US Supreme Court - free speech - 303 Creative LLC et al. v Elenis et al.

Click HERE to access the Syllabus and full text of the Supreme Court's decision in 303 CREATIVE LLC ET AL . v. ELENIS ET AL., handed down on June 30, 2023.

Certain types of records are exempt from disclosure pursuant to Public Officers Law §87

The  County's Office of the District Attorney [ODA] declined to provide Plaintiff with certain records pursuant to New York State's Freedom of Information Law [FOIL]* relating to a female witness who was the victim of a sex offense.

Plaintiff then commenced a proceeding pursuant to CPLR Article 78 seeking a court order compelling the ODA to produce the records demanded. Supreme Court, agreeing with ODA contention that the records sought by Plaintiff were "exempt from disclosure" pursuant to both Public Officers Law §87(2)(a) and Public Officers Law §87(2)(e)(i), denied Plaintiff's petition and dismissed the proceeding, .

Plaintiff appealed Supreme Court's ruling.

The Appellate Division affirmed the Supreme Court's decision noting that with regard to the records requested by the Plaintiff relating to a female witness who was the victim of a sex offense, ODA had satisfied its burden of establishing that the records demanded were exempt from disclosure pursuant to Public Officers Law §87(2)(a).

The decision notes that:

1. "All government records are presumptively open for public inspection unless specifically exempt from disclosure," citing Matter of Crowe v Guccione, 171 AD3d 1170;

2. "Public Officers Law §87(2)(a) provides that an agency may deny access to records that are specifically exempted from disclosure by state or federal statute" (see Matter of Crowe v Guccione, supra); and

3. "Civil Rights Law §50-b(1) provides a statutory exemption from disclosure for documents that tend to identify the victim of a sex offense", noting Matter of Karlin v McMahon, 96 NY2d at 843.

The Appellate Division further observed that ODA "also satisfied its burden of establishing that all of the requested records were exempt from disclosure pursuant to Public Officers Law §87(2)(e)(i).** 

Here, opined the court, Plaintiff had made a "particularized FOIL request," and the ODA had demonstrated a risk associated with such disclosure that would adversely interfere a pending habeas corpus proceeding.

Other limitations on the release of some public records by statute include Education Law, §1127 - Confidentiality of records and §33.13 Mental Hygiene Law - Clinical records; confidentiality. For links to selected FOIL decision summaries posted by NYPPL click HERE.

* See Public Officers Law Article 6.

** Public Officers Law §87(2)(e)(i) provides that an agency may deny access to records that 'are compiled for law enforcement purposes only to the extent that disclosure would interfere with law enforcement investigations or judicial proceedings" by demonstrating a valid basis for denial of the Plaintiff's FOIL request, and establishing that the records sought were exempt from disclosure pursuant to §87(2)(e)(i).

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

 

Racial considerations associated with admission to colleges and univesities violate the Constitution of the United States.

On June 29, 2023 the Supreme Court held that colleges and universities making "admission decisions" that relied, in part, on racial considerations violated the Constitution of the United States.

Click HERE to access both the Syllabus and the full text of the decision posted on the Internet.

N.B. The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader and is set out below for the convenience of NYPPL readers.

SUPREME COURT OF THE UNITED STATES

 
Syllabus

STUDENTS FOR FAIR ADMISSIONS, INC. v.
PRESIDENT AND FELLOWS OF HARVARD COLLEGE
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIRST CIRCUIT

No. 20–1199. Argued October 31, 2022—Decided June 29, 2023*

Harvard College and the University of North Carolina (UNC) are two of
the oldest institutions of higher learning in the United States. Every
year, tens of thousands of students apply to each school; many fewer
are admitted. Both Harvard and UNC employ a highly selective ad-
missions process to make their decisions. Admission to each school can
depend on a student’s grades, recommendation letters, or extracurric-
ular involvement. It can also depend on their race. The question pre-
sented is whether the admissions systems used by Harvard College
and UNC are lawful under the Equal Protection Clause of the Four-
teenth Amendment.

At Harvard, each application for admission is initially screened by a
“first reader,” who assigns a numerical score in each of six categories:
academic, extracurricular, athletic, school support, personal, and over-
all. For the “overall” category—a composite of the five other ratings—
a first reader can and does consider the applicant’s race. Harvard’s
admissions subcommittees then review all applications from a partic-
ular geographic area. These regional subcommittees make recommen-
dations to the full admissions committee, and they take an applicant’s
race into account. When the 40-member full admissions committee
begins its deliberations, it discusses the relative breakdown of appli-
cants by race. The goal of the process, according to Harvard’s director
of admissions, is ensuring there is no “dramatic drop-off” in minority
admissions from the prior class. An applicant receiving a majority of
——————
* Together with No. 21–707, Students for Fair Admissions, Inc. v. Uni-
versity of North Carolina et al., on certiorari before judgment to the
United States Court of Appeals for the Fourth Circuit.

 

 

Harvard College and the University of North Carolina (UNC) are two of

the oldest institutions of higher learning in the United States. Every

year, tens of thousands of students apply to each school; many fewer

are admitted. Both Harvard and UNC employ a highly selective ad-

missions process to make their decisions. Admission to each school can

depend on a student’s grades, recommendation letters, or extracurric-

ular involvement. It can also depend on their race. The question pre-

sented is whether the admissions systems used by Harvard College

and UNC are lawful under the Equal Protection Clause of the Four-

teenth Amendment.

 

At Harvard, each application for admission is initially screened by a

“first reader,” who assigns a numerical score in each of six categories:

academic, extracurricular, athletic, school support, personal, and over-

all. For the “overall” category—a composite of the five other ratings—

a first reader can and does consider the applicant’s race. Harvard’s

admissions subcommittees then review all applications from a partic-

ular geographic area. These regional subcommittees make recommen-

dations to the full admissions committee, and they take an applicant’s

race into account. When the 40-member full admissions committee

begins its deliberations, it discusses the relative breakdown of appli-

cants by race. The goal of the process, according to Harvard’s director

of admissions, is ensuring there is no “dramatic drop-off” in minority

admissions from the prior class. An applicant receiving a majority of

the full committee’s votes is tentatively accepted for admission. At the

end of this process, the racial composition of the tentative applicant

pool is disclosed to the committee. The last stage of Harvard’s admis-

sions process, called the “lop,” winnows the list of tentatively admitted

students to arrive at the final class. Applicants that Harvard consid-

ers cutting at this stage are placed on the “lop list,” which contains

only four pieces of information: legacy status, recruited athlete status,

financial aid eligibility, and race. In the Harvard admissions process,

“race is a determinative tip for” a significant percentage “of all admit-

ted African American and Hispanic applicants.”

 

UNC has a similar admissions process. Every application is re-

viewed first by an admissions office reader, who assigns a numerical

rating to each of several categories. Readers are required to consider

the applicant’s race as a factor in their review. Readers then make a

written recommendation on each assigned application, and they may

provide an applicant a substantial “plus” depending on the applicant’s

race. At this stage, most recommendations are provisionally final. A

committee of experienced staff members then conducts a “school group

review” of every initial decision made by a reader and either approves

or rejects the recommendation. In making those decisions, the com-

mittee may consider the applicant’s race.

 

Petitioner, Students for Fair Admissions (SFFA), is a nonprofit or-

ganization whose stated purpose is “to defend human and civil rights

secured by law, including the right of individuals to equal protection

under the law.” SFFA filed separate lawsuits against Harvard and

UNC, arguing that their race-based admissions programs violate, re-

spectively, Title VI of the Civil Rights Act of 1964 and the Equal Pro-

tection Clause of the Fourteenth Amendment. After separate bench

trials, both admissions programs were found permissible under the

Equal Protection Clause and this Court’s precedents. In the Harvard

case, the First Circuit affirmed, and this Court granted certiorari. In

the UNC case, this Court granted certiorari before judgment.

Held: Harvard’s and UNC’s admissions programs violate the Equal Pro-

tection Clause of the Fourteenth Amendment. Pp. 6–40.

 

(a) Because SFFA complies with the standing requirements for or-

ganizational plaintiffs articulated by this Court in Hunt v. Washington

State Apple Advertising Comm’n, 432 U. S. 333, SFFA’s obligations un-

der Article III are satisfied, and this Court has jurisdiction to consider

the merits of SFFA’s claims.

 

The Court rejects UNC’s argument that SFFA lacks standing be-

cause it is not a “genuine” membership organization. An organiza-

tional plaintiff can satisfy Article III jurisdiction in two ways, one of

which is to assert “standing solely as the representative of its mem-

bers,” Warth v. Seldin, 422 U. S. 490, 511, an approach known as rep-

resentational or organizational standing. To invoke it, an organization

must satisfy the three-part test in Hunt. Respondents do not suggest

that SFFA fails Hunt’s test for organizational standing. They argue

instead that SFFA cannot invoke organizational standing at all be-

cause SFFA was not a genuine membership organization at the time

it filed suit. Respondents maintain that, under Hunt, a group qualifies

as a genuine membership organization only if it is controlled and

funded by its members. In Hunt, this Court determined that a state

agency with no traditional members could still qualify as a genuine

membership organization in substance because the agency repre-

sented the interests of individuals and otherwise satisfied Hunt’s

three-part test for organizational standing. See 432 U. S., at 342.

Hunt’s “indicia of membership” analysis, however, has no applicability

here. As the courts below found, SFFA is indisputably a voluntary

membership organization with identifiable members who support its

mission and whom SFFA represents in good faith. SFFA is thus enti-

tled to rely on the organizational standing doctrine as articulated in

Hunt. Pp. 6–9.

 

(b) Proposed by Congress and ratified by the States in the wake of

the Civil War, the Fourteenth Amendment provides that no State shall

“deny to any person . . . the equal protection of the laws.” Proponents

of the Equal Protection Clause described its “foundation[al] principle”

as “not permit[ing] any distinctions of law based on race or color.” Any

“law which operates upon one man,” they maintained, should “operate

equally upon all.” Accordingly, as this Court’s early decisions inter-

preting the Equal Protection Clause explained, the Fourteenth

Amendment guaranteed “that the law in the States shall be the same

for the black as for the white; that all persons, whether colored or

white, shall stand equal before the laws of the States.”

 

Despite the early recognition of the broad sweep of the Equal Pro-

tection Clause, the Court—alongside the country—quickly failed to

live up to the Clause’s core commitments. For almost a century after

the Civil War, state-mandated segregation was in many parts of the

Nation a regrettable norm. This Court played its own role in that ig-

noble history, allowing in Plessy v. Ferguson the separate but equal

regime that would come to deface much of America. 163 U. S. 537.

After Plessy, “American courts . . . labored with the doctrine [of sep-

arate but equal] for over half a century.” Brown v. Board of Education,

347 U. S. 483, 491. Some cases in this period attempted to curtail the

perniciousness of the doctrine by emphasizing that it required States

to provide black students educational opportunities equal to—even if

formally separate from—those enjoyed by white students. See, e.g.,

Missouri ex rel. Gaines v. Canada, 305 U. S. 337, 349–350. But the

inherent folly of that approach—of trying to derive equality from ine-

quality—soon became apparent. As the Court subsequently recog-

nized, even racial distinctions that were argued to have no palpable

effect worked to subordinate the afflicted students. See, e.g., McLau-

rin v. Oklahoma State Regents for Higher Ed., 339 U. S. 637, 640–642.

By 1950, the inevitable truth of the Fourteenth Amendment had thus

begun to reemerge: Separate cannot be equal.

 

The culmination of this approach came finally in Brown v. Board of

Education, 347 U. S. 483. There, the Court overturned the separate

but equal regime established in Plessy and began on the path of inval-

idating all de jure racial discrimination by the States and Federal Gov-

ernment. The conclusion reached by the Brown Court was unmistak-

ably clear: the right to a public education “must be made available to

all on equal terms.” 347 U. S., at 493. The Court reiterated that rule

just one year later, holding that “full compliance” with Brown required

schools to admit students “on a racially nondiscriminatory basis.”

Brown v. Board of Education, 349 U. S. 294, 300–301.

 

In the years that followed, Brown’s “fundamental principle that ra-

cial discrimination in public education is unconstitutional,” id., at 298,

reached other areas of life—for example, state and local laws requiring

segregation in busing, Gayle v. Browder, 352 U. S. 903 (per curiam);

racial segregation in the enjoyment of public beaches and bathhouses

Mayor and City Council of Baltimore v. Dawson, 350 U. S. 877 (per cu-

riam); and antimiscegenation laws, Loving v. Virginia, 388 U. S. 1.

These decisions, and others like them, reflect the “core purpose” of the

Equal Protection Clause: “do[ing] away with all governmentally im-

posed discrimination based on race.” Palmore v. Sidoti, 466 U. S. 429,

432.

 

Eliminating racial discrimination means eliminating all of it. Ac-

cordingly, the Court has held that the Equal Protection Clause applies

“without regard to any differences of race, of color, or of nationality”—

it is “universal in [its] application.” Yick Wo v. Hopkins, 118 U. S. 356,

369. For “[t]he guarantee of equal protection cannot mean one thing

when applied to one individual and something else when applied to a

person of another color.” Regents of Univ. of Cal. v. Bakke, 438 U. S.

265, 289–290.

 

Any exceptions to the Equal Protection Clause’s guarantee must

survive a daunting two-step examination known as “strict scrutiny,”

Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 227, which asks

first whether the racial classification is used to “further compelling

governmental interests,” Grutter v. Bollinger, 539 U. S. 306, 326, and

second whether the government’s use of race is “narrowly tailored,”

i.e., “necessary,” to achieve that interest, Fisher v. University of Tex. at

Austin, 570 U. S. 297, 311–312. Acceptance of race-based state action

is rare for a reason: “[d]istinctions between citizens solely because of

their ancestry are by their very nature odious to a free people whose

institutions are founded upon the doctrine of equality.” Rice v. Cay-

etano, 528 U. S. 495, 517. Pp. 9–16.

 

(c) This Court first considered whether a university may make race-

based admissions decisions in Bakke, 438 U. S. 265. In a deeply splin-

tered decision that produced six different opinions, Justice Powell’s

opinion for himself alone would eventually come to “serv[e] as the

touchstone for constitutional analysis of race-conscious admissions

policies.” Grutter, 539 U. S., at 323. After rejecting three of the Uni-

versity’s four justifications as not sufficiently compelling, Justice Pow-

ell turned to its last interest asserted to be compelling—obtaining the

educational benefits that flow from a racially diverse student body.

Justice Powell found that interest to be “a constitutionally permissible

goal for an institution of higher education,” which was entitled as a

matter of academic freedom “to make its own judgments as to . . . the

selection of its student body.” 438 U. S., at 311–312. But a university’s

freedom was not unlimited—“[r]acial and ethnic distinctions of any

sort are inherently suspect,” Justice Powell explained, and antipathy

toward them was deeply “rooted in our Nation’s constitutional and de-

mographic history.” Id., at 291. Accordingly, a university could not

employ a two-track quota system with a specific number of seats re-

served for individuals from a preferred ethnic group. Id., at 315. Nei-

ther still could a university use race to foreclose an individual from all

consideration. Id., at 318. Race could only operate as “a ‘plus’ in a

particular applicant’s file,” and even then it had to be weighed in a

manner “flexible enough to consider all pertinent elements of diversity

in light of the particular qualifications of each applicant.” Id., at 317.

Pp. 16–19.

 

(d) For years following Bakke, lower courts struggled to determine

whether Justice Powell’s decision was “binding precedent.” Grutter,

539 U. S., at 325. Then, in Grutter v. Bollinger, the Court for the first

time “endorse[d] Justice Powell’s view that student body diversity is a

compelling state interest that can justify the use of race in university

admissions.” Ibid. The Grutter majority’s analysis tracked Justice

Powell’s in many respects, including its insistence on limits on how

universities may consider race in their admissions programs. Those

limits, Grutter explained, were intended to guard against two dangers

that all race-based government action portends. The first is the risk

that the use of race will devolve into “illegitimate . . . stereotyp[ing].”

Richmond v. J. A. Croson Co., 488 U. S. 469, 493 (plurality opinion).

Admissions programs could thus not operate on the “belief that minor-

ity students always (or even consistently) express some characteristic

minority viewpoint on any issue.” Grutter, 539 U. S., at 333 (internal

quotation marks omitted). The second risk is that race would be used

not as a plus, but as a negative—to discriminate against those racial

groups that were not the beneficiaries of the race-based preference. A

university’s use of race, accordingly, could not occur in a manner that

“unduly harm[ed] nonminority applicants.” Id., at 341.

 

To manage these concerns, Grutter imposed one final limit on race-

based admissions programs: At some point, the Court held, they must

end. Id., at 342. Recognizing that “[e]nshrining a permanent justifi-

cation for racial preferences would offend” the Constitution’s unambig-

uous guarantee of equal protection, the Court expressed its expecta-

tion that, in 25 years, “the use of racial preferences will no longer be

necessary to further the interest approved today.” Id., at 343. Pp. 19–

21.

 

(e) Twenty years have passed since Grutter, with no end to race-

based college admissions in sight. But the Court has permitted race-

based college admissions only within the confines of narrow re-

strictions: such admissions programs must comply with strict scrutiny,

may never use race as a stereotype or negative, and must—at some

point—end. Respondents’ admissions systems fail each of these crite-

ria and must therefore be invalidated under the Equal Protection

Clause of the Fourteenth Amendment. Pp. 21–34.

 

(1) Respondents fail to operate their race-based admissions pro-

grams in a manner that is “sufficiently measurable to permit judicial

[review]” under the rubric of strict scrutiny. Fisher v. University of

Tex. at Austin, 579 U. S. 365, 381. First, the interests that respondents

view as compelling cannot be subjected to meaningful judicial review.

Those interests include training future leaders, acquiring new

knowledge based on diverse outlooks, promoting a robust marketplace

of ideas, and preparing engaged and productive citizens. While these

are commendable goals, they are not sufficiently coherent for purposes

of strict scrutiny. It is unclear how courts are supposed to measure

any of these goals, or if they could, to know when they have been

reached so that racial preferences can end. The elusiveness of respond-

ents’ asserted goals is further illustrated by comparing them to recog-

nized compelling interests. For example, courts can discern whether

the temporary racial segregation of inmates will prevent harm to those

in the prison, see Johnson v. California, 543 U. S. 499, 512–513, but

the question whether a particular mix of minority students produces

“engaged and productive citizens” or effectively “train[s] future lead-

ers” is standardless.

 

Second, respondents’ admissions programs fail to articulate a mean-

ingful connection between the means they employ and the goals they

pursue. To achieve the educational benefits of diversity, respondents

measure the racial composition of their classes using racial categories

that are plainly overbroad (expressing, for example, no concern

whether South Asian or East Asian students are adequately repre-

sented as “Asian”); arbitrary or undefined (the use of the category “His-

panic”); or underinclusive (no category at all for Middle Eastern stu-

dents). The unclear connection between the goals that respondents

seek and the means they employ preclude courts from meaningfully

scrutinizing respondents’ admissions programs.

 

The universities’ main response to these criticisms is “trust us.”

They assert that universities are owed deference when using race to

benefit some applicants but not others. While this Court has recog-

nized a “tradition of giving a degree of deference to a university’s aca-

demic decisions,” it has made clear that deference must exist “within

constitutionally prescribed limits.” Grutter, 539 U. S., at 328. Re-

spondents have failed to present an exceedingly persuasive justifica-

tion for separating students on the basis of race that is measurable

and concrete enough to permit judicial review, as the Equal Protection

Clause requires. Pp. 22–26.

 

(2) Respondents’ race-based admissions systems also fail to com-

ply with the Equal Protection Clause’s twin commands that race may

never be used as a “negative” and that it may not operate as a stereo-

type. The First Circuit found that Harvard’s consideration of race has

resulted in fewer admissions of Asian-American students. Respond-

ents’ assertion that race is never a negative factor in their admissions

programs cannot withstand scrutiny. College admissions are zero-

sum, and a benefit provided to some applicants but not to others nec-

essarily advantages the former at the expense of the latter.

 

Respondents admissions programs are infirm for a second reason as

well: They require stereotyping—the very thing Grutter foreswore.

When a university admits students “on the basis of race, it engages in

the offensive and demeaning assumption that [students] of a particu-

lar race, because of their race, think alike.” Miller v. Johnson, 515

U. S. 900, 911–912. Such stereotyping is contrary to the “core purpose”

of the Equal Protection Clause. Palmore, 466 U. S., at 432. Pp. 26–

29.

 

(3) Respondents’ admissions programs also lack a “logical end

point” as Grutter required. 539 U. S., at 342. Respondents suggest

that the end of race-based admissions programs will occur once mean-

ingful representation and diversity are achieved on college campuses.

Such measures of success amount to little more than comparing the

racial breakdown of the incoming class and comparing it to some other

metric, such as the racial makeup of the previous incoming class or the

population in general, to see whether some proportional goal has been

reached. The problem with this approach is well established:

 

“[O]utright racial balancing” is “patently unconstitutional.” Fisher,

570 U. S., at 311. Respondents’ second proffered end point—when stu-

dents receive the educational benefits of diversity—fares no better. As

explained, it is unclear how a court is supposed to determine if or when

such goals would be adequately met. Third, respondents suggest the

25-year expectation in Grutter means that race-based preferences

must be allowed to continue until at least 2028. The Court’s statement

in Grutter, however, reflected only that Court’s expectation that race-

based preferences would, by 2028, be unnecessary in the context of ra-

cial diversity on college campuses. Finally, respondents argue that the

frequent reviews they conduct to determine whether racial preferences

are still necessary obviates the need for an end point. But Grutter

never suggested that periodic review can make unconstitutional con-

duct constitutional. Pp. 29–34.

 

(f) Because Harvard’s and UNC’s admissions programs lack suffi-

ciently focused and measurable objectives warranting the use of race,

unavoidably employ race in a negative manner, involve racial stereo-

typing, and lack meaningful end points, those admissions programs

cannot be reconciled with the guarantees of the Equal Protection

Clause. At the same time, nothing prohibits universities from consid-

ering an applicant’s discussion of how race affected the applicant’s life,

so long as that discussion is concretely tied to a quality of character or

unique ability that the particular applicant can contribute to the uni-

versity. Many universities have for too long wrongly concluded that

the touchstone of an individual’s identity is not challenges bested,

skills built, or lessons learned, but the color of their skin. This Nation’s

constitutional history does not tolerate that choice. Pp. 39–40.

 

No. 20–1199, 980 F. 3d 157; No. 21–707, 567 F. Supp. 3d 580, reversed.

ROBERTS , C. J., delivered the opinion of the Court, in which THOMAS ,

ALITO , G ORSUCH, K AVANAUGH, and BARRETT , JJ., joined. THOMAS , J.,

filed a concurring opinion. G ORSUCH, J., filed a concurring opinion, in

which THOMAS , J., joined. KAVANAUGH, J., filed a concurring opinion.

SOTOMAYOR, J., filed a dissenting opinion, in which KAGAN, J., joined, and

in which JACKSON, J., joined as it applies to No. 21–707. JACKSON, J.,

filed a dissenting opinion in No. 21–707, in which SOTOMAYOR and K A-

GAN, JJ., joined. JACKSON, J., took no part in the consideration or deci-

sion of the case in No. 20–1199.

_________________

Cite as: 600 U. S. ____ (2023).

 

 

New York City contractor found to have failed to pay prevailing wages to employees working public works projects

New York City's Office of Administrative Trials and Hearings Administrative Law Judge Faye Lewis found that a contractor working on public works projects in the City of New York had failed to pay certain of its employees the "prevailing wage rates. 

Judge Lewis recommended payment of restitution to the workers, imposition of  a 25% civil penalty, and a five-year debarment form bidding on public works projects consistent with the provisions of New York State's Labor Law §220-b(3)(b)(1)].

Section 220* of the Labor Law provides that entities that enter into public works contracts with the City must pay their employees “not less than the prevailing rate of wages” for work on the public works projects and set out penalties to be paid by a contractor who willfully failed to pay prevailing wages and supplemental benefits to the contractor's workers  employed to work on public works projects. 

Judge Faye Lewis, in finding the workers were employed to work on public works projects, rejected the contractor's claim that the workers were warehouse workers and credited the worker's testimony about their performing their work "in the field".

* Section 220.3 of the Labor Law provides that entities that enter into public works contracts must pay their employees “not less than the prevailing rate of wages” for work on the public works projects".

Click HERE to access the full text of Judge Lewis' findings and recommendation in OATH Index No. 2174/21.

 

Entitlement to paid COVID related quarantine leave requires an inquiry into the specific circumstances surrounding such request for leave

Petitioners in this combined proceeding pursuant to CPLR Article 78 and action for declaratory judgment, challenged the employer's determinations regarding the individual petitioners' paid leave requests after a period of quarantine or isolation due to COVID-19. The employer moved to dismiss the petition.

Citing Matter of Spence v New York State Off. of Mental Health, 211 AD3d 1430, the Appellate Division held that "the determination as to whether an individual ... is entitled to paid quarantine leave requires an inquiry into the specific circumstances surrounding such request for leave".

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

 

U. S. Supreme Court declined to review 4th Circuit decision striking down charter school's dress code

On June 26, 2023, the United States Supreme Court declined to consider a North Carolina charter school's challenge of an appeals court's ruling striking down the charter school's dress code requiring its female students to wear skirts while attending school.

"The 4th U.S. District Court of Appeals threw out the dress code, ruling that North Carolina charter schools are "state actors" working on the government's behalf, so they can't impose rules that won't fly in traditional public schools. The ACLU and several parents of female students had sued Charger Day School, which emphasizes "traditional values" and gets 95% of its funding from the state, arguing that its dress code violated the Constitution's equal protection clause and federal anti-discrimination law, Title IX."

Source: Politico, NPR

The claimant for retirement benefits pursuant to the Retirement and Social Security Law bears the burden of proving entitlement to such claimed benefits

A correction officer [Plaintiff] for a county sheriff's department [Employer] filed an application for service retirement benefits under a special retirement plan set out in  §89-f of the Retirement and Social Security Law claiming creditable service for a period that included the period from December 10, 1990 to February 19, 2016. Based on information received from Plaintiff's Employer, the Retirement System deemed Plaintiff eligible for §89-f benefits and he began receiving retirement benefits based on such data.

A subsequent federal investigation resulted in Plaintiff's indictment and conviction of theft of funds and wire fraud stemming from Plaintiff's submission of time sheets and overtime slips indicating that he was working for Employer when he was "actually playing golf, frequenting a casino or engaging in political activities," all of which resulted in Plaintiff's defrauding Employer of approximately $200,000.

Employer advised the Office of the State Comptroller of Plaintiff's fraudulent time submissions. Ultimately the Retirement System concluded that Plaintiff had only 24.50 years of total creditable member service and discontinued his §89-f retirement allowance benefits. Plaintiff requested hearing and redetermination of the System's action.

A Hearing Officer found that the compilation of member service credit report prepared by Plaintiff's attorney failed to demonstrate that Plaintiff had achieved the 25 years of total creditable service required and, further, that neither standby hours nor overtime hours were proper for inclusion in calculating Plaintiff's total member service credit.

The Comptroller sustained the denial of Plaintiff's application for service retirement benefits whereupon Plaintiff initiated this CPLR Article 78 proceeding challenging the Comptroller's decision.

Addressing the merits of Plaintiff's appeal, the Appellate Division noted that "[t]he comptroller is charged with the responsibility of determining service credits for retirement purposes and [the] determination will be upheld if rational and supported by substantial evidence", citing Matter of Rispoli v DiNapoli, 180 AD3d 1127. Further, the court opined that "it is the [Plaintiff] who bears the burden of demonstrating entitlement to the additional retirement service credit claimed".

Rather than testifying or calling any witnesses from the Employer to attest to the fact that, even after deducting the fraudulent time entries previously reported Plaintiff still had accrued sufficient total creditable member service to retire under the provisions of Retirement and Social Security Law §89-f, Plaintiff, instead, "opted to rely upon a one-page summary of total creditable member service prepared by his attorney who, in turn, utilized a selection of [Plaintiff's] payroll records to express his opinion that Plaintiff had accrued the 25 years of total creditable member service required."

The Appellate Division, as had the Hearing Officer, observed "absent detailed testimony as to the manner in which such calculations were performed, counsel's unsubstantiated interpretation of the limited payroll records supplied was insufficient to demonstrate [Plaintiff's] entitlement to the claimed [member] service credit — regardless of the nature of the hours utilized (regular, standby or overtime)."

As Plaintiff failed to meet his burden of proof in this regard, the Appellate Division opined that "his application for retirement benefits was properly denied upon this ground."

Despite Plaintiff's arguments to the contrary, the court explained that Plaintiff ignored  the fact that he, not the Retirement System, bore the burden of proof at the administrative hearing. As Plaintiff's counsel's one-page interpretation of selected portions of Plaintiff's payroll data was insufficient to establish the total required creditable member service claimed by Plaintiff, the Appellate Division said that it "need not consider whether, as [Plaintiff] contends, his standby or overtime hours should have been included in [his] counsel's calculations" and dismissed Plaintiff's appeal.

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

Reasonable statements made in the course of defending a claim of unlawful discrimination do not violate the anti-retaliation provisions of Title VII

A former employee [Petitioner] filed a complaint with the New York State Division of Human Rights [SDHR] alleging his former employer, the Office of the Attorney General [OAG], had engaged in unlawful discriminatory practices when it did not promote him to certain positions because of his age and because of religious discrimination. DSHR dismissed Petitioner's complaints, finding no probable cause to believe OAG had engaged in any unlawful discriminatory practices with respect to Petitioner's employment. In the ensuing appeal, the dismissal was affirmed (Cagino v Levine, 199 AD3d 1103.

During the pendency of the lawsuit, Petitioner submitted a Freedom of Information Law request to OAG seeking records related to the use of identification cards by certain employees — two of whom were the named defendants — to gain access to State buildings. OAG's Records Access Officer denied the request, concluding that the records were exempt under Public Officers Law §87(2)(b) because disclosure would result in an unwarranted invasion of privacy. The Records Access Officer's decision was sustained in the administrative appeal that followed.

Petitioner then filed a CPLR Article 78 appeal challenged that administrative determination and certain statements made in OAG's opposition papers, which Petitioner contended defamed him, resulting in Petitioner filing a complaint with the federal Equal Employment Opportunity Commission, which was transferred to SDHR

SDHR dismissed Petitioner's retaliation complaint, finding no probable cause to substantiate such a claim insofar as the allegedly defamatory statements, made in court papers, did not form the basis for a viable retaliation claim. Supreme Court subsequently dismissed the Petitioner's Article 78 action, concluding, as relevant here, that SDHR's finding of no probable cause was supported by a rational basis and was neither arbitrary nor capricious. Petitioner appeals.

The Appellate Division affirmed the Supreme Court's decision, holding that "SDHR's determination that there was no probable cause to support the retaliation claim is not contrary to law, nor is it arbitrary or capricious." Citing Matter of Curtis v New York State Div. of Human Rights, 124 AD3d 1117, the court noted that upon investigating a complaint, SDHR may dismiss it without a hearing "if it concludes that no probable cause exists" and that "Courts give deference to SDHR due to its experience and expertise in evaluating allegations of discrimination, and will only disturb a determination of no probable cause if it is arbitrary [and] capricious or lacks a rational basis".

In this instance, the Appellate Division noted that the dispute focused on whether OAG's statements about Petitioner in court papers filed in the FOIL proceeding constituted an adverse employment action. The court's decision notes that Petitioner "characterizes as retaliatory certain statements made by OAG in defending the denial of his FOIL request, including statements in an affirmation by an Assistant Attorney General that Petitioner:

[1] Made "increasingly and repeated hateful and alarming allegations" against the individuals to whom the records pertained; and

[2] Referred to Petitioner as a "disgruntled former employee" who had a "vendetta against" the individuals who were the subject of the records.

Explaining that in the context of a case of unlawful retaliation courts have deemed an adverse employment action to one which might have dissuaded a reasonable worker from making or supporting a charge of discrimination but have declined to do so "where the action complained of was undertaken by the employer as an "[o]rdinary defensive measure[ ] ... for the very purpose of defeating the employee's claim".

Further, the Appellate Division opined that "[r]easonable defensive measures do not violate the anti-retaliation provision of Title VII, even though such steps are adverse to the charging employee and result in differential treatment", citing United States v New York City Tr. Auth., 97 F3d at 677.

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

 

State Comptroller DiNapoli releases municipal and school audits

New York State Comptroller Thomas P. DiNapoli announced the following municipal and school audits were issued on June 23, 2023.

Click on the text highlighted in color to access the entire audit report. 

Village of Odessa – Clerk-Treasurer’s Records and Reports (Schuyler County) The former clerk-treasurer did not make cash deposits in a timely manner or properly record her leave usage. In addition, she earned and used leave that she was not entitled to and paid herself an unauthorized payment for unused leave totaling $13,293 when she left employment. The former clerk-treasurer also erroneously reported an additional 392.54 days worked to the New York State and Local Retirement System. 

N.B. The release of this report was delayed by the Office of the State Comptroller and submitted to "outside law enforcement for review".

Broome-Delaware-Tioga Board of Cooperative Educational Services (BOCES) – Capital Planning BOCES officials did not properly plan or budget for capital expenditures. Between 2018-19 and 2020-21, officials budgeted $916,304 for building repairs. However, building repairs and improvements totaled over $3.4 million for the same period. Without adequate capital planning, BOCES officials are limited in their ability to set long-term priorities. As a result, BOCES officials did not transparently fund capital expenditures and instead utilized more than $2.5 million of the component and participating school districts’ surplus funds over the last three school years.

Afton Central School District – Fund Balance Management (Chenango County) The board and district officials did not effectively manage the district’s fund balance. As a result, they levied more taxes than needed to fund operations and were not transparent with taxpayers. The board annually overestimated appropriations from fiscal years 2019-20 through 2021-22 by an average of $1.1 million or 7%. In addition, surplus fund balance exceeded the 4% statutory limit in each of the last three fiscal years by approximately $2.9 million to $5.6 million. The board also unnecessarily appropriated fund balance that was not needed, which in effect is a reservation of fund balance that is not provided  by statute and circumvents the statutory limit on surplus fund balance. Lastly, the district incurred $63,561 in unnecessary interest and other associated costs for the issuance of bond anticipation notes to purchase school buses.

Henry Johnson Charter School – Resident Tuition Billings and Collections (Albany County) While School officials ensured resident district tuition billings were adequately supported for the sample of 30 students reviewed, they did not ensure related district tuition collections reviewed totaling $8 million were deposited in a timely manner. Officials and staff also did not monitor collections received to ensure they were deposited in a timely manner or deposit 29 district tuition collections totaling $4.9 million in a timely manner.  

East Williston Central School District – Management of Nonstudent Network User Accounts (Nassau County) District officials did not adequately manage and monitor nonstudent network user accounts to help prevent unauthorized use, access and loss. Auditors found 222 (32%) of the enabled nonstudent network user accounts were not needed or disabled. Most of these accounts should have been disabled in February 2021 when the district updated their network access requirements. However, district officials did not develop a system to communicate when a network account was no longer necessary and should be deactivated.

Chenango Valley Central School District – Network User Accounts and Information Technology (IT) Contingency Planning (Chenango County) District officials did not adequately manage network user accounts or develop and adopt an IT contingency plan. Auditors found that sixty-eight (12%) of the district’s nonstudent network user accounts were no longer needed. Unneeded network user accounts are additional entry points into a network and, if accessed by attackers, could be used to inappropriately access and view personal, private and sensitive information or disable the network.

Rochester Academy Charter School – Credit Cards (Monroe County) School officials did not ensure credit card charges were properly approved, adequately supported and for school purposes and did not perform an effective and timely review of credit card charges. As a result, school officials approved and paid certain credit card charges without knowing what was purchased or whether the charges were for appropriate school purposes. Auditors found 35% of the tested credit card charges worth $68,523 did not have a receipt or did not have an itemized receipt and 48% totaling $91,673 had no documented school purpose. Subsequently, officials obtained and provided some of the missing receipts; however, 9% of the charges were still missing receipts. Officials also did not establish adequate written credit card policies and procedures or ensure compliance with the established policy requirements.

Town of New Albion – Town Supervisor’s Financial Duties (Cattaraugus County) The supervisor did not perform his financial duties or obtain training on how to perform his duties and was unfamiliar with the duties of his office. The town clerk and the bookkeeper performed the supervisor’s financial duties without oversight. By allowing others to perform his duties without oversight, the supervisor has weakened internal controls. For example, from Jan. 1, 2022 through Sept. 30, 2022, the town clerk collected and deposited $937,815 on behalf of the supervisor and performed the supervisor’s payroll duties without oversight. In addition, the bookkeeper performed many of the supervisor’s other day-to-day financial duties, including recording cash receipts and disbursements into the accounting records, preparing the monthly bank reconciliations and generating all of the supervisor’s reports to the board.

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