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Friday, January 22, 2010

Processing of an administrative appeal does not toll the running of a statute of limitations

Processing of an administrative appeal does not toll the running of a statute of limitations
Matter of Yolanda Strong v New York City Dept. of Educ., 62 AD3d 592

State Supreme Court, New York County, Leland G. DeGrasse, Jr., granted Yolanda Strong’s petition challenging the New York City Department of Education terminating her employment as a probationary per diem substitute teacher.

The Appellate Division reversed Judge DeGrasse’s ruling, holding that Strong’s lawsuit was untimely as it had been commenced more than four months after the Education Department advised Strong of its determination that she had violated its regulations by “using force as a disciplinary technique.” The Department also told Strong that her name would "remain on the Ineligible Inquiry list,* terminating [her] services with [the Department]."

Critical to the resolution of this appeal was the Appellate Division’s holding that the time limits for Strong commencing her lawsuit challenging her dismissal “was not extended by her administrative appeal of [the Department of Education’s] determination.”

The court also addressed a related issue: A finding by the Unemployment Insurance Appeal Board that Strong had not engaged in corporeal punishment. Such a finding, said the Appellate Division, “lacks preclusive effect.”

* Placing an individual’s name on the "Ineligible/Inquiry" list maintained by the New York Department of Education bars that individual from employment at any DOE school while his or her name remains on such list [McPherson v. New York City Dep't of Education, 457 F.3d 211].

Wednesday, January 06, 2010

Confidentiality of disciplinary records based on an agreement not to disclose their contents

Confidentiality of disciplinary records based on an agreement not to disclose their contents

LaRocca v Jericho UFSD, 220 AD2d 424

The School District had filed disciplinary charges against the principal of one of its schools. Subsequently the Jericho School Board authorized its superintendent to negotiate a settlement that would dispose of the matter. A settlement was reached and the Board adopted a motion withdrawing its charges against the principal without prejudice.

Anthony LaRocca, vice-president of the Jericho Teachers Association, asked for a copy of the settlement agreement on behalf of the teachers supervised by the principal. LaRocca’s request was denied on the grounds that (a) providing the teachers with a copy “would constitute an unwarranted invasion of personal privacy” and (b) the document relates to “intra-agency or inter-agency materials which the School District is not required to disclose.”

LaRocca then sued under the Freedom of Information Law [FOIL] (Article 6, Public Officers Law), contending that all records of a public agency are “presumptively accessible” and the settlement agreement did not fall within any of the recognized exceptions set out in FOIL.

Although a Supreme Court justice dismissed LaRocca’s petition [LaRocca v Jericho UFSD, 159 Misc2d 90], the Appellate Division reversed, ruling that the settlement agreement did not constitute an “employment history” as defined by FOIL and therefore is presumptively available for public inspection.

Significantly, the Appellate Division said that “as a matter of public policy, the Board of Education cannot bargain away the public’s right to access to public records.” The court ruled that the settlement agreement or any part of it providing for confidentiality or purporting to deny the public access to the document “is unenforceable as against the pubic interest.”

Moreover, the decision indicates that a public employer may not, by private agreement, limit the public’s right to access to records which are otherwise subject to disclosure under FOIL, citing Anonymous v Board of Education of the Mexico Central School District, 62 Misc 2d 300. In the Mexico Central School District case the court said that an agreement to keep secret that to which public has a right of access under FOIL unenforceable as against public policy.

There may be some aspects of a disciplinary settlement confidentiality agreement that is enforceable, however. In LaRocca, the settlement agreement contained references to charges that the principal denied or were not admitted, together with the names of certain teachers. The Appellate Division ruled that disclosure of such parts of the settlement agreement would constitute an unwarranted invasion of privacy within the meaning of FOIL.

The Court said that the settlement agreement must be redacted [censored] to eliminate such references -- i.e., the disputed charges and the names of the teachers -- prior to its release to LaRocca.

However one member of the Appellate Division panel reviewing the appeal rejected the concept of “protecting” confidentiality in such cases by means of redaction of some of the contents of the records. Judge O’Brien said that in his view, “Although disclosure of the charges might cause some embarrassment, that is an insufficient basis under FOIL to deny disclosure.”

Sometimes the employer will agree not to reveal the reasons underlying its demanding the employee’s resignation to potential employers in the future. The employer’s ability to agree that the reasons leading to the demand for the resignation shall remain “confidential” has been tempered, however.

In response to the so-called “silent resignation” in cases involving “child abuse in an educational setting” by a school employee, the New York State Legislature has declared that making an agreement “to maintain confidentiality” in resignation situations where allegations of child abuse have been leveled against an individual is against the public policy of this State.

Education Law Section 1133 bars a school administrator or superintendent from agreeing to withhold the fact that an allegation of child abuse in an educational setting was involved in the separation of the employee or volunteer in return for the individual’s resignation or agreement to a suspension from his or her position. A violation of Section 1133 is a Class D felony and, in addition, “shall also be punishable by a civil penalty not to exceed $20,000.”*

In addition, Subdivision 3 of Section 1133 provides that “[a]ny superintendent of schools who in good faith reports to law enforcement officials information regarding allegations of child abuse or a resignation as required by this article shall have immunity from any liability, civil or criminal, which might otherwise result by reason of such actions.”

With respect to the availability of public documents pursuant to FOIL, it is well settled that FOIL imposes a broad duty of disclosure on government agencies as noted by the Court of Appeals in Fink v Lefkowitz, 47 NY2d 567.

The general rule: All agency records are presumptively available for public inspection and copying, unless they fall within 1 of 10 categories of exemptions that, as a matter of the exercise of discretion, permit agencies to withhold certain records or are specifically excluded from disclosure by statute.

In other words, the fact that certain records may properly be viewed as falling into an “exemption” category does not require that the custodian bar the disclosure of the material in response to a FOIL inquiry. The statute merely permits the agency to elect to withhold disclosing an “exempt” document or record.

The Court of Appeals has repeatedly stated that FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government.

Expressly exempted from mandatory disclosure are records that “if disclosed would constitute an unwarranted invasion of ... privacy” (Public Officers Law Section 87[2][b]), including but not limited to “disclosure of employment, medical or credit histories or personal references of applicants for employment.”

Although it is clear that a record is not considered an “employment history” merely because it records facts concerning employment, the term “employment history” for purposes of FOIL exemptions is not defined in the statute, nor well interpreted by case law.

However, as the court said in Hanig v State of New York Dept. of Motor Vehicles, 168 AD2d 884, aff’d 79 NY2d 106, its companion term “medical history” has been defined as “information that one would reasonably expect to be included as a relevant and material part of a proper medical history.”

Presumably the court meant that term “employment history” means that “information” that one would reasonably expect to be included as a relevant and material part of a proper personnel record system.

Robert J. Freeman, Executive Director, Committee on Open Government, has addressed “non-disclosure agreements.” His views are set out in the “Staff Advisory Opinion” posted on the Internet at: http://www.dos.state.ny.us/coog/ftext/f14114.htm

* Education Law §1133 provides: Unreported resignation against public policy. 1. A school administrator or superintendent shall not make any agreement to withhold from law enforcement authorities, the superintendent or the commissioner, where appropriate, the fact that an allegation of child abuse in an educational setting on the part of any employee or volunteer as required by this article in return for the resignation or voluntary suspension from his or her position of such person, against whom the allegation is made.

Monday, January 04, 2010

Impartiality of arbitrators

Impartiality of arbitrators
Meehan v Nassau Community College, App. Div., 251 A.D.2d 417, Motion for leave to appeal dismissed, 92 N.Y.2d 946

This posting summarizes a number of related decisions involving the same parties considered by the Appellate Division.

Article 75 of the Civil Practice Law and Rules [CPLR] sets out very limited grounds upon which a party who has either participated in an arbitration, or has been served with a notice of intention to arbitrate, may ask the courts to vacate or modify the award. In order to vacate an award, the court must find that the rights of the moving party were prejudiced by:

1. Corruption, fraud or misconduct in procuring the award; or

2. Partiality of an arbitrator appointed as a neutral, except where the award was by confession; or

3. An arbitrator, or agency or person making the award exceeded his or her power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or

4. The failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection.

Nassau County Community College sought to overturn two arbitration awards under Article 75.

The first, referred to by the Appellate Division as the “overload arbitration,” involved a complaint by the Nassau County Community College Adjunct Faculty Association that the college had assigned certain “overload courses” to members of the full-time faculty, rather than employ members of the adjunct faculty to teach these courses.

The second award, the “History Department” arbitration, involved persons who lacked certain academic credentials teaching in that department.

In both cases the college asked the court to vacate the award because one member of a three-person arbitration panel selected by the parties had direct personal knowledge of the disputed facts underlying the grievances and that this arbitrator testified concerning these facts during the arbitration. This conduct by the arbitrator, the College urged, justified overturning the arbitration panel’s award in favor of the Association.

The contract grievance procedure relevant between the parties provided that the arbitration panel would consist of “one member selected by the College Administration, one selected by the Adjunct Faculty Association, and a third selected by mutual consent.”

According to the ruling, the Association’s designated member of the arbitration panel testified at the arbitration that because of “the assignment of various overload courses, more senior adjunct instructors had been `bumped’ by less senior full-time instructors” as well as other matters at issue. The College argued that “[a]rbitrator Loiacono demonstrated partiality and engaged in misconduct when he testified in support of the [union’s] position” at the arbitration.

In “overload courses” award the Appellate Division rejected the college’s argument, holding that “that the CPLR does not authorize vacatur on this ground.” According to the Appellate Division, the terms of CPLR 7511(b)(ii), which specify that the “partiality” of an arbitrator “appointed as a neutral” may be a basis for vacatur, imply that the “partiality” of a party-designated member of an arbitral board may not be the basis for vacatur.

The Appellate Division said “a party-designated arbitrator may in fact be `partial’“ and that by itself this is not grounds for vacating an arbitration award. Nor did the Appellate Division have any problem with a panel member testifying at the hearing.

This ruling may have a significant impact in Section 3020-a disciplinary appeals, which now are processed pursuant to CPLR Article 75 rather than CPLR Article 78 as was the case before Section 3920-a was amended in 1984. Syquia v Harpursville Central School District, 568 NYS2d 263 involved the alleged partiality of members of a disciplinary panel convened under the “old” Education Law Section 3020-a.

The attorney for Harpursville had advanced the argument that “a 3020-a hearing is, and is intended to be, something other than a fully impartial fact finding hearing, and that the panel members selected respectively by the Board of Education and by the teacher are advocates for the party respectively selecting them, with only the Chairman intended to be impartial.” A state Supreme Court justice said that this was a misunderstanding in educational circles, “if such, in fact, exists.”

The court declared that it was a “misapprehension that in 3020-a hearings the panel member selected by the Board is the `Board’s representative,’ and the panel member selected by the teacher is the `teacher’s representative,’ and only the Chairman is expected to be neutral and impartial.” According to the Meehan decision, this is no longer the case.

In the Nassau decision, [decided pursuant to Article 75 of the CPLR, rather than Article 78, the court held that a party-designated arbitrator may, in fact, be partial. Accordingly, said the court, Mr. Loiacono’s participation in the arbitration proceedings in the dual capacity of arbitrator and witness may serve as a basis for vacatur only if his behavior in this regard can be properly characterized as constituting corruption, fraud, or misconduct within the meaning of CPLR Section 7511[b][1][i]. Holding that Loiacono’s behavior could not be so characterized, the court confirmed the award.

Nor was the “overload course” award held to be violative of public policy.

According to the decision, a collective bargaining agreement limiting the college’s ability to assign courses in excess of a specified amount did not interfere with its ability to establish qualifications for its faculty.

In contrast, in the “History Department” aspect of the appeal the Appellate Division decided that the award, “which requires the college to reinstate the grievants, although it is undisputed that they were unqualified to teach courses in the History Department because of their lack of certain academic credentials,” should be vacated. This, however, was not because of Loiacono’s testimony and his participation as an arbitrator in the arbitration proceedings. Rather, said the court, the award had to be vacated because it violates public policy.

The court explained that although not every arbitration under a Taylor Law agreement “that threatens to limit the management prerogatives [of a public employer] is violative of public policy,” here the award’s mandate affected the college’s authority to establish the qualifications of its adjunct faculty and thereby affect the maintenance of academic standards in the classroom.


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