Clear and convincing evidence held to support a challenged administrative decision

The driver [Plaintiff] of a New York City Transit Authority bus was issued a summons for alleging seriously injuring a  pedestrian walking in a marked crosswalk with the right of way as the result of Plaintiff's failing to exercise due care. A New York State Department of Motor Vehicles [DMV] Administrative Law Judge [ALJ] found clear and convincing evidence was presented in support of the allegation and the DMV's Traffic Violations Bureau Appeal Board affirmed the ALJ's ruling and the penalty imposed: suspension of Plaintiff's driver's license for six months.

Plaintiff initiated a CPLR Article 78 proceeding challenging the DMV's determination. A divided Appellate Division granted Plaintiff's petition, annulled and vacated DMV's determination, and reinstated Plaintiff 's driver's license.* DMV appealed and the Court of Appeals reversed the Appellate Division's decision.

The Court said that the evidence at the administrative hearing included [1] an investigative report from the accident-reconstruction specialist who investigated the incident, [2] a report from a police officer who responded to the scene, and [3] a statement provided by the Plaintiff after the accident.

Noting that the accident-reconstruction specialist testified at the hearing, reiterating his report's conclusion concerning the victim's injuries, the Court of Appeals opined that DMV's determination was supported by substantial evidence in the record  that Plaintiff had caused serious physical injury to a pedestrian as the result of Plaintiff's failing to exercise due care in operating the bus in violation of §1146(c) of New York State's Vehicle and Traffic Law.

The judgment of the Appellate Division was reversed, with costs, Plaintiff's petition denied, and the determination of the New York State Department of Motor Vehicles reinstated.

* See 159 AD3d 607.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_03564.htm

Processing Freedom of Information Law requests for disciplinary records of law enforcement personnel involving "unsubstantiated and unfounded complaints against an officer"

The New York State Committee on Open Government issued an advisory opinion, FOIL AO 19775, in response to an inquiry concerning a public employer's obligation with respect to responding to requests for disciplinary records of law enforcement personnel involving "unsubstantiated and unfounded complaints against an officer, or if the employer is obligated to disclose all complaints against an employee regardless of outcome."

FOIL AO 19775 concludes that "based on [the Committee's] prior analyses of the disclosure requirements relating to disciplinary records of government employees generally, when allegations or charges of misconduct have not yet been determined or did not result in disciplinary action, the records relating to such allegations may in [the Committee's] view be withheld where the agency determines that disclosure would result in an unwarranted invasion of personal privacy. In addition, to the extent that charges are dismissed, or allegations are found to be without merit, [the Committee] believe that those records also may be withheld based on considerations of privacy." 

The full text of FOIL AO 19775 is set out below. 

FOIL AO 19775

By electronic mail only

July 27, 2020

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence, except as otherwise indicated. 

Dear: 

I am writing in response to your request for an advisory opinion regarding the obligations of the City of Syracuse (the "City") under the Freedom of Information Law (FOIL) in connection with requests for law enforcement disciplinary records, specifically relating to unsubstantiated and unfounded complaints against a police officer. In your inquiry, you note that Public Officers Law §86(6)(a) defines “law enforcement disciplinary records” to include “complaints, allegations, and charges against an employee.” 

You ask whether “an employer of a law enforcement employee could lawfully withhold unsubstantiated and unfounded complaints against an officer, or if the employer is obligated to disclose all complaints against an employee regardless of outcome.” I note that yours is the first, but not the only, inquiry we have received in recent weeks asking this question.

As you know, until very recently, personnel records of police officers, corrections officers, and paid firefighters that were used to evaluate performance toward continued employment were specifically exempted from disclosure by state statute: Civil Rights Law §50-a and, because of this, Public Officers Law § 87(2)(a). On June 12, 2020, however, Governor Andrew M. Cuomo signed into law Chapter 96 of the Laws of 2020 repealing Civil Rights Law §50-a and amending FOIL to add certain provisions relating to law enforcement disciplinary records. Where prior to June 12, 2020, access to personnel records of a police officer was governed by §50-a and the resulting FOIL exemption pursuant to §87(a)(2), ending the FOIL analysis immediately, access is now governed by FOIL alone.

As a general matter, FOIL is based upon a presumption of access. All records of an agency are available except to the extent that records or portions thereof fall within one or more grounds for exemption appearing in §87(2)(a) through (q) of the Law. Section 87(2)(b) of FOIL, a provision which until June 12, 2020, had not been applied to law enforcement disciplinary records because of Civil Rights Law §50-a, permits an agency to withhold records or portions of records which “if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article . . . .” As you note in your inquiry, the Committee on Open Government has frequently addressed issues relating to rights of access to disciplinary records of public employees pursuant to this subsection of the FOIL. 

In FOIL Advisory Opinion 17195, staff of the Committee opined that a record of an unsubstantiated or unfounded complaint may be withheld under FOIL where the agency determines such complaint would constitute an unwarranted invasion of personal privacy: 

The exception of significance is §87(2)(b), which authorizes an agency to withhold records insofar as disclosure would constitute “an unwarranted invasion of personal privacy.” Although the standard concerning privacy is flexible and may be subject to conflicting interpretations, the courts have provided substantial direction regarding the privacy of public employees. It is clear that public employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that they are required to be more accountable than others. The courts have found that, as a general rule, records that are relevant to the performance of one’s official duties are available, for disclosure in such instances would result in a permissible rather than an unwarranted invasion of personal privacy . . . . Conversely, to the extent that records are irrelevant to the performance of one’s official duties, it has been found that disclosure would indeed constitute an unwarranted invasion of personal privacy . . . . [W]hen allegations or charges of misconduct have not yet been determined or did not result in disciplinary action, the records relating to such allegations may, in my view, be withheld, for disclosure would result in an unwarranted invasion of personal privacy [see e.g., Herald Company v. School District of City of Syracuse, 430 NYS 2d 460 (1980)]. Further, to the extent that charges are dismissed or allegations are found to be without merit, I believe that they may be withheld based on considerations of privacy.

Committee staff have issued similar opinions in FOIL AO 19771, FOIL AO 16764, FOIL AO 12802, FOIL AO 12722, FOIL AO 11747, FOIL AO 9463 , and FOIL AO 7602. In sum, Committee staff have long advised that where an agency determines that a record of an unsubstantiated or unfounded complaint would, if disclosed (even in a redacted form (see, e.g., FOIL AO 19771)), constitute an unwarranted invasion of personal privacy, such record need not be disclosed. 

The new provisions of FOIL did not make changes to provisions concerning personal privacy as defined in §87(2)(b). Based on our long-standing interpretation that requires an agency to determine if an unsubstantiated or unfounded complaint against an employee would, if disclosed, constitute an unwarranted invasion of personal privacy, and absent language expressing that the legislature intended that law enforcement disciplinary records should enjoy less protection than the disciplinary records of other government employees, we do not impute such an intent. Moreover, while no court has yet issued an opinion formally answering the question whether unsubstantiated complaints against law enforcement personnel must be disclosed pursuant to FOIL, at least two have recently temporarily enjoined the disclosure of such complaints pending a final determination. [1]
 
In further support of this interpretation, there is a suggestion in the new FOIL provisions that some law enforcement disciplinary records, which the legislature calls “technical infractions” (FOIL §89(2-c)), enjoy greater(rather than less) protection than such infractions contained in the disciplinary records of other government employees. In other words, while there is some express language in the statute to render certain records of law enforcement agency employees less available than those of other government employees, there is nothing in the statute to suggest that the legislature intended that any of the records of law enforcement agency employees be more available than the records of other government employees. 

Accordingly, it is our opinion, in the absence of judicial precedent or legislative direction, that the law does not require a law enforcement agency to disclose “unsubstantiated and unfounded complaints against an officer” where such agency determines that disclosure of the complaint would constitute an unwarranted invasion of personal privacy, but also does not require an agency to withhold such a record. Rather, as with all of the FOIL exemptions except §87(2)(a), which no longer applies to this situation since the repeal of §50-a, an agency may, but not must, withhold as exempt a record meeting the criteria for such exemption. In light of the repeal of §50-a, a request for disciplinary records relating to a police officer must be reviewed in the same manner as a request for disciplinary records of any other public employee. As such, based on our prior analyses of the disclosure requirements relating to disciplinary records of government employees generally, when allegations or charges of misconduct have not yet been determined or did not result in disciplinary action, the records relating to such allegations may in our view be withheld where the agency determines that disclosure would result in an unwarranted invasion of personal privacy. In addition, to the extent that charges are dismissed, or allegations are found to be without merit, we believe that those records also may be withheld based on considerations of privacy. 

Thank you for your inquiry.

Very truly yours,

/s/ Shoshanah Bewlay

Shoshanah Bewlay
Executive Director

SVB/ko

FOIL-AO-f19775
19775

---

[1] See https://gothamist.com/news/federal-judge-blocks-release-nypd-misconduct-records-orders-nyclu-keep-records-secret(U.S. District Court for the Southern District of New York) and https://buffalonews.com/news/local/crime-and-courts/city-of-buffalo-blockedfrom-releasing-portions-of-police-disciplinary-records/article_2acfc25c-cde6-11ea-8d7f-3b130bc09a73.html(New York State Supreme Court).

Court holds a video of the event, together with the testimony given at his disciplinary hearing, was substantial evidence that the Petitioner was guilty of misconduct

A former New York City police officer [Petitioner] appealed his dismissal from his position with the New York City Police Department [Department] after a disciplinary hearing in which the hearing officer found that Petitioner wrongfully took money in the course of a police operation, concealed his actions from his fellow officers, and then twice made false statements in the course of an investigation into the incident.

The Appellate Division unanimously confirmed the Department's decision and dismissed Plaintiff's petition. The court noted that the Department's determination that Petitioner was guilty of misconduct was supported by substantial evidence as, in addition to video evidence of the incident, Petitioner's own testimony established that he took money and pocketed it during the course of a police operation and then failed to give the money to the arresting officer at the scene.

As the arresting officer had testified that Petitioner never subsequently gave the money in question to him, the Appellate Division said that the Department  "rationally concluded that [Petitioner's] actions as depicted on video, including turning away from the other officers while he pocketed the money, were inconsistent with [Petitioner's  claim he was attempting] merely to safeguard the money."

In addition, the court opined that the Department also rationally concluded that Petitioner's other explanations for his actions were not credible.

Addressing Petitioner's contention that the Department was bias against him, the Appellate Division explained that this argument was unavailing "in the absence of any proof that the outcome of the proceeding flowed from the alleged bias."

The court concluded that, under the circumstances, the dismissal of Petitioner from his employment with the Department did not shock its judicial conscience, citing Matter of Kelly v Safir, 96 NY2d 32, among other decisions.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_03472.htm

Filing a claim for workers' compensation benefits death benefits in cases where the cause of death was suicide

An employee [Decedent] sustained a work-related injury to his head and his claim for workers' compensation benefits was thereafter established. Subsequently his family feared that Decedent had attempted suicide and had him hospitalized. Discharged from the hospital, Decedent died by suicide five days later.

Decedent's surviving spouse [Petitioner] filed a claim for workers' compensation death benefits. After conducting a hearing, a Workers' Compensation Law Judge [WCLJ] granted the claim. The Workers' Compensation Board [Board] affirmed the WCLJ's findings and determination. The Appointing Authority, and its third-party administrator [hereinafter collectively [Employer] appealed the Board's decision.

Initially addressing a procedural issue, the Appellate Division rejected the Employer's contention that the Board violated Workers' Compensation Law §23 when it adopted the findings of the WCLJ without a statement setting forth the facts upon which it had relied*.

Turning to the merits of Employer's appeal, the court, citing Matter of Delacruz v Incorporated Vil. of Freeport, 175 AD3d 1739, noted that "[i]t is well settled that workers' compensation death benefits may not be awarded 'when the injury has been solely occasioned ... by wil[l]ful intention of the injured employee to bring about the injury or death of himself [or herself].'" Further, opined the Appellate Division, "[W]orkers' compensation death benefits may be awarded for a suicide only where the suicide results from insanity, brain derangement or a pattern of mental deterioration caused by work-related injury."

In Workers' Compensation claims cases involving a suicide the Appellate Division said that the rule is that "the causal relationship between an industrial accident and a resulting mental condition need not be direct and immediate. It is sufficient that the industrial accident is a contributing cause, even if it precipitated [the] decedent's preexisting mental condition."

Finding that the Board's determination that Decedent's suicide was causally related to his work injury was supported by substantial evidence, the Appellate Division said it would not disturb the Board's determination.

* §23 of the Workers' Compensation Law provides that Board decisions shall include "a statement of the facts which formed the basis of its action on the issues raised."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_04222.htm

Appeal to the Commissioner of Education dismissed where Petitioner initiated litigation raising substantially similar claims and seeks substantially similar relief

Interim Commissioner of Education Shannon Tahoe* dismissed Petitioner's appeal challenging the  Board of Education's appointing a new Superintendent founded on allegations that the Board violated certain of its own policies in appointing the Superintendent. Without addressing the merits of Petitioner's appeal, the Commissioner dismissed the appeal "given the pendency of a related civil action."

Commissioner Tahoe explained that Petitioner commenced an action in Supreme Court, Westchester County raising substantially similar claims, and seeking substantially similar relief, as in the instant appeal.** In the civil action, Petitioner asked the court, among other things, to [1] vacated the Board's appointment of a new superintendent and [2] compel the Board to follow its own policies and procedures in the appointment of a new superintendent.

Citing Appeal of Moriarty, 57 Ed Dept Rep, Decision No. 17,265, among other decisions of the Commissioner of Education, Commissioner Tahoe said "Under these circumstances, it would be contrary to the orderly administration of justice for the Commissioner to decide claims that [P]etitioner has elected to raise in Supreme Court, particularly where she seeks the same relief that she seeks in this proceeding," and dismissed Petitioner's appeal.

* Commissioner Tahoe has submitted her resignation as interim Commissioner, to take effect August 13, 2020, to the Board of Regents.

** See Minaya v. City School District of New Rochelle., et. al., Index. No. 67873/2019, filed Oct. 26, 2019.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume60/d17879

Nonfeasance by a public official

A decision by New York State’s highest court sustained the conviction of a police officer who had taken part in a plot to prevent the arrest of a teenager accused of burglary and whose father had personal connections to the officer's Police Department.

The Court of Appeals said that it is not “discretionary” for government officials to abdicate their responsibility to pursue wrongdoing if that decision is being made to benefit someone personally.

The court explained that “... a public servant’s knowing refusal to perform a mandatory action coupled with an intent to obtain a benefit constitutes nonfeasance,” in upholding the police official’s conviction. In the words of the court, “... when a public servant, with the intent to obtain a benefit, knowingly refuses to perform a discretionary duty, the performance of which is so obviously fundamental to accomplishing the goals of the public servant’s office, that refusal cannot legitimately be understood to be an exercise of discretion; rather, it constitutes an abuse of discretion, which equates to nonfeasance.”

Other such transgressions include misfeasance in office, acting unlawfully, and malfeasance in office, performing official acts badly.

The decision is posted on the Internet at: 
https://www.leagle.com/decision/innyco20170209276

The anatomy of an application for accidental disability retirement benefits

The genesis of this case was the determination by the Medical Board of the New York City Fire Department Pension Fund [Medical Board] that although the applicant [Plaintiff] for accidental disability retirement benefits [ADR] was disabled, his disabling condition was not the result of a work-related injury. The Medical Board's decision was adopted by the Board of Trustees of the New York City Fire Department Pension Fund [Board of Trustees] adopted the recommendation of the Medical Board and denied the petitioner's application for ADR in a tie vote.

Plaintiff commenced a CPLR Article 78 proceeding to review the determination of the Board of Trustees. Supreme Court denied Plaintiff's petition and dismissed the proceeding, finding that the determination was supported by credible medical evidence and thus was not arbitrary and capricious. Plaintiff appealed the Supreme Court's ruling.

The Appellate Division said agreed with the Supreme Court's determination rejecting Plaintiff's petition and dismissing the proceeding, explaining that in Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, the Court of Appeals, indicating that a New York City firefighter is entitled to ADR benefits after a medical examination and investigation shows that the firefighter is physically or mentally incapacitated for the performance of city-service "as a natural and proximate result of an accidental injury received in such city-service."

The Appellate Division then described the procedure following in evaluating an application for ADR as involving a two-step process:

1. A medical examination of the applicant for ADR followed by a three-physician member pension fund Medical Board, "charged with passing upon all such required medical examinations and investigating all essential information in connection with a disability retirement application"; and

2. If the Medical Board concludes that the firefighter is disabled, it must then determine whether the disability is "a natural and proximate result of an accidental injury received in such city-service" and certify its recommendation on this issue to the Board of Trustees, which is ultimately responsible for retiring the city service member and determining the issue of service-related causation.

The court opined that the Board of Trustees is entitled to rely on the advisory opinion of the Medical Board regarding causation. However, the burden of establishing that a disability is causally related to a line-of-duty accident rests with the applicant for ADR benefits in the event the firefighter ADR benefits are denied.

In the event a vote by a Board of Trustees to retire a city service member under ADR results in a tie, the Board of Trustees is required to retire the member under Ordinary Disability Retirement [ODR] with ODR benefits. Significantly, in the event the firefighter challenges being placed on ODR by initiating a CPLR Article 78 proceeding, the reviewing court may not set aside the Board of Trustees' denial of accidental disability retirement resulting from such a tie vote unless the court determines that "as a matter of law on the record that the disability was the natural and proximate result of a service-related accident."

Under this standard, said the Appellate Division, "as long as there was any credible evidence of lack of causation before the Board of Trustees, its determination must stand."* Further, as the Appellate Division noted in Matter of Santoro v Board of Trustees of N.Y. City Fire Dept. Art.1-B Pension Fund, 217 AD2d 660, courts "cannot weigh the medical evidence or substitute their own judgment for that of the Medical Board."

The court said that the Medical Board's determination that the Plaintiff's disability was causally related to chronic degenerative joint disease was supported by credible evidence consisting of the operative report and other relevant medical records including an MRI report." The decision also notes that "the Medical Board provided an 'articulated, rational, and fact-based medical opinion' for how it came to its conclusion."

Although the Medical Board's findings differ from those of Plaintiff's surgeon, who found that it was likely that Plaintiff's condition "was causally related to work injuries and that [Plaintiff] may have exacerbated a pre-existing condition," the Appellate Division observed that "[w]here conflicting medical evidence and medical reports are presented to the Medical Board, it is solely within the province of the Medical Board to resolve such conflicts."

Further, opined the Appellate Division, "It was not arbitrary or capricious for the Board of Trustees to find that [Plaintiff] did not establish that his disability was the natural and proximate result of his line-of-duty accident" and the Board of Trustees was entitled to rely on the Medical Board's recommendation in voting to deny ADR benefits to the petitioner, and found that "there is no basis herein to disturb the Board of Trustees' determination."

* Credible evidence is evidence that proceeds from a credible source and reasonably tends to support the proposition for which it is offered and not merely a conclusion of law, nor mere conjecture or unsupported suspicion.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_03910.htm

Audits released by the New York State Comptroller

The audits listed below were released by New York State Comptroller Thomas P. DiNapoli during the week ending July 24, 2020.

Click on the text highlighted in color to access the full report.

School Districts:

Liverpool Central School District – Information Technology (IT) Assets (Onondaga County) District officials did not maintain complete and accurate hardware or software inventory records and did not perform comprehensive inventory counts. Auditors’ review of 529 purchased items, totaling about $448,000, found that 123 items, totaling $76,425, were not recorded in the district’s inventory records. Officials could not locate three of the 48 IT items auditors tested: a laptop and two cameras, totaling $1,444. In addition, the last comprehensive physical inventory count was conducted in 2003.

Putnam Central School District – Fund Balance Management (Washington County) The district’s surplus fund balance exceeded the statutory limit by 32.7 to 42.8 percentage points at the end of the last three fiscal years. Auditors determined appropriations were consistently overestimated resulting in increasing fund balance levels. The district did not use all of the fund balance appropriated to finance operations for fiscal years 2016-17 through 2018-19. The board has not adopted an adequate multiyear financial plan.

Wyandanch Union Free School District – Budget Review (Suffolk County) Significant estimated revenues and budgeted expenditures in the $71.7 million adopted budget for the 2020-21 fiscal year are not reasonable. District officials were unable to produce sufficient documentation that their appropriations for employee benefits, the re-institution of athletics program, and certain utilities are adequate. Additionally, overtime costs will need to be monitored closely to ensure they do not exceed budgeted appropriations. Consequently, the 2020-21 appropriations may be underbudgeted by at least $2.7 million. The district may not have sufficient resources to meet its financial obligations unless the superintendent and board implement budget cuts in the 2020-21 budget.

Local government audits:

Village of Arkport – Water Fund Financial Operations (Steuben County) Auditors found complete and accurate accounting records were not maintained, the modified accrual basis of accounting was not used and interfund activity was not properly reported. As a result, the board could not adequately monitor the water fund’s financial operations. The board did not properly segregate water billing and collection duties or establish compensating controls. In addition, late penalties were not properly assessed on unpaid water bills.

Cortlandville Fire District – Credit Cards (Cortland County) The board did not ensure that certain credit card charges were supported, for appropriate purposes or paid timely. In addition, the board approved credit card charges totaling $18,124 without adequate supporting documentation. The district also incurred penalty charges totaling approximately $390 for late payments and $190 for interest.

Hudson Housing Authority – Information Technology (IT) (Columbia County) Authority officials did not ensure that IT systems were adequately secured and protected against unauthorized use, access and loss. The board did not adopt an acceptable use policy, and officials did not provide IT security awareness training. In addition, the authority did not have adequate online banking agreements.

Evaluating the credibility of testimony given at a disciplinary hearing

Three New York City correction officers were served with disciplinary charges alleging that each had submitted false or misleading reports concerning retaliatory force used by a captain against an inmate. 

New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge Astrid B. Gloade found that two of the correction officers were in positions whereby they were able to observe the use of force by the captain and did not credit their claims that they did not witness the event. 

The third correction officer testified that he did not include the captain's use of force in his report because the inmate was able to prevent the captain's blows "from landing." Judge Gloade rejected the third correction officer's explanation, finding that the New York City Department of Correction’s "Use of Force Directive" requires that an attempted use of force by another officer on an inmate be reported regardless of whether the attempted use of force against the inmate was successful or not. 

The ALJ found that the three correction officers' failure to include the captain’s use of force  on an inmate in their respective incident reports rendered their reports incomplete and inaccurate and recommended that each officer be suspended without pay for 15 days as the disciplinary penalty to be imposed for their filing incomplete and inaccurate reports of the event. 

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/20_cases/20-156.pdf

Appointments to Governor Andrew M. Cuomo's administration confirmed by the Senate

On July 21, 2020 Governor Andrew M. Cuomo announced that the following nominations for appointments to his administration were confirmed by the Senate:

Steven M. Cohen was nominated by Governor Cuomo and confirmed by the Senate as a Member of the Urban Development Corporation and he will be designated Chair, and a member of the Financial Control Board. Mr. Cohen previously was General Counsel and Chief Administrative Officer of MacAndrews and Forbes Incorporated. Prior to that, Mr. Cohen served as Secretary to New York Governor Andrew M. Cuomo, in addition to serving as Counselor and Chief of Staff in the Office of the New York Attorney General under Attorney General Cuomo. In private practice, Mr. Cohen represented a wide array of corporations and individuals in complex commercial, criminal, and regulatory matters. He previously served as the Chief of the Violent Gangs Unit in the U.S. Attorney's Office for the Southern District of New York. Mr. Cohen received his B.A. from New York University and his J.D. from the University of Pennsylvania Law School. He is a member of the New York University Board of Trustees, University of Pennsylvania Law School Board of Advisors, Bank Leumi USA Board of Directors and Whole Earth Brands Board of Directors. He currently serves as a New York Trustee of the Gateway Development Corporation and previously served as the Vice Chairman of the Port Authority of NY and NJ. 

Howard Zemsky was nominated by Governor Cuomo and confirmed by the Senate as Chair Emeritus of the Urban Development Corporation where he will continue his great work on upstate economic development. Mr. Zemsky previously served as President and CEO of Empire State Development Corporation (ESDC) and Commissioner of the Department of Economic Development. He also co-chaired the Western New York Regional Economic Development Council for four years and worked closely on the Governor's Buffalo Billion initiative. Zemsky has a bachelor's degree from Michigan State University and an M.B.A. from the University of Rochester.

Lola Brabham was nominated by Governor Cuomo and confirmed by the Senate as Commissioner and President of the New York State Civil Service Commission. She currently serves as the Acting Commissioner of the New York State Department of Civil Service. In 2019, Governor Cuomo appointed Ms. Brabham as a member of the Civil Service Commission and was named President of the Commission. Ms. Brabham previously served as Acting Commissioner and Executive Deputy Commissioner of the Department of Civil Service. Prior, she served as Deputy Commissioner for Administration and Chief Financial Officer for the State Department of Labor and was Assistant Chief Budget Examiner for the State Division of the Budget. She was Assistant Secretary for Health, Medicaid and Oversight and Director of Human Services in the Executive Chamber under Governor David Paterson. She was also a Legislative Budget Analyst for the Assembly Committee on Ways and Means and, early in her career, was Chief of Staff to Assemblyman N. Nick Perry. Ms. Brabham has a dual B.A. in Criminal Justice and Sociology from the State University of New York and an M.P.A. from Rockefeller College of Public Affairs and Policy.

Dr. Merryl Tisch was reappointed as the Chair of the SUNY Board of Trustees. In 2019, Governor Cuomo appointed Dr. Tisch as the Chair of the Board of Trustees. Prior to that, she had served as Vice Chairman of the SUNY Board of Trustees since March, 2018. Previously, Dr. Tisch was a member of the Board of Regents for 20 years and held the position of Vice Chancellor from 2007 to 2009. As Chancellor of the New York State Board of Regents, Dr. Tisch was responsible for setting the state's education policy and overseeing both public and private education throughout New York. Her policies were informed by years of experience in the fields of education, community service, and philanthropy, including her work as a first-grade teacher at New York City's Ramaz School and the B'nai Jeshurun School. She holds a B.A. from Barnard College, an M.A. in Education from New York University, and received an Ed.D from Teacher's College, ColumbiaUniversity.

Camille Varlack was appointed as a Trustee on the SUNY Board of Trustees. Ms. Varlack is currently Chief Operating Officer and Deputy General Counsel at Pierce Bainbridge Beck Price and Hecht LLP. She previously served as Deputy Director of State Operations for Governor Cuomo. In 2017, she was appointed New York State Chief Risk Officer and Special Counsel. Ms. Varlack has served as deputy director for ethics, risk and compliance in the Executive Chamber and as a principal law clerk for the New York State Supreme Court. She has also served as Assistant Vice President and Counsel at AXA Financial, Inc. and as an Assistant District Attorney for the Kings County District Attorney's Office. Ms. Varlack holds a B.A. from the State University of New York at Buffalo and a J.D. from Brooklyn Law School.

James Haddon was appointed as a Trustee on the SUNY Board of Trustees. Mr. Haddon is currently a Managing Director of Strategic Marketing at Ramirez Asset Management (RAM). He joined RAM in January 2015 and has worked over 36 years in the asset management and investment banking business. At RAM he is responsible for marketing RAM's fixed income products and services to pension funds, state and local governments and corporations. Prior to RAM, Mr. Haddon was employed for 5 years at PFM Asset Management where he was a Managing Director responsible for National Account marketing. Prior to PFM Asset Management he worked at Citigroup in various asset fundraising and investment banking roles. He earned a bachelor's degree in economics from Wesleyan University and an MBA from Stanford University.

Marcos A. Crespo was appointed as a Trustee on the SUNY Board of Trustees. Previously, Mr. Crespo was a member of the New York State Assembly - one of the youngest members of the New York State Legislature when first elected in 2009 - representing the 85th Assembly District, which includes the Soundview, Clason Point, Longwood, and Hunts Point sections of the South Bronx. While in office, Assemblyman Crespo served on a number of committees, including the Committee on Alcoholism and Drug Abuse; Cities; Energy; Environmental Conservation; Insurance; and Transportation. He was also a member of the Black, Puerto Rican, Hispanic and Asian Legislative Caucus, Chair of the Puerto Rican/Hispanic Task Force, and Co-Chair of the Legislative Task Force on Demographic Research and Reapportionment. Mr. Crespo is a graduate of John Jay College of Criminal Justice, is married and has two young daughters.

William Thompson, Jr. was nominated by Governor Cuomo and confirmed by the Senate as a member of the Financial Control Board. Mr. Thompson's extensive experience in successfully managing the finances of one of the nation's largest cities has afforded him unique insight into the needs of local municipal issuers. As Comptroller, Mr. Thompson also served as custodian and investment advisor to the five New York City Pension Funds, where he managed a combined portfolio amounting to more than $100 billion at the close of his tenure. In this role, Mr. Thompson invested hundreds of millions of dollars in affordable housing and commercial real estate in New York City. During his tenure, Mr. Thompson also worked with leaders of the financial services industry to reform the operations of the New York Stock Exchange, and spearheaded the City's innovative Banking Development District program. Prior to his work as Comptroller, he had served as Brooklyn Deputy Borough President and as a Member and five-term President of the New York City Board of Education. Mr. Thompson also served as a Senior Vice President in Public Finance in the mid-1990s. Mr. Thompson is a graduate of Tufts University.

Secretary of State Rossana Rosado was nominated by Governor Cuomo and confirmed by the Senate as a member of the Financial Control Board. Secretary Rosado brings a depth and diversity of experience as New York Secretary of State. Governor Cuomo appointed Secretary Rosado to the position on February 3, 2016 and she was unanimously confirmed by the New York State Senate on June 15, 2016. Her leadership has helped make the Department of State one of the most dynamic agencies in State government. Secretary Rosado is best known for her successful tenure as the Publisher and CEO of El Diario La Prensa, where she spent 18 years, overseeing more than $22 million in annual revenue. Secretary Rosado also served on the board of the Port Authority of New York and New Jersey from 2012 to 2015. Secretary Rosado was a Distinguished Lecturer at the John Jay College of Criminal Justice prior to joining the Cuomo administration, and has been a member of the College's Foundation Board of Trustees since 2012. A native New Yorker, Secretary Rosado received her B.A. in Journalism from Pace University.

Kelly Cummings was nominated by Governor Cuomo and confirmed by the Senate as a member of the Olympic Regional Development Authority and will be designated Chair. Ms. Cummings currently serves as the Director of New York State Operations and Infrastructure. Previously, she served as Senior Advisor and Deputy Chief of Staff to Governor Cuomo. Prior to working in the Governor's administration, she served as the Director of Communications for the Senate Majority. In that position she managed overall communications and press for the Senate Majority Conference and acted as chief spokesperson for the Senate Majority Leader. In her more than 20 years in the State Legislature, Ms. Cummings has held a number of communications and policy positions in both the Senate and Assembly. Ms. Cummings previously served as director of policy development for the Senate Minority where she assisted senators and their staff in developing, drafting and publicizing new legislative initiatives. Prior to that, Ms. Cummings was chief of staff to Senator Charles Fuschillo where she managed operations, developed legislation and directed press and communications. Ms. Cummings also worked as communications director and director of public affairs for the Assembly Minority from 2002-2005. She holds a Bachelor of Arts degree from St. Lawrence University.

Senator Betty Little was nominated by Governor Cuomo and confirmed by the Senate as a member of the Olympic Regional Development Authority. Currently, she is serving her ninth term as a New York State Senator representing the residents of the 45th Senate District, which is comprised of Clinton, Essex, Franklin, Warren and parts of St. Lawrence and Washington Counties. Prior to first winning election to the State Senate in November 2002, Senator Little served in the New York State Assembly for seven years. A former teacher, Senator Little is pleased to serve as the ranking Minority member on the Senate's Education Committee. She also serves on the following committees: Cultural Affairs, Tourism, Parks and Recreation; Environmental Conservation; Finance; Health; Housing, Construction and Community Development; New York City Education; and Rules. Born in Glens Falls, Senator Little is a graduate of St. Mary's Academy and the College of Saint Rose with a degree in Elementary Education. A former teacher and realtor, she resides in Queensbury. Senator Little is the mother of six children, Elizabeth, David, Robert, Thomas, Carolyn and Luke, and the proud grandmother of eighteen.

Brigadier General Michel A. Natali was promoted to Major General of the New York Army National Guard. Prior to his current assignment, he served as the Commanding General of the 53rd Troop Command of the New York National Guard. Major General Natali also served a combat tour in Iraq as Deputy Intelligence Officer in the 42nd Infantry Division from 2004 to 2005. He is a graduate of Norwich University, received his Masters of Public Administration from Marist College, and received his Master of Strategic Studies from the U.S. Army War College.

The following individuals were nominated by Governor Cuomo and confirmed by the Senate to the New York State Court of Claims:

Veronica G. Hummel

Hon. Charles M. Troia

Hon. Adrian N. Armstrong

Adam W. Silverman

The following individuals were also nominated by Governor Cuomo and confirmed by the Senate to the Olympic Regional Development Authority:

Diane Munro

Elinor Tatum

Thomas Keegan

The following individuals were nominated by Governor Cuomo and confirmed by the Senate to the New York State Minority Health Council:

Ngozi Moses

Guillermo Chacon

LaRay Brown

Tandra LaGrone

Mecca (Santana) Mitchell

Dr. Luis Freddy Molano

Rev. Diann Holt

Helen Arteaga Landaverde

The following individuals were nominated by Governor Cuomo and confirmed by the Senate to the New York State Behavioral Health Services Advisory Council:

Glenn Liebman

Chacku Mathai

Michael Orth

Carlee Hulsizer

Brianna Gower

Debra Pantin

Ian Shaffer

Yiu Ng

David Woodlock

Kerry Whelan-Megley

Patrick Seche

Constance Wille

Hilda Rosario Escher

The following individuals were nominated by Governor Cuomo and confirmed by the Senate to the New York State Bridge Authority:

Lou Lanza

Michael O'Brien

IIan Gibert

Joan McDonald

Alexander Berardi

Maria Bruni

Colin Jarvis

The following individuals were nominated by Governor Cuomo and confirmed by the Senate to the Niagara Frontier Transportation Authority:

Jennifer Persico

Rev. Mark Blue

Stephen Tucker

The following individuals were nominated by Governor Cuomo and confirmed by the Senate to the Ogdensburg Bridge and Port Authority:

Toni Kennedy

Jennifer Quirk-Pickman

Nicole Terminelli

Megan Whitton

Vernon "Sam" Burns

The following individual was nominated by Governor Cuomo and confirmed by the Senate to the Stewart Airport Commission:

Roger Higgins

Placing an employee on leave without pay upon the initiation of a disciplinary action against the employee

Civil Service Law §75.3-a, suspension pending determination of charges and penalties relating to police officers of the Police Department of the City of New  York [Department] served with disciplinary charges, provides that a New York City police officer may be placed on leave without pay for a maximum of 30 days while awaiting a hearing on the disciplinary charges. Thereafter the police officer's name must be restored to full pay status on the payroll. 

However, in the event of a delay in the disciplinary hearing beyond the 30-day maximum is occasioned solely by the police officer's own conduct, the police officer may be placed on, or continued on, leave with out pay or again removed from the payroll, as the case may be, until such time as the appointing authority is otherwise able to go forward with disciplinary hearing. 

In contrast, where the appointing authority is solely responsible for the delay, or the parties are equally responsible for the delay, the police officer's name is to be restored to the payroll after the 30-day period of leave without pay authorized by §75.3-a has been exhausted.

In this action the Appellate Division said it agreed with the Department that the police officer [Petitioner] was not entitled to reinstatement to the payroll, or eligible for back pay, for any time he was taken off the payroll in excess of 30 days, because Petitioner was solely responsible for the delay in the disciplinary hearing going forward. 

The Appellate Division, citing Gerber v New York City Housing Authority, 42 NY2d 162, explained that because Petitioner failed to take certain necessary action "the entire period of delay in holding the [disciplinary] hearing resulted from his dilatory tactics."

In the alternative, in the event an individual served with disciplinary charges fails or refuses to participate in the disciplinary hearing without good cause, the appointing authority may elect to proceed to conduct the disciplinary hearing as scheduled "in absentia."

It is well-settled that should the employee fail to appear at the disciplinary hearing as scheduled, the appointing authority may elect to proceed with the disciplinary action and actually hold a hearing in absentia rather then merely proceed to impose a penalty on the individual simply because of the employee's failure to appear as scheduled [see Mari v. Safir, 291 AD2d 298, leave to appeal denied, 98 NY2d 613]. 

As the Appellate Division held in Mujtaba v NYS Dept. of Education, 148 A.D.2d 819; 107 A.D.3d 1066,  “due process does not require that [the charged employee] be present at an administrative hearing, but rather requires notice of the charges and an opportunity to be heard.” What also is required, however, is that in the event the employee fails to appear at the disciplinary hearing as scheduled, the appointing authority make a diligent effort to contact the employee to inform him that the scheduled disciplinary hearing would take place even if he did not participate and determine if the individual had a reasonable explanation for his failure to appear at the disciplinary hearing as schedule.. 

Further, the charging party must prove its case by presenting substantial evidence of the employee’s incompetence or misconduct in the course of a disciplinary hearing held in absentia.

On the other hand, there is case law holding that an arbitrator may proceed with a disciplinary arbitration hearing in the absence of the appointing authority or its representative and make a final, binding determination and award. The appointing authority had boycotted a scheduled arbitration hearing because it believed that the employee was not entitled to submit the matter to arbitration. In Matter of Hall, 235 AD2d 75, the Appellate Division sustained the arbitrator’s award in favor of the employee.

The instant decision is posted on the Internet at: 

http://www.nycourts.gov/reporter/3dseries/2020/2020_04103.htm

Seeking public documents and records pursuant to New York State's Freedom of Information Law

The basic concept underlying New York State's Freedom of Information Law [FOIL] is that all government documents and records, other than those having access specifically limited by statute, are available to the public.* Although the custodian of the records or documents requested may, as a matter of an exercise of discretion, elect to deny access to  documents and records that are within the ambit of the several exceptions to disclosure authorized by FOIL, as the Court of Appeals noted in Matter of Madeiros v New York State Educ. Dept., 30 NY3d 67, FOIL "is based on a presumption of access in accordance with the underlying premise that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government."

Petitioner's union had submitted a FOIL request seeking "complete copies of any communications" between a named respondent or the New York Police Department [herein after jointly "NYPD"] and the Mayor or the Mayor's Office related to an incident in which the Petitioner was involved. The union also sought "complete copies of any documents" related to a NYPD task force convened to review NYPD's emotionally disturbed person [EDP] policy and to make recommendations for changes thereto. NYPD denied the union's request in its entirety, claiming an exemption to avoid interference with a law enforcement investigation or judicial proceeding at the both the NYPD FOIL Unit's level and at the NYPD's Records Access Appeals Officer's level. Petitioner then initiated this proceeding.

The Appellate Division, noting that a second NYPD decision involving the same administrative appeal produced over 3,200 pages of responsive documents, with numerous redactions, but  462 pages were withheld under color of exemption as inter- and intra-agency material, said that NYPD, with respect to the redactions, relied on "exemptions for nonroutine criminal investigation techniques and preserving the integrity of agency information technology assets."

NYPD also advanced claims of "protection of individuals' privacy and safety, and the attorney-client privilege," which Petitioner did not challenge. 

Petitioner, however, did challenge challenged NYPD's reliance on the law enforcement exemption which it had not earlier raised. After Petitioner filed an amended petition challenging NYPD's reliance on exemptions not previously raised, NYPD cross-moved to dismiss Petitioner's action, asserting that the proceeding was moot and contended that the proceeding was in the nature of mandamus. 

Although Supreme Court had granted  NYPD's cross motion, the Appellate Division reversed the lower court's ruling.

Initially addressing NYPD's challenge to Petitioner's standing to maintain this action, the Appellate Division, citing Matter of Fleisher v New York State Liq. Auth., 103 AD3d 581, leave to appeal denied 21 NY3d 856, rejected NYPD's argument, explaining that Petitioner's union had filed the FOIL request on Petitioner's behalf and NYPD specifically referenced Petitioner in their administrative appeal determinations.

The Appellate Division then ruled that "This proceeding is not in the nature of mandamus to compel the disclosure of documents under the Freedom of Information Law [FOIL]."** Thus, said the court, the standard of review is whether the denial of the FOIL request was "affected by an error of law." Accordingly, said the court citing Matter of Madeiros v New York City Educ. Dept., 30 NY3d 67, its judicial review was limited to the grounds for denial of the documents and materials demanded invoked by NYPD in its administrative determinations.

As NYPD had abandoned the exemption raised in its initial decision, the Appellate Division concluded that it cannot meet its burden to "establish that the ... documents [qualify] for the exemption," nor did NYPD "make any contemporaneous claim that the requested materials" fit its newly claimed exemptions. In the words of the court, "to allow [it] to do so now would be contrary to [Court of Appeals] precedent, as well as to the spirit and purpose of FOIL."

Rejecting NYPD's contention to the contrary, the Appellate Division held that the disclosure of certain documents did not moot this proceeding as the agency had still withheld many of the documents and materials sought by Petitioner and Petitioner had challenged the bases for both [1] NYPD's failure to produce such documents and materials and [2] the redactions made by NYPD to the documents NYPD did disclosed.

The Appellate Division, however, held that Petitioner's demand for the metadata*** of documents disclosed must be denied as an agency is only required to produce "a record reasonably described" and a FOIL request for "complete copies" of communications and documents cannot fairly be read to have implicitly requested metadata associated with those records.

Further, said the court, Plaintiff's reliance on a Fourth Department case, Matter of Irwin v Onondaga County Resource Recovery Agency, 72 AD3d 314, in which that court held that a request for "all computer records that are associated with published [photographs]" should be produced was misplaced as Petitioner's request in the instant matter is distinguishable from the request considered by the court in Irwin and the Fourth Department's "decision is limited to the facts of [the Irwin] case."

Noting that Petitioner had "substantially prevailed"**** even prior to this appeal as NYPD made "no disclosures, redacted or otherwise, prior to Petitioner's commencement of this ... proceeding," and Petitioner "ultimately succeeded in obtaining substantial ... post-commencement disclosure responsive to [Petitioner's] FOIL request," the Appellate Division remanded the matter to Supreme Court for it:

1. To determine if there are any necessary redactions in all documents disclosed, both before entry of judgment and as a result of this decision, pursuant to the exemptions based upon invasions of personal privacy, preserving the safety of persons, and the attorney-client privilege, as well as the Supreme Court's consideration of Petitioner's request for attorneys' fees and litigation costs; and

2. To determine whether there was a reasonable basis for the NYPD to deny access based on the claimed law enforcement exemption, and if not, to "assess" fees and costs" consistent with the provisions of Public Officers Law §89[4][c][ii]."

* Release of certain public records are limited by statute such as the prohibitions set out in  Education Law §1127 - Confidentiality of records; §33.13 of the Mental Hygiene Law - Confidentiality of clinical records; and Civil Rights Law §50-b(1) prohibiting public inspection of material "in the custody or possession of any public officer or employee" identifying a victim of a sex offense as defined by Penal Law Article 130.

** The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only where there exists a clear legal right to the relief sought (see Matter of Legal Aid Socy. of Sullivan County v Scheinman , 53 NY2d 12.

*** Metadata is data that in most information technology usages means "an underlying definition or description."

**** The Appellate Division noted that Petitioner "ultimately succeeded in obtaining substantial ... post-commencement disclosure responsive to [Petitioner's] FOIL request."

The decision is posted on the Internet at:   http://www.nycourts.gov/reporter/3dseries/2020/2020_04007.htm