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January 03, 2018

A Freedom of Information demand may trump an agreement to keep some or all of the terms of a disciplinary action settlement "confidential"

A Freedom of Information demand may trump an agreement to keep some or all of the terms of a disciplinary action settlement "confidential"
Santostefano v Middle Country Cent. Sch. Dist., 2017 NY Slip Op 09188, Appellate Division, Second Department

Guy Santostefano, employed as an educator by the Middle Country Central School District [District] In May 2015, was served with disciplinary charges pursuant to Education Law §3020-a. In August, 2015, Santostefano entered into a settlement agreement with the District resolving the charges, which agreement required Santostefano to resigned from the District effective August 6, 2015, whereupon the District would withdraw the charges it had filed against Santostefano.

In January 2016, Santostefanocommenced an action to vacate the settlement agreement alleging, in effect, that the terms of the settlement agreement permitting the District to disclose to Santostefano's prospective employers that Santostefano was brought up on disciplinary charges had caused harm to his career. Santostefano also alleged, among other things, that he was fraudulently induced into executing the settlement agreement.

The District asked Supreme Court to dismiss Santostefano'scomplaint based on his failure to timely serve a notice of claim, and for failure to state a cause of action. Supreme Court granted the District's motion and Santostefano appealed.

As to Santostefano's failure to serve a notice of claim, the Appellate Division, noting that "In general, the service of a timely notice of claim pursuant to Education Law §3813(1) is a condition precedent to the commencement of an action or proceeding against a school district, and failure to comply with this requirement is a fatal defect [except] when a litigant seeks only equitable relief, or commences a proceeding to vindicate a public interest."

Here, said the court, Santostefanosought to vindicate a private right, Supreme Court properly granted the District's motion to dismiss his complaint for failure to timely serve a notice of claim.

Addressing this issue of Santostefano's claim that he had been "fraudulently induced into entering into the settlement agreement, the Appellate Division observed that "To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR §3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law." Here, said the court, the settlement agreement "utterly refuted" Santostefano's factual allegations and "conclusively established a defense to the complaint as a matter of law" as the settlement agreement conclusively established a defense to the allegations that Santostefanowas fraudulently induced into entering into the settlement agreement by the District's oral representations, as those allegations were barred by the specific disclaimer provisions contained in the settlement agreement.

With respect to disclosing the terms of a settlement agreement resolving a disciplinary action, is does such an agreement trump a Freedom of Information demand to disclose the terms of the disciplinary settlement?

Consider the ruling in LaRocca v Jericho UFSD, 220 AD2d 424.

In LaRocca, the Jericho 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 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 Supreme Court dismissed LaRocca’s petition [LaRocca v Jericho UFSD, 159 Misc2d 90], the Appellate Division reversed, explaining 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 Appellate Division 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 public interest.”

In contrast, however, the court opined that where a settlement agreement provided that the parties would keep its terms “confidential,” its subsequent disclosure pursuant to FOIL does not necessarily excuse a party breaching other terms and conditions unrelated to such disclosure set out in the agreement [see Gosden v Elmira City School District, 90 AD3d 1202]. The settlement agreement targeted in LaRocca 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.

Another decision, Anonymous v Board of Education of the Mexico Central School District, 62 Misc 2d 300, 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. In Mexico 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.

In addition, State Education Law §1133.1 provides that 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 Article 23-B of the Education Law in return for the resignation or voluntary suspension from his or her position of such person, against whom the allegation is made.

The Santostefano 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 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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