgment; said motion denied and the Governor, Lieutenant Governor and former Governor Andrew M. Cuomo are joined as defendants, plaintiff is ordered to serve the summons and complaint adding said parties within 20 days of the date of this Court's decision, and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.

Footnotes

Footnote 1: After the date of oral argument, the Lieutenant Governor resigned from office. Our decision is not affected by this development, as he still retains an interest in his salary from his time in that office. Any further references to the Lieutenant Governor should be read to include the recent occupant of that office.

 

 

May 10, 2022

Seeking access to materials claimed to be protected by the Attorney-Client Privilege

The term "Attorney-client privilege" is typically applied to the work product of an attorney that may be claimed to be confidential legal communications between a client and the client's attorney's. The privilege is usually asserted by the client's attorney when confronted with a demand for the communication. Additionally, the "privilege" belongs to the client and may not be waived by the attorney absent the client's consent. 

In this appeal the Appellate Division held that the motion court, following an in camera review,* "providently exercised its discretion in directing various communications to be produced by the defendants [Defendants] and delivered to the complainant [Plaintiff]. The court concluded that the Defendants' internal correspondence concerning the item "at the heart of this litigation are not materials uniquely the product of a lawyer's learning and professional skills, such as those reflecting an attorney's legal research, analysis, conclusions, legal theory, or strategy, and are thus not privileged," citing Gottwald v Sebert, 172 AD3d 445.

Additionally, the court explained, emails between the Defendant in this action and an attorney representing a third party "are not privileged as their substance was clearly in connection with the attorney's representation of the third party, whose position at that time was adverse to defendant."

Secondly, opined the Appellate Division, "correspondence between the public relations manager of [a former client of Defendants and the Defendants] was not in furtherance of either parties' legal positions but in response to a disagreement over a Tweet" and "cannot reasonably be characterized as confidential communications made for the purposes of legal advice."

Addressing Defendants' communications demanded by Plaintiff between Defendants and their public relations firm, the court said that such communications did not "reflect a discussion of legal strategy relevant to the pending litigation but, rather, a discussion of a public relations strategy," and thus are not protected by the attorney-client privilege.

* The term “in camera” refers to a closed and private session of a court or some other tribunal. As used here, it refers to the review of the documents in question by the court in his or her chambers, the public being excluded from that proceeding.

Click HERE to access the Appellate Division's ruling.

 

Arbitration award challenged in a CPLR Article 75 proceeding confirmed

The Appellate Division unanimously reversed a Supreme Court's decision granting Plaintiff's petition challenging an arbitration award and remanding the matter for a new hearing before a different arbitrator. The court then reinstated initial arbitrator's determination and penalty imposed "on the law".

The Plaintiff in the instance action was the subject of a prior disciplinary action involving charges of violating his employer's attendance rules. These charges were resolved by a written stipulation and agreement. The stipulation provided that [1] the charges were sustained; [2] that the Plaintiff would accept a "30 day suspension";  [3] agreement constituted a final warning "on time and attendance violations" and [4] the authority of the arbitrator adjudicating "any time and leave violations occurring within eighteen (18) months of the [date of the] stipulation," would be "limited to review of the charged misconduct, which if sustained would result in dismissal."

Prior to the expiration of this 18 month period Plaintiff was charged with [1] failing to report to work for 12 days and [2] abandonment of his position, in violation of his employer's Time and Leave Rules, which require that employees obtain prior approval for all leaves of absence, "except for such emergencies as death in immediate family and other substantiated unforeseeable occurrences."*

At the hearing which followed the Plaintiff testified that he was absent to care for his daughter who is bipolar and had  attempted suicide on previous occasions.

However, the arbitrator found that the documents offered by the Plaintiff in justification of his absences consisted of [1] a note signed by a physician indicating  that the Plaintiff's daughter sought treatment at an urgent care on the dates of Plaintiff's absence; and [2] did not include a diagnosis or any specific supervision or treatment recommendations other than Plaintiff's daughter should "refrain from going to work and school for a certain number of days."

This, said the arbitrator, neither serve to substantiate the level of care Plaintiff's daughter required nor that she needed his constant presence.

The Appellate Division held that under these circumstances, "there was a plausible basis for the arbitrator's finding that Plaintiff's] excuse for his prolonged absence without prior approval was not sufficiently substantiated, despite the challenging circumstances presented by his daughter's mental health."

* Although Plaintiff "called in" to report he would be absent from work each day, he did not obtain prior approval for any of these absences.

Click HERE to access the text of Appellate Division's ruling.

 

May 9, 2022

A writ of mandamus seeking to compel a public officer to perform a certain act will not be issued if the act is discretionary in nature

Plaintiffs, who are teachers and professional staff employed by a school district [Respondent], commenced this CPLR Article 78 proceeding seeking a writ of mandamus* to compel Respondent to offer courses and sequences in the arts during the school day and equitably throughout the school district "in accordance with regulations promulgated by the New York State Commissioner of Education.

Supreme Court dismissed Plaintiffs' petition and Plaintiffs appealed.

The Appellate Division, noting that a writ of mandamus "is available to compel a governmental entity or officer to perform a ministerial duty, explained that the writ "does not lie to compel an act which involves an exercise of judgment or discretion" and citing Matter of Brusco v Braun, 84 NY2d 674, explained that such a writ is "an extraordinary remedy that is available only in limited circumstances."

In this instance, opined the court, Supreme Court "properly determined that mandamus to compel does not lie" as the regulations relied on by Plaintiffs provide, in relevant part, that a school district "shall offer students the opportunity to complete a three- or five-unit sequence in ... the arts and must provide that opportunity beginning in ninth grade."

In the words of the Appellate Division: "Although the regulations provide that the District must offer students the opportunity for an arts sequence, [Respondent] may exercise discretion in how to do so." The court then explained that "because the actions that [Petitioners] seek to compel are not ministerial in nature but discretionary, mandamus to compel does not apply."

Accordingly, the Appellate Division sustained Supreme Court's ruling.

* A writ of mandamus is one of a number of the ancient “common law” writs and is granted by a court to compel an official to perform acts that such an official is duty-bound to perform. Other such ancients writs include the writ of prohibition, issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction"; the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of  quo warranto,” which requires a person or body to show by what warrant, office or franchise, held, claimed, or exercised, with respect to that individual or entity performing a particular act or omission. New York State's Civil Practice Law and Rules [CPLR] sets out the modern equivalents of the surviving ancient writs.

Click HERE to access the Appellate Division's decision posted on the Internet.


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