Artificial Intelligence [A.I.] is not used, in whole or in part, in the preparation of summaries of judicial and quasi-judicial decisions posted on the Internet by NYPPL.

September 22, 2023

Essentials concerning an agency's denial of a Freedom of Information Law request

The County and its Assessment Review Commission [County] rejected a Freedom of Information Law [FOIL] request for certain records submitted by an individual [Petitioner]. County contended the records demanded were "intra-agency materials" within the meaning of FOIL and thus could be denied as "exempt" pursuant to Public Officers Law §87(2)(g). 

Petitioner initiated a CPLR Article 78 proceeding to compel the production of the records Petitioner sought, contending the records were factual data and not in the nature of an opinion, advice, or recommendation. Supreme Court granted Plaintiff's petition to produce the records demanded and County appealed . 

The Appellate Division affirmed the Supreme Court's ruling, with costs. In sustaining the Supreme Court's ruling the Appellate Division observed:

1. "FOIL imposes a broad duty on government agencies to make their records available to the public" citing Matter of Madeiros v New York State Educ. Dept., 30 NY3d 67, and Matter of Tuckahoe Common Sch. Dist. v Town of Southampton, 179 AD3d 929;

2. Such records court, are "presumptively open for public inspection and copying," unless they fall within an enumerated statutory exemption set out in Public Officers Law §87;

 N.B. There are other statutory exemptions to disclosing government records.*

3. "FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose" in support of a FOIL request as the underlying premise is that "the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government";

4. "FOIL's statutory exemptions to disclosure "are to be narrowly interpreted so that the public is granted maximum access to the records of government"; and 

5. It is the agency's burden "to demonstrate that the requested material 'falls squarely within a FOIL exemption".**

Rejecting County's reliance on exemptions authorized by FOIL with respect to the material sought in response to Plaintiff's FOIL application, the Appellate Division held that Supreme Court correctly determined that the information Plaintiff requested constituted "objective information," distinguishable from "opinions, ideas, or advice" and thus Supreme Court properly granted Plaintiff's Article 78 petition to compel County's production of the records Plaintiff requested.

* See, for example, Education Law, §1127 [Confidentiality of records] and §33.13, Mental Hygiene Law [Clinical records; confidentiality].

** See, also; Matter of Madeiros v New York State Educ. Dept., 30 NY3d at 74; and Matter of Baez v Brown, 124 AD3d 881, at 883.

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


September 21, 2023

Covid-19 - Tests and latest statistics reported

CNN reports the US government will relaunch a program to provide free Covid-19 home tests to Americans as new variants continue to alarm health officials. US households can order four free tests from starting Monday. The relaunch of the program comes as Covid-19 hospitalizations have been on the rise in the US since July, with weekly admissions now more than triple what they were two months ago.

Click the text highlighted in color for the most recent COVID-19 data posted on the Internet by NYPPL's COVID-19 consultant Isaac Michaels.


N.B.: Michaels updates the analyses routinely as the respective underlying data are updated. His website serves as a valuable resource for those interested in epidemiology and data science.


Click HERE to access Michaels' site on the Internet.




Two recent decisions published by the New York City Office of Administrative Trials and Hearings

Decision 1.

New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge [ALJ] Kara J. Miller considered the Agency's request that a community coordinator [CC] charged with violating a previously issued warning memo* and making threats of harm or violence to agency staff members be terminated from the position.

Judge Miller found that CC made threatening comments to his supervisors and colleagues, including referencing his access to guns and repeated attempts to find out when an office gathering would take place via emails sent to his supervisors and text messages to his personal therapist, which were subsequently forwarded to the Agency’s Equal Employment Opportunities Office. The text message referenced an upcoming office holiday party, instructed CC's therapist to look for him on the news, and stated, “The System has failed me so it will be punished.”

Finding CC guilty of the charge of making threats of harm or violence toward his co-workers, the ALJ recommend the Agency terminate CC’s employment. 

* ALJ Miller dismissed the disciplinary charge alleging CC violated "a warning memo", finding that the Agency failed to properly introduce the warning memo into evidence and failed to allege specifics as to how CC violated the warning memo.

Click HERE to access the text of Judge Miller's decision posted on the Internet.


Decision 2. 

OATH Administrative Law Judge Tiffany Hamilton recommended termination of employment for a correction officer [CO] who engaged in "undue familiarity" with individuals in custody and other related misconduct. 

Judge Hamilton found:

[1] CO passed notes between a male person in custody (BL), and a female person in custody (TG), who occupied holding pens across the hallway from one another;

[2] failed to look inside BL’s holding pen when removing TG from that pen approximately 50 minutes later; and

[3] Failed to submit a report regarding sexual contact between the said two persons in custody; and

[4] CO did not deny the alleged misconduct charged but argued that her actions did not warrant termination.

The ALJ, noting that CO's remorse for her conduct and the absence of CO being the subject of any prior disciplinary action in the record, nevertheless concluded that termination was warranted because CO's conduct demonstrated "several fundamental lapses in judgment, an inefficient performance of duties, and untrustworthiness" and recommended CO impose the penalty of dismissal from service as requested by the Appointing Authority.

Click HERE to access the text of Judge Hamilton's decision posted on the Internet.


 A Reasonable Disciplinary Penalty - For information and access to a free excerpt of the material presented in this New York Public Personnel Law e-book, click HERE



September 20, 2023

Former employees of a candidate's election campaign organization challenged their termination after the candidate's withdrawal from the campaign

Plaintiffs-Appellants in this appeal to the United States Court of Appeals, Second Circuit, are fifty former field employees of defendants "Michael Bloomberg and Mike Bloomberg 2020, Inc." [Campaign], which sought to promote and secure the Democratic presidential nomination for Michael Bloomberg.

Plaintiffs contended that Campaign recruited them to the job by promising employment through November 2020, but reneged on that promise when the Campaign dismissed Plaintiffs shortly after Bloomberg withdrew from the race in March of 2020. Plaintiffs, alleging "fraudulent inducement and promissory estoppel", challenged a federal district court’s dismissal of their complaint, with prejudice and without leave to amend.

The Circuit Court said it reviewed de novo "both the district court’s dismissal under Rule 12(b)(6) and its denial of the request to amend [the complaint] on the basis of futility," citing Chambers v. Time Warner, Inc., 282 F.3d 147,  and Panther Partners Inc. v. Ikanos Commc’ns, Inc., 681 F.3d 114.

Concluding that "(1) Plaintiffs are unable to prove the reasonable reliance required for their claims because of the at-will nature of their employment agreement,* and (2) Plaintiffs would not be able to survive dismissal even if granted leave to amend", the Circuit Court sustained the district court's ruling.

* A footnote, Footnote 4, in the Circuit Court's decision notes Campaign's offer of employment letter states “[t]he nature of your employment at the [Campaign] is and will continue to be ‘at will,’ as defined by applicable law, meaning that either we or you may terminate your employment at any time, with or without notice and with or without cause, for any reason or for no reason.” Further, observed the court, Campaign's employee handbook states “[y]our employment with the [Campaign] is ‘at will,’ which means that it is for no definite period of time, and may be terminated at any time by either you or the [Campaign], with or without cause, notice or procedural requirements.”

Click HERE to access the text of the Circuit Court's decision posted on the Internet.


September 19, 2023

A Veterans’ Day 2023 advisory memorandum has been issued by the New York State Department of Civil Service

The Department of Civil Service has issued Attendance and Leave Advisory Memorandum 2023-04 addressing Veterans’ Day, November 11, 2023, noting that a number of State Departments and  agencies have inquired about Veterans’ Day, which this year will fall on Saturday, November 11, 2023. 

The Department reports that it has been advised by the Office of Employee Relations that another day will not be designated to be observed as a holiday by State employees in lieu of November 11, 2023.

The text of Advisory Memorandum 2023-04 is posted on the Internet at:

The Department of Civil Services has made a version of Advisory Memorandum 2023-04 available in PDF for those wishing to print it.

Click HERE to access the PDF version of Advisory Memorandum 2023-04 posted on the Internet.

Earlier Attendance and Leave bulletins issued by the Department of Civil Service are posted on the Internet at .





Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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 members of the NYPPL staff 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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