Writ of mandamus to compel disclosure of records pursuant to FOIL

Writ of mandamus to compel disclosure of records pursuant to FOIL

State ex rel. Dawson v Bloom-Carrol Local School District, Ohio Supreme Court, Docket 2011-0145

A parent sought a writ of mandamus* to compel a local school district to provide her with itemized invoices of law firms for services it bill the district concerning the parent’s children, and any communications from the school district's insurance carrier concerning litigation she brought against the district on behalf of one of her children.

Ohio Supreme Court denied the writ, explaining that the requested records were exempt from disclosure under Ohio’s Public Records Act because the school district met its burden of establishing the applicability of the attorney-client privilege to the requested records.

* “Mandamus was one of a number of ancient common law writs and was issued by a court to compel an administrative body to perform an act required by law.

Selected PERB decisions

Selected PERB decisions

Duty of fair representation

     The Union violated its duty to represent a non-member of the Union in the collective bargaining unit when it refused to appear on behalf of the non-member teacher in a hearing before the School Board regarding the teacher’s unsatisfactory performance rating. (Case U-4165 Matter of United Federation of Teachers)

Bargaining in good faith

     A School District could not refuse to pay a school administrator benefits provided under an expired contract (pay for accumulated sick leave credits upon retirement) when the record shows that the District did not bargain in good faith regarding the continuation of such benefit. (Case U-4616 Matter of Levittown Union Free School District)

Work now, grieve later

     Employee’s mistaken belief that the employer was in violation of the contract did not excuse his refusing to work, but even if he were correct, he would have been wrong in absenting himself from work as the proper recourse was to grieve the matter. (Case U-4642, Matter of Nassau County Chapter CSEA)

Scott v Wetzler, 195 AD2d 905, illustrates an application of the general rule that except in life-threatening situations, or in situations where the employee is asked to perform a clearly unlawful act, if an employee objects to complying with a superior's directive, he or she should "work now, grieve later."

Non-mandatory subjects of collective bargaining:

    Benefits for employees already retired, the number of full-time employees required and demands to fill vacant positions are not mandatory subjects of negotiations under the Taylor Law. (Case U-4905, Matter of the Village of Hudson Falls)

Criminal conviction requires finding of guilt in administrative disciplinary proceeding

Criminal conviction requires finding of guilt in administrative disciplinary proceeding

Kelly v. Levin, 440 NYS2d 424

A school business administrator was charged with larcenies of school funds and bringing discredit upon the school district.

The Education Law Section 3020-a disciplinary panel found the administrator guilty of the charge of bringing discredit upon the district, but not guilty of the larceny charges.

Kelly, however, had been convicted of two counts of grand larceny for theft of school property prior to being charged under Section 3020-a (see People v. Kelly, 72 AD2d 670).

The court held that the fact that the administrator had committed two larcenies of school property was conclusively established under the doctrine of collateral estoppel. As the hearing panel’s decision was based on a finding of guilt of “bringing discredit” charge only, the matter was remitted after the Court reversed the panel’s finding of not guilty of the charges and remanded the matter to the panel for it’s reconsideration of the appropriate penalty to be imposed.

Termination date change does not adversely affect eligibility for Unemployment Insurance benefits

Termination date change does not adversely affect eligibility for Unemployment Insurance benefits

Kalichman v. Ross, 439 N.Y.S.2d 718

When a school secretary was informed that her last day of work would be August 22, she asked that the last date of her service be changed to August 18.

Although the school approved the change, her unemployment insurance claim was rejected because she left on a “voluntary basis”.

The Court held that the change of date in this case was not significant and did not change an involuntary termination into a voluntary one. It then ordered the payment of the unemployment insurance claim.

No claim for back pay upon reinstatement

No claim for back pay upon reinstatement

Koppman v. Board of Education, 95 A.D.2d 777

If a probationary employee reinstated to his or her former position was not removed from the  position unlawfully “neither the Constitution nor New York State Law recognizes the right of a reinstated probationer to an award of back pay”.

This, in a nutshell was the conclusion of the Appellate Divisions in the Koppman case.

The court’s rationale: “In the absence of a statute requiring the payment of back pay, the public employer is not required to pay back wages as the payment of such compensation without the performance of service would constitute an unconstitutional gift of public funds (Article 8, Section 1, of the State Constitution).”

Town may terminate health insurance coverage for Medicare-eligible retirees

Town may terminate health insurance coverage for Medicare-eligible retirees

Op St Comp 80-105

The State Comptroller has issued an opinion indicating that a town may terminate the health insurance coverage of a retired town employee when the retiree becomes qualified for Medicare coverage benefits.

It appears that the view of the Comptroller is limited to local governments which are not participating in the State’s Employees’ Health Insurance Programs [NYSHIP]. 

Insofar as public employers participating in NYSHIP are concerned, Section 167-a of the Civil Service Law controls with respect to health insurance coverage available to NYSHIP retirees upon their becoming Medicare-eligible. 

With respect to public employers that do not participate in NYSHIP there may be provisions in a collective bargaining agreement that would control the health insurance participation of an entity's retirees upon their becoming Medicare-eligible.

Public official must claim his or her qualified immunity as a defense when sued in federal court

Public official must claim his or her qualified immunity as a defense when sued in federal court

Gomez v. Toledo, 64 L Ed 2d 548

The United States Supreme Court has ruled that a public official sued under 42 USC 1983 (The Civil Rights Act) must claim that the acts alleged to be discriminatory were performed in good faith if he or she seeks qualified immunity as a defense.

Duplicative FOIL requests

Duplicative FOIL requests
Badalamenti v Office of Dist. Attorney Nassau County, 2011 NY Slip Op 08588, Appellate Division, Second Department

The Nassau County District Attorney's Office rejected the FOIL request submitted by Anthony Badalamenti seeking the disclosure of certain telephone numbers and recordings of certain telephone calls.

In the proceeding before Supreme Court the District Attorney's Office had established that it had earlier provided Badalamenti with the information or records he sought pursuant to an earlier FOIL request or hat it did not have the records he demanded in its possession.

The Appellate Division held that FOIL does not require the custodian of the public records demanded, here the District Attorney’s Office, to furnish records it does not possess.

The court also ruled that Badalamenti was not entitled to additional copies of those records he sought that had previously be provided to him “unless he can show that the copies are no longer in his or his attorney's possession, a showing he failed to make.”

Access to documents under FOIL limited

Access to documents under FOIL limited

Sinicropi v. Nassau County, 76 AD2d 832

Sinicropi was denied access to certain records related to an administrative disciplinary proceeding.

Citing the McAulay decision (48 NY2d 659), the court refused to order the employer to give the Sinicropi the records he sought, which records the court described as intra-agency memoranda concerning an employee, notes and communications made in preparation of the disciplinary hearing and the transcript of the hearing.

The court viewed this materials as “pre-decisional intra-agency memoranda that are not reflective of final agency policy or determinations” and are therefore exempt from disclosure under the Freedom of Information Law.

Sinicropi had been given a copy of the charges preferred against an employee, the employee's answer to the charges, the "bill of particulars" of the charges and the stipulation of settlement of the disciplinary action. The Court held that further disclosure would be unnecessary and improper.

Human Rights Appeals Board review powers limited

Human Rights Appeals Board review powers limited

CBS v. State Human Rights Appeals Board, 76 AD2d 813

The Division of Human Rights had dismissed the complaint of discrimination filed by a former employee of CBS for lack of probable cause.

On appeal the Human Rights Appeals Board reversed the Division’s determination after making its own findings as to seniority and other matters concerning the complaint.

The Appellate Division held that in so doing the Appeals Board had exceeded its authority, substituting its own factual findings for that of the Division.

The Board’s function, said the court, is to determine whether the Division’s decision was based on substantial evidence or not.

The Appellate Division then reinstated the Division’s determination, stating that “in reversing [the Division] the Board must have been saying either that there was not substantial evidence or else that the ruling was arbitrary and capricious and an unwarranted exercise of discretion. There was no basis for this determination ... the Division’s expertise in evaluating discrimination claims may not be lightly disregarded.”