The Freedom of Information Law does not require an agency to formulate a final determination in the event there is none in existence

The Freedom of Information Law does not require an agency to prepare a "final determination" in the event there is none in existence 
Correction Officers' Benevolent Assn. v New York City Dept. of Corr., 2018 NY Slip Op 00522, Appellate Division, First Department

Supreme Court denied the Correction Officers' Benevolent Association [COBA] petition to compel the New York City Department of Corrections [Corrections] to produce all information pertaining to Correction's decision not to promote the individual petitioners from Correction Officer to Correction Captain it sought in its Freedom of Information Law (FOIL) request.

The Appellate Division affirmed the lower court's ruling, explaining that Corrections had met  its burden of "articulating a particularized and specific justification for denying access" to the requested documents on the grounds that the documents were exempt from disclosure as nonfinal intra-agency materials that "are entirely advisory in nature and rendered only to aid the actual decision-maker[s]"

The court rejected COBA's argument that the requested documents are "effectively the final documents because there are no later documents providing reasons for the failures to promote, other than the conclusory notification letters that the candidates were passed over."

Noting that Corrections admitted that the decision makers considered the requested documents in determining whom to promote, it stated that no documents exist encapsulating the final decision, other than the notice it provided to COBA.

Finding that there was no statutory basis to look beyond Correction's representation the Appellate Division the Appellate Division, citing Kheel v Ravitch, 93 AD2d 422, 430 [1st Dept 1983], affd 62 NY2d 1, noted that FOIL does not require agencies "to formulate a final determination where none exists."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_00522.htm

There is no public policy bar to arbitrating a grievance concerning compensation to be paid to employees performing duties that constitute "out-of-title" work

There is no public policy bar to arbitrating a grievance concerning compensation to be paid to employees performing duties that constitute "out-of-title" work

Matter of City of Watertown (Watertown Professional Firefighters' Assn. Local 191), 2018 NY Slip Op 00743, Appellate Division, Fourth Department

In its grievance and demand for arbitration, Watertown Professional Firefighters' Assn. Local 191 [Local 191] alleged that the City of Watertown [Watertown] violated the parties' collective bargaining agreement [CBA] with respect to the assignment and compensation of firefighters who performed out-of-title work as Acting Captains. Supreme Court denied Watertown's Article 75 petition to permanently stay the arbitration of Local 191's grievance.

The Appellate Division sustained Supreme Court's ruling, rejecting Watertown's claim that that arbitration of the grievance was contrary to public policy and, or, certain provisions of Watertown's City Charter with respect to the authority of the City Manager in such matters.

As a general proposition, said the court, arbitration of an out-of-title work dispute is not contrary to public policy, citing County of Rockland v Rockland County Unit of Rockland County Local of Civ. Serv. Empls. Assn., 74 AD2d 812, affd for reasons stated 53 NY2d 741]

Further, the Appellate Division opined that arbitration of the out-of-title work dispute was not inconsistent with the authority of the City Manager to approve expenditures of Watertown's funds or to act as administrative head of the Watertown Fire Department.

Concluding that the parties agreed to arbitrate contract grievances, the Appellate Division ruled that the dispute concerning out-of-title work "is reasonably related to the general subject matter of the CBA."

In so doing, the court rejected Watertown's argument that the arbitration of the out-of-title work grievance should be stayed because compensation for such work falls within the meaning of salary,' which is expressly excluded from the CBA's definition of grievance.'"

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_00743.htm

Summarily removing public officers and employees from their positions

Summarily removing public officers and employees from their positions

PHH Corporation v Consumer Financial Protection Bureau, USCA, District of Columbia Circuit, Docket #15-1177

Except in instances where the appointment and removal process of a public officer or employee is set by federal or state law, it is "black letter law" that the power of appointment implies the power of removal.[1]In such cases the individual is characterized as serving at the pleasure of the appointing authority and thus may be summarily terminated from his or her position, provided, however, such termination is not based on factors that would otherwise constitute unlawful discrimination on the part of the appointing authority or otherwise constitute a violation of the Constitution of the United States or a state's constitution or a federal or state law, rule or regulation. Indeed, some instances an officer or employee "serving at will" may be terminated because of his or her political affiliation.[2]

In the event a public officer or employee is appointed for a fixed term of office, may such an individual be summarily removed from his or her position by the appointing authority? Typically, such an officer or employee may only be removed for cause, after notice and hearing.[3]

In PHH Corp. v Consumer Financial Protection Bureau, the US Circuit Court, District of Columbia Circuit, concluded that a federal administrator appointed for a fixed term of office may only be removed for cause after notice and hearing. The Circuit Court ruled that the structure of the Consumer Financial Protection Bureau [CFPB] is constitutional and that its director[4]can be terminated by the President only for cause.

In a split-decision, the majority of the court held, in pertinent part, that:

1. "Congress established the independent CFPB to curb fraud and promote transparency in consumer loans, home mortgages, personal credit cards, and retail banking."[5] 

2. "The Supreme Court eighty years ago[6] sustained the constitutionality of the independent Federal Trade Commission, a consumer -protection financial regulator with powers analogous to those of the CFPB."

3. "In doing so, the Supreme Court approved the very means of independence Congress used here: protection of agency leadership from at-will removal by the President. The Court has since reaffirmed and built on that precedent, and Congress has embraced and relied on it in designing independent agencies . We follow that precedent here to hold that the parallel provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act shielding the Director of the CFPB from removal without cause is consistent with Article II."

In the words of the Circuit Court of Appeals:

"Applying binding Supreme Court precedent, we see no constitutional defect in the statute preventing the President from firing the CFPB Director without cause. We thus uphold Congress’s choice."   

As NYPPL noted that with respect to summarily terminating the Director of the Federal Bureau of Investigation, federal law provides that:

"(b) Effective with respect to any individual appointment by the Effective date ... after June 1,1973, the term of service of the Director of the Federal Bureau of Investigation shall be ten years [emphasis supplied]. A Director may not serve more than one ten-year term. The provisions of subsections (a) through (c) of section 8335 of title 5, United States Code, shall apply to any individual appointed under this section.". 

Removal of a public officer having a fixed term of office is not unknown in New York State. For example, §36 of the State's Public Officer Law provided for the removal of town, village, improvement district or fire district officer by court whereby:

"Any town, village, improvement district or fire district officer, except a justice of the peace, may be removed from office by the supreme court for any misconduct, maladministration, malfeasance or malversation in office. An application for such removal may be made by any citizen resident of such town, village, improvement district or fire district or by the district attorney of the county in which such town, village or district is located, and shall be made to the appellate division of the supreme court held within the judicial department embracing such town, village, improvement district or fire district. Such application shall be made upon notice to such officer of not less than eight days, and a copy of the charges upon which the application will be made must be served with such notice."

Another example: §5.2 of the New York Civil Service Law provides that the New York State Civil Service Commission consists of three Commissioners appointed by the Governor, by and with the advice and consent of the State Senate, "not more than two of whom shall be adherents of the same political party."

The Governor designates one of the members of the Commission to be President of the Commission and "such member shall serve in the capacity of President during the pleasure of the governor." Although the President of the Commission serves in that capacity at the pleasure of the Governor, in the event he or she is removed from the position of President, he or she would revert to his or her position as a member of the Commission for the remainder of his or her six-year term of office.

In all probability the US Supreme Court will be asked to consider the Circuit Court's decision in PHH Corporation v Consumer Financial Protection Bureau.

The decision is posted on the Internet at:

https://www.cadc.uscourts.gov/internet/opinions.nsf/B7623651686D60D585258226005405AC/$file/15-1177.pdf

---

[1] Bruso v County of Clinton, 139 AD3d 1166; City Council of Mount Vernon v Batra, 82 AD3d 1224.

[2]Branti v Finkel, 445 US 507

[3]In some situations it may be possible to discontinue the services of an incumbent in the event he or she becomes mentally or physically unable to satisfactorily perform the duties of the position.

[4]The Director of the CFPB is appointed for a five year term of office

[5]See 12 U.S.C. §5481(12).

[6]Humphrey’s Executor v United States , 295 U.S. 602.

Law enforcement and corrections resources

Law enforcement and corrections resources

Source: AELE

1. New AELE Monthly Law Journal article

Constitutionality of Postcard-Only Policy for Incoming Prisoner Mail.
View at http://www.aele.org/law/2018all02/2018-02MLJ301.pdf

2. Seminars:

AELE's next seminar is on Use of Force in Las Vegas on April 30-May 3, 2018. For more information and to register click here: http://www.aele.org/menu-lethal.html

Use of Force by law enforcement and correctional personnel is in the news every day.  This comprehensive 4-day program covers all major aspects of use of force.  It includes the use of lethal and non-lethal force, investigation and adjudication of use of force incidents, and complaints of excessive force.  It also includes psychological and bio-mechanical aspects of the use of force. Attendance at this program satisfies one of the requirements for the AELE Certified Litigation Specialist (CLS) Designation.  Information on the CLS designation may also be found on the AELE web site at http://www.aele.org/cls-info.html

Discipline and Internal Investigations. Las Vegas on Oct. 29-Nov. 1, 2018.

For more information and to register click here:   http://www.aele.org/menu-disc.html

3. February 2018 issues of AELE's three periodicals have been uploaded.

The current issues, back issues since 2000, and case digests since 1975 are FREE. Everyone is welcome to read, print or download AELE publications without charge. The main menu is at: http://www.aele.org/law

4. Law Enforcement Liability Reporter

This issue has cases on dogs, false arrest/imprisonment: warrant, firearms related: intentional use, firearms related: Second Amendment issues, First Amendment, gang activity, and privacy.

View at http://www.aele.org/law/2018all02/LR2018FEB.html

5. Fire, Police & Corrections Personnel Reporter

This issue has cases on arbitration procedures, handicap/abilities discrimination: regarded as disabled, political discrimination, retaliatory personnel actions, retirement rights and benefits, union activity, veterans and other preferences laws, and workers' compensation.

View at http://www.aele.org/law/2018all02/FP2018FEB.html

6.  Jail and Prisoner Law Bulletin

This issue has cases on access to courts/legal info, Federal Tort Claims Act, mail, Prison Litigation Reform Act: exhaustion of remedies, prisoner assault: by inmate, prisoner transport, religion, sex offenders, and visitation.
View at http://www.aele.org/law/2018all02/JB2018FEB.html

7. Selected criminal law and procedure cases are at three other free websites.

https://www.fletc.gov/the-informer
http://www.kenwallentine.com/Xiphos.html
http://le.alcoda.org/publications/point_of_view/

Determining the employee status of an individual for the purposes of maintaining a Title VII civil rights action

Determining the employee status of an individual for the purposes of maintaining a Title VII civil rights action

Knight v State University of New York at Stony Brook, USCA, 2nd Circuit, Docket No. 17-54-cv

Anthony Knight, an African-American electrician, sued State University of New York at Stony Brook, alleging that Defendant violated Title VII of the Civil Rights Act of 1964 when it terminated his employment after he reported racist graffiti in a bathroom located at his worksite.

At the trial Stony Brook contended that Knight was not an employee for purposes of Title VII as was an electrician and a member of the International Brotherhood of Electrical Workers, Local 25. Local 25 had an arrangement with Stony Brook under which it referred union electricians to Stony Brook when additional workers were needed to supplement its workforce during large construction projects.

When Knight moved for judgment as a matter of law that he was Stony Brook's employee the United States District Court judge denied Knight’s motion and submitted the issue to the jury. The jury found that Knight was not an employee and thus Stony Brook was not the employer for the purposes of Title II.

On appeal, the Circuit Court of Appeals affirmed the District Court's judgment, holding that Knight was not an employee of Stony Brook.

In response to Knight's argument that the court rather than the jury should have decided his employment status, the Circuit Court explained that whether a jury may determine a plaintiff’s status as an employee presents a question of law, citing Kirsch v. Fleet Street, Ltd., 148 F.3d 149. 

In Kirsch the Circuit Court had rejected the argument that submitting the question to a jury is prejudicial error, the same contention Knight advanced in this action, noting that whether an individual is an employee is “regularly presented to juries that are instructed to return general verdicts, informed by the court’s instructions on the law and given the direction that if they find that the plaintiffs in question were employees . . . they should simply state that they find in favor of the plaintiffs.”*  

The question as to whether an individual is an employee of a defendant in a Title VII action was considered in Community for Creative Non-Violencev. Reid, 490 U.S. 730. Borrowing from the common law of agency, the Supreme Court established a "non-exhaustive list of thirteen factors which guide the determination of employee status," the so-called Reid factors,  set out below:

1. The hiring party’s right to control the manner and means by which the product is accomplished;

2. The skill required;

3. the source of the instrumentalities and tools;

4. the location of the work;

5. The duration of the relationship between the parties;

6. Whether the hiring party has the right to assign additional projects to the hired party;

7. The extent of the hired party’s discretion over when and how long to work;

8. The method of payment;

9. The hired party’s role in hiring and paying assistants;

10. Whether the work is part of the regular business of the hiring party;

11. Whether the hiring party is in business;

12. The provision of employee benefits; and

13. The tax treatment of the hired party.

Although Knight had shown that Stony Brook provided some of his tools, it was also shown that the electricians were required to supply their own basic tools. When Knight argued that he was an employee because Stony Brook provided him with benefits, Stony Brook produced evidence that the benefits were in fact paid to the union, which was charged with dispersing the benefits to individual members.

Although Knight presented uncontradicted evidence that he was paid by checks issued by the New York State Comptroller and was treated as an employee for tax purposes, Stony Brook, in turn, presented undisputed evidence that the construction work for which Knight was hired was not its usual business and that the duration of his employment was brief.

The District Court instructed the jury to consider and balance the Reid factors in determining Knight’s employment status. The jury returned a verdict finding that Knight was not an employee of Stony Brook. Finding no error requiring the reversal of the jury’s finding that Knight was not an employee of Stony Brook, the Circuit Court affirmed the judgment of the District Court.

* The Circuit Court also noted that in Baker v. Tex. & Pac. Ry.Co., 359 U.S. 227, "the Supreme Court has held that a jury may decide the employer/employee issue in Federal Employers’ Liability Act cases."

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/52db75a2-2f70-4d17-94d2-3dcd7b690f79/1/doc/17-54_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/52db75a2-2f70-4d17-94d2-3dcd7b690f79/1/hilite/

Vacating an arbitrator's award concerning a matter submitted to compulsory arbitration

Vacating an arbitrator's award concerning a matter submitted to compulsory arbitration

Dikovskiy v New York City Bd. of Educ., 2018 NY Slip Op 00231, Appellate Division, First Department

Gennadiy Dikovskiy filed petition pursuant to CPLR Article 75 seeking a court order vacating an arbitration award. Supreme Court granted Dikovskiy's petition and denied the New York City Board of Education's motion to dismiss her Article 75 action.

The Appellate Division affirmed the lower court's ruling vacating the penalty imposed.

Citing Matter of Asch v New York City Bd./Dept. of Educ., 104 AD3d 415, the Appellate Division explained that "Where, as here, the parties have submitted to compulsory arbitration, the hearing officer's determination must be in accord with due process, supported by adequate evidence, and rational, and must not be arbitrary and capricious."

Finding that Supreme Court "properly concluded that the hearing officer's determination was arbitrary and capricious, and not supported by the record," the Appellate Division noted that:

1. There was no evidence that Dikovskiy's conduct toward a student violated any rule or regulation or was otherwise inappropriate;

2. The Board of Education's various training materials encouraged teachers to interact with students outside the classroom to foster student development;

3. The alleged "inappropriate" conduct with which Dikovskiy was charged "was not sufficiently defined so as to put Dikovskiy on notice as to what constituted misconduct; and

4. The Appellate Division's review of the video in evidence did not demonstrate that Dikovskiy had "engaged in any inappropriate behavior with a student."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_00231.htm

Collecting attorney fees from the losing party

Collecting attorney fees from the losing party

Dechbery v Cassano, 2018 NY Slip Op 00228, Appellate Division, First Department

The Appellate Division held that Supreme Court properly exercised its discretion in denying Eileen Dechbery attorneys' fees in this proceeding seeking to vindicate her rights pursuant to Civil Service Law §71.*

 

Citing Matter of A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, the court said that the general rule is that in Article 78 proceedings, "the prevailing party may not collect [attorneys' fees] from the loser unless an award is authorized by agreement between the parties or by statute or by court rule." However, observed the court, a petitioner in an Article 78 proceeding may be entitled to attorneys' fees under 42 USC §1988 where she asserts a substantial federal constitutional claim.

In this instance the Appellate Division said that Dechbery was not entitled to an award of attorney's fees as she has not successfully asserted a substantial federal constitutional claim in the proceeding. Although she alleges that her due process rights were violated, the mere fact that respondents mailed her notice of termination letter to her prior address does not constitute a violation of her due process rights as she was provided with post-termination due process.

Further, the court observed that Dechbery had failed to establish her entitlement to an award of attorneys' fees under the New York State Equal Access to Justice Act (CPLR Article 86).

* Civil Service Law §71 provides for leaves of absence in the event an employee’s injury or disease is “work connected” and is typically referred to as “workers’ compensation leave. The appointing authority may, as an exercise of discretion, terminate an employee absent on §71 Worker’s Compensation Leave after he or she has been absent on such leave due to the same injury or disease for an accumulative period of one year or longer.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_00228.htm

Signing a general release of all claims accruing up to the settlement date

Signing a general release of all claims accruing up to the settlement date
Harrington v City of New York, 2018 NY Slip Op 00381, Appellate Division, First Department

In this employment discrimination and retaliation action, Michael Harrington alleges that the City of New York, et al, [Defendants] discriminated against him on the basis of his sexual orientation by refusing to employ him as a police officer and that Defendants also retaliated against him for a previous lawsuit plaintiff filed against the Defendants in 2007.

The 2007 action alleged discrimination, retaliation and harassment. The parties settled the 2007 lawsuit on December 12, 2013, with Harrington signing a general release of all claims accruing up to the settlement date, in exchange for a $185,000 payment from the Defendants.

After settlement, the New York Police Department [NYPD] instructed Harrington to proceed with his then-pending 2010 application, and he underwent another psychological evaluation. His application  remained on hold for nearly one year before the NYPD found Harrington not psychologically suited to serve as a police officer. The disqualification was based on the police psychologist's finding that plaintiff "relied chiefly on litigation to resolve issues," and cited plaintiff's 2007 action as evidence of his "poor stress tolerance."

Harrington,after exhausting his administrative remedies, initiated the instant litigation asserting causes of action for discrimination and retaliation under the State and City Human Rights Laws [HRLs]. He sought damages and an order directing the Defendants to appoint him to the NYPD. Supreme Court dismissed the causes of action. The Appellate Division reinstated Harringtoncauses of action, explaining that his complaint, "as amplified by [Harrington's] affidavit and psychological report, states claims for both discrimination and retaliation."

Harrington had stated a claim of invidious discrimination under the State and City HRLs by alleging (1) that he or she is a member of a protected class, (2) that he or she was qualified for the position, (3) that he or she was subjected to an adverse employment action (under State HRL) or he or she was treated differently or worse than other employees (under City HRL), and (4) that the adverse or different treatment occurred under circumstances giving rise to an inference of discrimination.

The Appellate Division, "affording plaintiff the benefit of every favorable inference, establishes prima faciethat defendants discriminated against plaintiff on account of his sexual orientation in finding him psychologically unfit to serve," said that "To make out a prima facie claim of retaliation under the State HRL, a plaintiff must show that (1) he/she has engaged in a protected activity, (2) his/her employer was aware of such activity, (3) he/she suffered an adverse employment action based upon the activity, and (4) a causal connection exists between the protected activity and the adverse action."*

Plaintiff alleges that in retaliation for his having commenced the 2007 action against the Defendants, they placed a psychological hold on his present application for employment in 2014, and ultimately found him psychologically unfit for the position.**

As an initial matter, Harrington's retaliation claims are not barred either by his settlement of the 2007 action, or by the general release of all claims that he could have asserted against the Defendants until that time. The alleged facts underlying the retaliation claims occurred in February 2014, and were not, said the court, precluded by the general release executed before that date, which waived only causes of action "up to . . . and including the date of the execution of this General Release."

The Defendants had contend that the 2007 action is not sufficiently temporally proximate to the alleged adverse action to support the causal connection necessary for plaintiff's retaliation claim. The Appellate Division disagreed, finding that although "temporal proximity between a protected activity and an adverse employment action may, under some circumstances, be sufficient in itself to permit the inference of a causal connection necessary for a retaliation claim, the fact that actions are not temporally proximate is not necessarily fatal to a retaliation claim. The absence of temporal proximity will not defeat the claim, where, as here, there are other facts supporting causation."

In finding Harrington psychologically unfit, the Defendants' police psychologist relied on Harrington's 2007 action against the Defendants. Specifically, the police psychologist's report stated that Harrington had "poor stress tolerance" and relied "chiefly on litigation to resolve issues." The Appellate Division held that the 2007 litigation served as the psychological disqualifier and was sufficient to plead the causal connection between the protected activity and the adverse action in this case.

* Under the City HRL, the test is similar, though rather than an adverse action, the plaintiff must show only that the defendant "took an action that disadvantaged" him or her.

** In finding plaintiff psychologically unfit, defendants' police psychologist relied on plaintiff's 2007 action against defendants. Specifically, the police psychologist's report stated that plaintiff had "poor stress tolerance" and relied "chiefly on litigation to resolve issues." The Appellate Division ruled that the 2007 litigation serving as the psychological disqualifier is sufficient to plead the causal connection between the protected activity and the adverse action in this case.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_00381.htm

The tolling of the statute of limitations when litigating a federal civil rights claim

The tolling of the statute of limitations when litigating a federal civil rights claim

Artis v District of Columbia, USSC, Docket 16-460

28 USC Section 1367(d) provides that the “period of limitations for” to refile a cause of action for a claim in State court  “shall be tolled while the claim is pending [in federal court] and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.”

Stephanie C. Artis filed lawsuit in federal court against the District of Columbia alleging a federal employment discrimination claim. Artis also filed three related claims under D.C. law.

At the time Artis filed the related claims nearly two years remained on the statute of limitations for timely filing of the D.C. law claims.

More than two years later the federal district court rejected Artis' federal claim and dismissed her D.C.-law claims. Artis then filed her D.C. law claims in the D.C. Superior Court 59 days later. Superior Court dismissed those actions as time-barred and the D.C. Court of Appeals affirmed.

Supreme Court reversed, rejecting the District of Columbia's argument that 28 USC Section 1367(d) merely provided a grace period and the statute of limitations continued to run while the claim was pending in another forum.

The Supreme Court disagreed, explaining that the plain meaning of the statutory language, 28 USC Section 1367(d) indicated that the provision was a tolling provision, suspending the running of the statute of limitations both while the claim is pending in federal court and for 30 days after a dismissal of the federal action.

The decision is posted on the Internet at:

https://www.supremecourt.gov/opinions/17pdf/16-460_bqm2.pdf

Appellate Division affirms Supreme Court's decision that the winning candidate for elected office was ineligible to assume the office

Appellate Division affirms Supreme Court's decision that the winning candidate for elected office was ineligible to assume the office

Szymanski v Albanna, 2018 NY Slip Op 00378, Appellate Division, Fourth Department

In 2006, Mohamed Albanna, the defendant in this action, pleaded guilty to the federal crime of operating an unlicensed money transmitting business in violation of 18 USC §1960. He was sentenced to five years in prison and three years of probation.

In his plea agreement, Albanna acknowledged that had operated an illegal money transmitting business that transmitted more than $3.5 million to Yemen over a 13½-month period, in the course of which he [1] transmitted money to Yemen from individuals who did not fully and accurately identify themselves; [2] failed to inquire about the source of the money or why it was being sent; and [3] "made false entries in a money transfer ledger to hide the identities of certain senders and recipients." Albanna also acknowledged that he failed to file required currency transaction reports for cash transactions in excess of $10,000 and that he "knew that his business did not have the required license to transmit money."

In 2017, Albanna ran for election to the office of Councilman, for the 1st Ward of the of Lackawanna and received a majority of votes. Geoffrey M. Szymanski and the City of Lackawanna, as the Plaintiffs in this action, asked Supreme Court to declare that Albanna was ineligible to assume the City office of Councilman, 1st Ward.

Plaintiffs argued that §14.9 of the City Charter provides that "[a] person convicted of a crime or offense involving moral turpitude shall be ineligible to assume or continue in any City office, position or employment." Supreme Court found that Albanna was ineligible to assume the office of 1st Ward Councilman in the City of Lackawanna.

Albanna appealed but the Appellate Division sustained the lower court's ruling.

The Appellate Division explained that because Albanna stipulated the facts recited above in the course of the 2006 criminal action and "was convicted of a crime of moral turpitude," Supreme Court properly declared Albanna ineligible to assume the office of Councilman.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_00378.htm

A school board member who acts on the advice of counsel will not be found to have engaged in a willful violation or neglect of duty

A school board member who acts on the advice of counsel will not be found to have engaged in a willful violation or neglect of duty

Application for the removal of certain school officials, Decisions of the Commissioner of Education, Decision No. 17,307

Monique McCray, Doris Dodson and Kelly Valentin [Petitioners] submitted an appeal to the Commissioner of Education seeking for the removal of certain  members of the Board of Education of the Central Islip Union Free School District, the removal of Dr. Craig Carr as Superintendent [collectively Respondents] involving was school constructions project substantially completed by May 2004.

At the result of Central Islip's failure to timely file final cost reports concerning the construction projects to the State Education Department [SED], SED, except for one project, discontinued the apportioned payments and sought to recoup the state aid apportionments in the amount $13,619,929 in "overpayments" over the course of three years by annual deductions from Central Islip's general State aid payments.

Central Islip then initiated an Article 78 in Supreme Court, contending that it was "entitled" to the overpayment claimed by SED. Supreme Court granted Central Islip's request for a temporary restraining order, which resulted in a payment from SED to Central Islip in the amount of approximately $7.5 million during the 2011-2012 school year. Governor Andrew Cuomo, however, had then signed Chapter 57 of the Laws of 2012 excusing "the actions and omissions of any school district which failed to file timely final cost reports for otherwise eligible school construction projects so long as the reports were filed by December 31, 2012.” If the school district filed by this deadline, Chapter 57 required SED to pay apportioned aid to the district in full except for a late filing penalty.[1] 

In March 2014, the Office of the New York State Comptroller [Comptroller] issued a report of examination entitled “Central Islip Union Free School District Financial Management” which covered the period from July 1, 2012 to June 30, 2013. The Comptroller concluded that district officials had “underestimated revenues and overestimated expenditures in the School Board-adopted budgets for fiscal years 2008-09 through 2012-13 ....”  The Comptroller also noted that, after Central Islip learned of the potential $13.6 million liability to SED in February 2010, “the entire amount needed was accumulated in unexpended surplus funds by the end of the 2010-11 fiscal year, due to the operating surplus incurred that year.”  Although district officials had “hoped that funds for this contingent liability could be placed in a reserve and excluded when calculating the statutory limit,” the Comptroller opined that “there is no statutory authority to establish a reserve for this liability.”

Petitioners in this appeal to the Commissioner contended that the Respondents willfully violated the Real Property Tax Law [RPTL] §1318 by retaining funds greater than four percent of the next fiscal year’s budget for the 2010-2011, 2011-2012 and 2012-2013 fiscal years and that during this period although the community was experiencing economic decline and high home foreclosure rates, district officials increased the tax levy, generating operating surpluses in excess of $25 million from 2008-2009 through 2012-2013.

The Petitioners also argued that Respondents had "a responsibility ... to bring information to the community about matters that affect their legal obligation to pay taxes” and “were obligated to be truthful and ethical and not jeopardize the community’s trust.” 

McCray and Dodson were alleged to have “raised questions about the [d]istrict’s practices of deliberately creating excess funds by under estimating revenue and over estimating expenditures” at an April 8, 2013 board meeting, and Respondents “acknowledge[d]” that there were “no internal controls to measure whether budget expenditures are efficient and increases are warranted.”  Petitioners request that Respondents be removed from their respective offices.

The Commissioner first address what she characterized as a "preliminary matter," Respondents claim that she would be "unable to issue an impartial decision in this matter because ... the application concerns an ongoing dispute between SED and respondent board."

The Commissioner, noting that Education Law §306 provides for an application to the Commissioner of Education when a petitioner seeks the removal of a board member or school officer, said that although "recusal may be necessary in an adjudicatory proceeding before the Commissioner under certain circumstances," she found that no such circumstances existed in this case.  In particular, the Commissioner said that she did not find that the lawsuit, which has concluded, "compromises [her] impartiality or otherwise requires [her] recusal in this case.

After addressing a number of procedural issues, the Commissioner addressed the Petitioners' appeal and found that [a]lthough the application must be denied as untimely, it would also be denied on the merits."

The Commissioner explained that RPTL §1318(1) provides that at the conclusion of each fiscal year, a board of education must apply any unexpended surplus funds to reduce its tax levy for the upcoming school year.  Surplus funds are defined as “any operating funds in excess of four percent of the current school year budget, and shall not include funds properly retained under other sections of law.” The Commissioner then observed that it has been "repeatedly held that, at the end of each school year, all unexpended operating funds in excess of the statutorily permitted four percent of the amount of the budget for the upcoming school year must be applied to reduce the tax levy."

As to Petitioners' seeking the removal of a member of the board of education or a school officer, Education Law §306 so permits "when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education." Further, said the Commissioner, to be considered willful, "the board member or officer’s actions must have been intentional and with a wrongful purpose."

Observing that in an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief, the Commissioner decided that while Petitioners in this appeal have alleged and proved violations of the RPTL, which Respondents have in fact admitted, "the actions of which [P]etitioners complain do not rise to the level of a willful violation or neglect of duty under the Education Law."

In the words of the Commissioner, "[P]etitioners have produced no evidence that any [R]espondent acted with a wrongful purpose" nor have Petitioners contested Respondents' contention that "that they took the actions which resulted in the accumulation of unexpended surplus funds during the disputed timeframe after receiving the advice of counsel."

Citing a number of Decisions of the Commissioner of Education, including Application of Goldin, 39 Ed Dept Rep 14, Decision No. 14,158, the Commissioner opined that "It is well-settled that a board member who acts on the advice of counsel will not be found to have engaged in a willful violation or neglect of duty that would justify removal under Education Law §306" and denied the Petitioners' application.

Addressing one final administrative matter, the Commissioner granted the Respondents'  have request for Certificates of Good Faith pursuant to Education Law §3811(1) thereby authorizing the School Board to indemnify them for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his or her powers or performance of duties as a board member or other title listed in §3811(1).  

As it is appropriate to issue such certification unless it is established on the record that the requesting respondent acted in bad faith, the Commissioner concluded that as there has been no finding that any respondent acted in bad faith, she so certified "solely for the purpose of Education Law §3811(1) that ... Philips, Devine, Softy and Carbajal are entitled to receive the requested certificate [and] to the extent such a certificate is necessary, that [R]respondent Carr, who was the superintendent at the time of the events giving rise to this application, is also entitled to receive the requested certificate."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17307

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[1] Following passage of this legislation, Supreme Court dismissed the board’s lawsuit as moot on January 30, 2013, which was affirmed by the Appellate Division on October 30, 2014 (see Bd. of Educ. of Cent. Islip Union Free Sch. Dist. v. Steiner, 121 AD3d 1473).

Imposing sanctions based on frivolous litigation challenging the termination of an individual's employment

Imposing sanctions based on frivolous litigation challenging the termination of an individual's employment

Jiggetts v New York City Human Resources Admin., 2017 NY Slip Op 09236, Appellate Division, First Department

A  per diem employee, Kyle Jiggetts, was terminated from his position with the New York City Department of Homeless Services [DHS] 1994.

Jiggertts challenged his termination and an arbitrator concluded that, as a per diememployee, he could not challenge the termination of his employment under the disciplinary review procedures set forth in the controlling collective bargaining agreement.

Jiggetts, however, "continued to pursue lawsuits long after their lack of any legal basis was made apparent to him" and ultimately Supreme Court granted DHS's motion for sanctions. Jiggetts appealed.

The Appellate Division opined that given Jiggetts history of frivolous litigation, Supreme Court had providently exercised its discretion in imposing sanctions, which consisted of:

1. Ordering Jiggetts to pay $10,000;

2. Enjoining Jiggetts from commencing any further actions or proceedings arising out of his termination of employment from DHS without prior leave of the court.

The Appellate Division further explained that "[t]o the extent Jiggetts' remaining claims of discrimination and retaliation are not barred by res judicataprinciples based on prior federal and state court rulings rejecting his challenges to HRA's termination of his employment in 1994, they are barred by the applicable statutes of limitations, as the instant petition, filed in 2015, was commenced more than three years after petitioner was terminated in 1994."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_09236.htm