Employee's acceptance of an appointment from an open-competitive eligible list to another position may be deemed a resignation from the employee's former position

Employee's acceptance of an appointment from an open-competitive eligible list to another position may be deemed a resignation from the employee's former position

Supreme Court denied the petition of an individual seeking to annul the appointing authority’s:

[a] terminating him from his from his position during the required probationary period: and

[b] declining to reinstate the individual to his former “permanent position.”

According to the decision, the individual, then serving as a “Computer Aide,” was appointed to the position of “Computer Science Technician (CST), Level II” from an open-competitive eligible list.

The Appellate Division vacated the Supreme Court’s ruling and remanded the matter for a determination if the individual “effectively resigned* from his permanent position.”

The court explained that while an individual appointed from an open-competitive eligible list to the position from which he or she had been terminated during the probationary period would not be entitled to reinstatement to his or her prior, permanent position “if he voluntarily accepted his appointment to the new position, which would constitute an effective resignation from his prior, permanent position,” in this instance there was a triable issue of fact as to whether the individual “voluntarily accepted the appointment to the subsequent, probationary position.” Accordingly, the Appellate Division remanded the matter to Supreme Court for its further consideration.

A corollary issue that the Supreme Court may be required to explore: was the individual “promoted” to his or her new position within the meaning of the Civil Service Law? §63.1 of the Civil Service Law provides, in pertinent part, as follows:

When probationary service is required upon promotion, the position formerly held by the person promoted shall be held open for him [or her] and shall not be filled, except on a temporary basis, pending completion of his [or her] probationary term.

Typically “promotion” is the word of art used to describe the advancement of an individual from a lower grade position to a higher-grade position in the “line of promotion.” In the absence or exhaustion of a “promotion list,” an appropriate “open-competitive eligible list” may be used to fill the vacancy.

Indeed, in situations where a promotion examination is not expected to produce sufficient eligibles to fill all the vacancies, actual and anticipated, during the life of the eligible list, an open-competitive examination may be authorized to be held simultaneously with the promotion examination, with the resulting open-competitive eligible list to be certified upon the exhaustion of the promotion eligible list.

In Bethel v McGrath-McKechnie, 95 N.Y2d 7, the Court of Appeals ruled that an individual who accepts an original appointment to a position from an open-competitive examination effectively resigned from his or her former position. The Court of Appeals decided that Bethel had not been promoted and thus Section 63(1) did not apply to her situation.

Citing Engoren v County of Nassau, 163 AD2d 520, leave to appeal denied 77 NY2d 805, the court said that Section 63 provides job security to a permanent employee who is transferred or promoted to a position in which he or she is required to serve, but does not satisfactorily complete, a probationary period.

* Typically a resignation from a position is required to be in writing to be effective.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00397.htm

If the question before a court is one of pure legal interpretation of statutory terms, deference to the agency's interpretation of the statutory term in question is not required

If the question before a court is one of pure legal interpretation of statutory terms, deference to the agency's interpretation of the statutory term in question is not required

Kaslow v City of New York, 2013 NY Slip Op 00210, Appellate Division, Second Department

In this CPLR Article 78 proceeding David Kaslow asked Supreme Court to review a determination of the New York City Employees' Retirement System [NYCERS]. 

Kaslow had retired from employment with the New York City Department of Correction [DOC]. NYCERS however, had denied his request for service credit for his prior employment with the New York City Department of Environmental Protection [DEP] for purposes of determining his retirement allowance.

While Kaslow had contended that he was entitled to service credit for his prior employment with DEP, NYCERS said that in accordance with Retirement and Social Security Law §504-a, Kaslow, as a member of the Tier 3 CO-20 retirement plan, was not entitled to service credit for his civilian service with DEP prior to his employment with DOC.

Supreme Court granted Kaslow’s petition, holding that his service with the City's Department of Environmental Protection should have been credited. NYCERS and the City of New York appealed the court’s ruling.

The Appellate Division, noting that "An agency's interpretation of the statutes and regulations that it administers must be given great weight and judicial deference, so long as the interpretation is neither irrational, unreasonable nor inconsistent with the governing statute,'" said that in the event the question is one of pure legal interpretation of statutory terms, “deference to the agency is not required."

In this instance, said the court, NYCERS's interpretation of the term "credited service," was irrational, unreasonable, and inconsistent with the other applicable statutes governing the retirement benefits of officers employed with the DOC.

Accordingly, and under the circumstances presented in this instance, the Appellate Division concluded that for purposes of determining Kaslow retirement allowance upon his retirement from DOC, his creditable civilian service with DEP should have been included in NYCERS's calculation of his benefits, and, thus, Supreme Court had properly granted Kaslow’s petition.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00210.htm

Decisions by OATH Administrative Law Judges

Decisions by OATH Administrative Law Judges

New York City Office of Administrative Trials and Hearings 

Firefighter admitted using cocaine

Penalty recommended: termination and forfeiture of the vesting his pension recommended

A firefighter who tested positive for cocaine admitted to using the drug but argued that he should be permitted to vest his pension and retire when eligible to do so.

Administrative Law Judge Alessandra F. Zorgniotti noted that pursuant to the Department’s “zero tolerance policy,” termination of employment is the usual penalty for a first time positive test, in the absence of exacerbating or extenuating circumstances.

Judge Zorgniotti found that respondent failed to present sufficient evidence in mitigation to justify a lesser penalty and recommended termination of the individual’s employment, without an allowance that his pension be permitted to vest fully.

The decision is posted on the Internet at:

Fire Dep’t v. Arcello (in PDF), OATH Index No. 109/13 

New York State Comptroller Thomas P. DiNapoli to classify financial condition of local governments to identify local governments experiencing financial strain

New York State Comptroller Thomas P. DiNapoli to classify financial condition of local governments to identify local governments experiencing financial strain

On January 28, 2013, State Comptroller Thomas P. DiNapoli announced that his office has finalized plans to implement a statewide fiscal monitoring system that would publicly identify local governments experiencing financial strain. The monitoring system will include nine financial indicators, such as cash-on-hand and patterns of operating deficits, together with broader demographic information like population trends and tax assessment growth. The system will start by analyzing those localities whose fiscal year ended December 31, 2012 and later apply it to villages and school districts whose fiscal years end at various periods throughout the year.

DiNapoli’s office drafted the ‘early warning’ monitoring system in September 2012 and shared details of the proposal with all of the state’s local governments and school districts for their review during a 60-day comment period. More than 85 local government and school district officials, as well as a number of affiliated organizations, submitted comments.

Using data already submitted by more than 3,000 local governments, DiNapoli’s office will calculate and publicize an overall score of fiscal stress for approximately 2,300 municipalities and school district across the state. They will be listed as in “significant fiscal stress,” in “moderate fiscal stress,” “susceptible to fiscal stress,” or “not in fiscal stress.”

Once the monitoring system has identified local governments and school districts experiencing fiscal stress, an array of services will be offered by DiNapoli’s office including budget reviews, technical financial assistance, guidance on multi-year financial planning, financial management publications and training.

Additional information concerning the Comptroller’s fiscal stress monitoring system is posted on the Internet at: www.osc.state.ny.us/localgov/fiscalmonitoring/index.htm

Retirement to avoid disciplinary action

Retirement to avoid disciplinary action

A Los Angeles Unified School District teacher arrested and accused of sexually abusing students retired from his position before administrative disciplinary action had been initiated by the school district. School District Superintendent John Deasy, when asked what action the school district planned to take responded “Can you go back and fire someone who’s already retired?”*

An appointing authority of a New York State or political subdivision of the State is able do just that insofar as certain employees are concerned.

For example, 4 NYCRR 5.3(b), which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, provides, in pertinent part, provides that, Resignation, provides: that  “… when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his termination shall be recorded as a dismissal rather than as a resignation."** Many local civil service commissions have adopted a similar rule.

Presumably the appointing authority could elect to disregard a “retirement” under similar circumstances.***

In the case of an individual serving in a position in the classified service not otherwise entitled to a pre-termination disciplinary hearing pursuant to law or a collective bargaining agreement, the appointing authority presumably could elect to disregard the resignation, schedule a disciplinary hearing in the exercise of its discretion and in the event the individual is found guilty of the charge[s], record the separation as a “termination for cause” rather than as a resignation.

Undertaking such a disciplinary action could be significant with respect to employment in the public service in the future as application forms for employment or examination with the State or a political subdivision of the State typically  include the following questions.

1. Were you ever discharged from any employment except for lack of work, disability or medical condition?  [ ] yes  [ ] no  

2. Did you ever resign from any employment rather than face discharge? [ ] yes  [ ] no 

Failing to answer these questions correctly could result in the applicant being disqualified for such employment pursuant to §50.4(e), and, or (f) and, or (g) of the Civil Service Law by the responsible Civil Service Commission or Personnel Officer.

Many local civil service commissions and personnel officers have promulgated rules similar to 4 NYCRR 5.3(b).

*  See Los Angeles Times article on the Internet at:

http://latimesblogs.latimes.com/lanow/2013/01/teacher-molestation-principal-ignored-allegation.html

** State Education Law §1133.1 provides that “[a] school administrator or superintendent shall not make any agreement to withhold from law enforcement authorities, the superintendent or the commissioner, where appropriate, the fact that an allegation of child abuse in an educational setting on the part of any employee or volunteer as required by [Article 23-B of the Education Law] in return for the resignation or voluntary suspension from his or her position of such person, against whom the allegation is made.

*** See Mari v. Safir, 291 AD2d 298, leave to appeal denied, 98 NY2d 61

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week of January 21 - 25, 2013 [Click on the caption to access the full report]

DiNapoli Approves Terms of $3.14 Billion Tappan Zee Bridge Contract

State Comptroller Thomas P. DiNapoli last Friday announced he has approved a $3.14 billion contract between the state Thruway Authority and Tappan Zee Constructors to design and build the new Tappan Zee bridge.


Officers of Albany Nanotech Complex Safeguarding Public Funds

Fuller Road Management Corp., the not for profit corporation that runs the State University at Albany’s College of Nanoscale Science and Engineering, is fulfilling its duties to support and provide appropriate internal controls over operations and activities, and promoted an ethical business climate at the multi–billion dollar facility, according to a report released Friday by State Comptroller Thomas P. DiNapoli.


DiNapoli: State Tax Revenues Up, But Still Lag Projections

Tax collections through December totaling $46.4 billion were $48.3 million below the state’s latest estimates and $685.3 million below initial estimates in April. Higher than anticipated personal income tax collections in December likely reflect income paid before federal tax increases take effect in 2013 for high income taxpayers, New York State Comptroller Thomas P. DiNapoli said last week in releasing the December cash report.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli announced his office completed audits of:

the City of Beacon;

the Midway Fire District;

the Niagara Falls Housing Authority;

the Orleans County;

the Town of Otto; and,

the Village of Spring Valley.

Department of Health Medicaid Overpayments for Out-of-State Ambulatory Surgery Services (Follow-Up) (2012-F-26)

An initial audit report examining whether DOH was appropriately paying out-of-state providers for ambulatory surgery services provided to New York State Medicaid recipients found $12.2 million in actual and potential Medicaid overpayments for such services during the audit period. Following up, auditors found DOH and the Medicaid Inspector General made progress in addressing the issues identified in the initial audit. This included the recovery of $1,309,960.

Department of Health Monitoring of Medicaid Payments for Nursing Home Bed Reserve Days (Follow-Up) (2012-F-28)

An initial audit examined whether nursing home claims submitted to Medicaid for hospital bed reserve days were appropriate. During the five year audit period ended March 31, 2010, Medicaid paid $28 million for bed reserve claims that exceeded the bed reserve day limit. However, because reimbursement rates were the same for both standard and reserve care during our audit period, auditors determined no significant overpayments occurred. Auditors recommended DOH remind nursing homes of the correct way of coding for standard nursing home days and bed reserve days and implement controls within eMedNY to prevent payment of claims for bed reserve days in excess of prescribed limits. In a follow-up, auditors found DOH and the Office of the Medicaid Inspector General have taken significant actions in correcting the problems identified in the initial report.

Office of General Services Selected Employee Travel Expenses (2012-S-92)

As part of a statewide initiative to determine whether the use of travel money by selected government employees was appropriate, auditors examined travel expenses for the highest-cost travelers in the state as well as other outliers. These employees incurred more than $100,000 in travel expenses during the three year period ending March 31, 2011. Four of these employees worked at the Office of General Services (OGS) and had travel costs totaling $206,494. Auditors found the travel expenses for the four OGS employees selected for audit were documented and adhered to state travel rules and regulations.

New York State Department of Taxation and Finance Selected Employee Travel Expenses (2012-S-95)

As part of a statewide initiative to determine whether the use of travel money by selected government employees was appropriate, auditors examined travel expenses for the highest-cost travelers in the state as well as other outliers. These employees incurred more than $100,000 in travel expenses during the three year period ending March 31, 2011. Three of these employees worked at the Department Taxation and Finance with outliers in the areas of train fare, fuel and other miscellaneous travel expenses. The employees travel costs totaled $91,686. Auditors found that the travel expenses for the three employees selected for audit were documented and adhered to state travel rules and regulations.

Department of Agriculture and Markets Quality of Internal Control Certification (2012-S-47)

In 1987, the Legislature passed the New York State Governmental Accountability, Audit and Internal Control Act requiring State agencies and public authorities to each institute a comprehensive system of internal controls over their operations. By April 30 each year, DOB requires each covered agency to certify compliance with the act. Agriculture and Markets’ Internal Control Certification was submitted more than four months after the April 30 deadline, the department's certification did not provide an adequate level of detail describing specific actions it will take to address its partial compliance assessment of its internal audit function. Auditors recommended the department: re-examine priorities to accommodate the timely submission of the Internal Control Certification; provide appropriately detailed responses to questions as requested in the annual Internal Control Certification; and expand and enhance the internal control training and education program to cover all aspects of internal controls for all staff levels.

Tuition Assistance Program, Pace University (2012-T-1)

Auditors determined that Pace’s certification procedures are appropriately designed and were substantially complied with during the audit period for the transactions we tested. Auditors concluded there is not a high risk that a significant number of students certified for TAP are not eligible for awards.  Nonetheless, tests did disclose ten awards totaling $21,236 that school officials incorrectly certified in error.

State Comptroller Thomas P. Dinapoli recommends that municipalities conduct background checks of employees providing youth program services

State Comptroller Thomas P. Dinapoli recommends that municipalities conduct background checks of employees providing youth program services

Source: Office of the State Comptroller

Local governments could do more to conduct background checks on individuals working in municipal youth program services, according to an audit released today by New York State Comptroller Thomas P. DiNapoli.

“Failing to perform background checks potentially jeopardizes the safety of children,” said DiNapoli. “It is essential that local officials take action to ensure they are consistently screening all persons who provide youth program services in their communities. Parents need to trust that all of the necessary steps have been taken to keep their children out of harm’s way.”

From January 2010 through May 2012, auditors examined youth program activities in the cities of Binghamton, Middletown, New Rochelle and Utica; as well as the towns of Amherst, Clifton Park, Manlius and Seneca Falls. These municipalities offer activities to more than 409,000 residents.

The Comptroller’s audit found seven of the eight municipalities did not conduct background checks on all of the individuals who deliver their youth program services. Only one, the town of Clifton Park [in Saratoga County], annually screened all program personnel against the state’s sex offender registry and other resources.

Two municipalities, the town of Manlius and the city of New Rochelle, did not screen applicants at all, except for those personnel providing programs where state law mandates screening. The remaining five municipalities performed some screening, but did not do it consistently or did not document the date and results of the screening process.

Of the 1,994 individuals working in youth program services in these municipalities, the Comptroller’s audit did not identify any persons with sex offender or significant criminal histories.

The Comptroller’s audit findings also include:

·        Four of the five municipalities that used volunteers did not check volunteers’ criminal history;

·        Five municipalities that hired contracted workers to offer program services did not screen these workers for sexual offenses prior to delivering services; and

·        Six municipalities performed some variety of background checks for new employees.

Municipal youth programs can include pre-school or afterschool activities, arts and crafts, exercise and fitness, summer camps, seasonal or holiday special events, sports, employment and literacy programs, safety programs, swim programs and therapeutic programs. Background checks are currently required by state law or regulation only for individuals who have contact with children in camps, childcare programs and therapeutic programs.

DiNapoli recommended municipalities conduct background checks for all employees, volunteers and contractors involved in youth programs. Minimally, local officials should utilize the sex offender registry maintained by the New York State Division of Criminal Justice Services. They can also perform various types of criminal history background checks and develop their own procedures to limit liability and ensure the safety of participating children.

Local officials generally agreed with the audit findings and the Comptroller’s recommendations. Their responses are included in the final audit report.

For a copy of the report visit: http://www.osc.state.ny.us/localgov/audits/swr/2013/backgroundchecks/global.pdf

Unless meeting specified time requirements to advance a grievance to the next step is expressly set out in a collective bargaining agreement, timeliness is an issue for the arbitrator to resolve

Unless meeting specified time requirements to advance a grievance to the next step is expressly set out in a collective bargaining agreement, timeliness is an issue for the arbitrator to resolve

Matter of Board of Educ. of The Rondout Val. Cent. Sch. Dist. (Rondout Val. Fedn. of Teachers), 2012 NY Slip Op 08862, Appellate Division, Third Department

The relevant collective bargaining agreement (CBA) spelled out time frames for the processing of grievances and included a clause stating "[t]he failure on the part of [Rondout Valley Federation of Teachers] to advance a pending grievance to the next stage within the time periods set forth herein shall constitute an abandonment of the grievance."

Certain grievances proceeded through the initial procedural stages of the grievance procedure set out in the CBA and ultimately the Federation filed demands for arbitration of these grievances with American Arbitration Association. Contending that these grievances were not processed consistent with the time requirements spelled out in the CBA and were thus “abandoned,” the school district filed a petition pursuant to CPLR 7503 (b) seeking to stay the arbitrations.

Supreme Court granting the district's petition for a stay, holding that “the submission of a timely demand for arbitration constituted a condition precedent to the filing for arbitration” and the Federation appealed.

The Appellate Division vacated the lower court’s decision with respect to the Federation’s demands for arbitration. The court explained that “Where a collective bargaining agreement contains a broad arbitration clause, the question of whether a party has complied with the procedural requirements of the grievance process — such as time limitations — is to be resolved by an arbitrator absent ‘a provision expressly making compliance with the time limitations a condition precedent to arbitration.’"

Rejecting the school district’s argument that the provision in the CBA's specifying that non-adherence to time limits set out in the CBA constituted an "abandonment" of the grievances and thus precluded advancing them to arbitration, the Appellate Division held that the CBA did not expressly condition access to arbitration on adherence to the time limits set out in the grievance procedure.

Accordingly, the Appellate Division ruled that the question of whether the Federation’s grievances were timely filed is a question of "procedural arbitrability" to be resolved by an arbitrator.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08862.htm

Overhauled Hatch Act takes effect on January 27, 2013

Overhauled Hatch Act takes effect on January 27, 2013

Source: NYMUNIBLOG published by Harris Beach PLLC*. Reproduced with permission. Copyright © 2013, All rights reserved.

Kevin P. Ryan, Esq. has posted the following item explaining certain changes resulting from the recently amended Hatch Act on the Harris Beach PLLC blog NYMUNIBLOG. Mr. Ryan writes:

"On December 28, 2012, President Obama signed into law an overhaul of the Hatch Act that eased the restrictions on state or local government employees seeking elected office.

"The Hatch Act, as it existed prior to the enactment of the recent legislation (S. 2170), prohibited state and local government employees whose employment was connected to activities receiving federal funding from running as candidates for partisan political office; from using their official authority to influence an election or nomination; or pressuring or advising another state or local employee to make a political contribution.

"Since the old legislation applied to state and local government employees whose employment was broadly defined as “being in connection with activities receiving federal funding,” it served as a blanket prohibition of nearly all state and local government employees from running for office. 

"By way of example, after Robert J. Duffy resigned as mayor of the City of Rochester to become the lieutenant governor, the then deputy mayor, Thomas S. Richards, was sworn in as acting mayor. After a Hatch Act complaint was filed, Richards was forced to resign that position in order to run in a special election to succeed Mayor Duffy, forcing the appointment of a separate acting mayor in the interim.

"The new legislation relaxes that restriction and takes effect January 27, 2013.

"The legislation approved by Congress and signed into law by the president removes the prohibition on certain state and local employees running for elected office unless their salary is paid entirely by federal funds.  Thus, in relaxing the restriction to employees whose employment is in connection with activities receiving federal funding to those only whose salaries are funded entirely with federal funds, the ability of state and local government employees to run for political office is expanded.

"While the new legislation does expand the ability of state and local government employees to run for office, it still prohibits employees whose employment is “in connection with an activity supported by federal funding” from using their official authority to affect an election or nomination or to coerce or advise another state or local employee to make a political contribution. The new legislation also keeps in place the exemption of the governor, lieutenant governor, the mayor of a city, or other elected official from being subject to the terms of the Hatch Act."

* NYMUNIBLOG.COM was created and is maintained by the law firm of Harris Beach PLLC as a public service. For more information about NYMUNIBLOG please go to: http://nymuniblog.com/

NYPPL comment:.See, also, Civil Service Law §107 "Prohibition against certain political activities; improper influence."

Postings on Internet social networks deemed inappropriate may result in disciplinary action

Postings on Internet social networks deemed inappropriate may result in disciplinary action

1 .Rubino v City of New York, 34 Misc 3d 1220(A)

2. In re Tenure Hearing of Jennifer O’Brien, A-2452-11T4, Appellate Division, New Jersey Superior Court

3. Fire Department v Palleschi, OATH Index #551/11

4. Decisions of the Commissioner of Education, Decision 16,121

The posting of material on social networks such as Facebook alleged to be inappropriate has resulted in disciplinary action being initiated against educators; students and employees.

Examples of such disciplinary actions are set out below:

The Rubino case: This decision by New York State Supreme Court Justice Barbara Jaffee illustrates the consequences that may result from a posting on an individual’s Facebook "wall" that the employer subsequently determined was inappropriate. In this instance the posting by a teacher of material deemed inappropriate resulted in disciplinary charges alleging “misconduct, neglect of duty and conduct unbecoming her profession” being filed against the educator by the appointing authority. [See 34 Misc 3d 1220(A].

The O’Brien case: In re Tenure Hearing of Jennifer O’Brien, No. A-2452-11T4 (N.J. Super. Ct., App. Div. Jan. 11, 2013), the Appellate Division, New Jersey Superior Court, sustained a decision by an administrative law judge, affirmed by New Jersey’s Commissioner of Education, upholding the school district’s termination of an elementary school teacher for posting derogatory remarks about her students on Facebook. The court decided that the teacher’s remarks were not protected by the First Amendment of the U.S. Constitution as the remarks were not made on a matter of public concern.

The Palleschi case: In Fire Department of the City of New York v Palleschi, OATH Index #551/11, a New York City emergency medical technician [EMT] was served with disciplinary charges that alleged such postings resulted in “bringing the agency into disrepute and showing disrespect to the public.” OATH Administrative Law Judge Joan Salzman recommended the termination of  the EMT, who admitted that he had posted private and confidential patient information on his Facebook page, "where 460 of his friends could see it for their amusement."

The Appeal of G.I. case: Commissioner of Education Decision 16,121 considered disciplinary action initiated against a student alleged to have engaged in cyber-bullying. The appeal, Appeal of G.I, on behalf of her daughter K.I., from action of a Board of Education, concerned an alleged threatened “fist fight” resulting from a dispute following the publication of "inappropriate statements" about C.H. on C.H.’s “Facebook” page placed there by K.I.and another student, D.N. K.I. admitted to her teacher that she and D.N. had C.H.’s Facebook password and that they posted the derogatory statements. The Commissioner of Education sustained the school principal’s decision, approved by the school superintendent and the school board, to remove K.I. from her classroom for one day and have her spend the day under the supervision of an administrator.

In any event, there is another lesson here: posting information on a social network may prove to be an example of the Doctrine of Unintended Consequences should such postings be targeted for the purposes of discovery in the course of litigation or arbitration. 

This is a legal issue that courts being asked to address with increasing frequency. In Patterson v Turner, 88 AD3d 617, the court ruled that material on Facebook, if relevant, was subject to discovery while in Abrams v. Pecile, 83 A.D.3d 527, the court declined to permit discovery of material posted on social network sites because the party seeking such access was unable to demonstrate that such material would be relevant in the lawsuit. Presumably the same criteria would be used in situations involving efforts to obtain information posted on a social network account such as Facebook in an administrative disciplinary action or an arbitration.

The Rubino decision is posted on the Internet at:

 http://www.courts.state.ny.us/reporter/3dseries/2012/2012_50189.htm

The O’Brien decision is posted on the Internet at:

https://www.judiciary.state.nj.us/opinions/a2452-11.pdf

The Palleschi decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-192.pdf

The Commissioner’s decision in Matter of K.I. is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume50/d16121.htm