Termination by operation of law

The appointing authority summarily terminated two tenured correction officers under color of  Public Officers Law §30(1)(e). Contending that they were denied the required "disciplinary notice and hearing" as a condition precedent to their dismissal, they initiated an action pursuant to CPLR Article 78 seeking a court order directing their reinstatement to their former positions. The Supreme Court denied their petitions, which ruling was unanimously affirmed by the Appellate Division.

Public Officers Law §30.1 addresses the "Creation  of vacancies" and Subdivision e, in pertinent part provides that an individual's public office shall be vacant upon the "(e)His* conviction of a felony, or a crime involving a violation of his oath of office,...."

The Appellate Division explained that both correction officers** were properly terminated from their positions pursuant to Public Officers Law §30(1)(e), as they were each was charged and convicted of official misconduct in violation of Penal Law §195.00 and a conviction of official misconduct involves misconduct in the line of duty and necessarily involves a violation of the individual's oath of office.

As both correction officers were terminated from their respective positions pursuant to Public Officers Law §30(1)(e), they were not entitled to a pre-termination hearing pursuant to Civil Service Law §75(1)(a) or a disciplinary procedure set out in a collective bargaining agreement negotiated pursuant to Article 14 of the Civil Service Law [the Taylor Law].

* §22 of the General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.”

** Law enforcement personnel including correction officers are public officers subject to the provisions of Public Officers Law §30(1)(e) [see Graham v Coughlin, 72 NY2d 1014].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03535.htm

Denying a Freedom of Information Law request for certain unredacted records and reports concerning a correction officer's acts or omissions in the performance of his or her duties

§50-a.1 of the Civil Rights Law concerning the production of the personnel records of police officers, firefighters and correction officers, provides that "[a]ll personnel records used to evaluate performance toward continued employment or promotion under the control of any police agency or department of the state or any political subdivision thereof including authorities or agencies maintaining police forces of individuals defined as police officers in §1.20 of the criminal procedure law and such personnel records under the control of a sheriff's department or a department of correction of individuals employed as correction officers and such personnel records under the control of a paid fire department or force of individuals employed as firefighters or firefighter/paramedics and such personnel records under the control of the department of corrections and community supervision for individuals defined as peace officers pursuant to subdivisions twenty-three and twenty-three-a of §2.10 of the criminal procedure law and such personnel records under the control of a probation department for individuals defined as peace officers pursuant to subdivision twenty-four of §2.10 of the criminal procedure law shall be considered confidential and not subject to inspection or review without the express written consent of such police officer, firefighter, firefighter/paramedic, correction officer or peace officer within the department of corrections and community supervision or probation department except as may be mandated by lawful court order."

In response to a demand for certain records involving the activities and conduct of correction officers, the Appellate Division said that its in camera review of a sampling of the requested documents in unredacted form "reveals that the factual description of events contained in the reports was 'neutral and did not contain any invidious implications capable facially of harassment or degradation of the officer in a courtroom'." To comply with the legislative objective of Civil Rights Law §50-a, explained the court, the custodian of the record must demonstrate a "substantial and realistic potential" for the unredacted reports to be used against the officers in a harassing or abusive manner.

Citing Matter of Patrolmen's Benevolent Assn. of the City of N.Y., Inc. v De Blasio, 169 AD3d at 519, the Appellate Division concluded that the nature and a facility's use of unusual incident reports, use of force reports and misbehavior reports, as well as their lack of potential to be used abusively against correction officers, are such that the documents do not qualify as personnel records within the meaning of Civil Rights Law §50-a. Accordingly such unredacted documents are not exempt from disclosure under Public Officers Law §87(2) and the documents should be provided in "unredacted form."

In response to a demand for certain records involving the activities and conduct of correction officers, the Appellate Division said that its in camera review of a sampling of the requested documents in unredacted form "reveals that the factual description of events contained in the reports was 'neutral and did not contain any invidious implications capable facially of harassment or degradation of the officer in a courtroom'." To comply with the legislative objective of Civil Rights Law §50-a, explained the court, the custodian of the record must demonstrate a "substantial and realistic potential" for the unredacted reports to be used against the officers in a harassing or abusive manner.

Citing Matter of Patrolmen's Benevolent Assn. of the City of N.Y., Inc. v De Blasio, 169 AD3d at 519, the Appellate Division concluded that the nature and a facility's use of unusual incident reports, use of force reports and misbehavior reports, as well as their lack of potential to be used abusively against correction officers, are such that the documents do not qualify as personnel records within the meaning of Civil Rights Law §50-a. Accordingly such unredacted documents are not exempt from disclosure under Public Officers Law §87(2) and the documents should be provided in "unredacted form."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03421.htm

Terminating an employee in the Classified Service of New York State or a political subdivision of New York State during his or her probationary period

Typically employees appointed to positions in the classified service* of the State of New York or a political subdivision of the State are subject to their satisfactory completion a probationary period defined in terms of a "minimum period of probation" and a "maximum period of probation."

New York courts have ruled that if the probationer appointed to a position in the Classified Service has not yet completed his or her minimum period probation he or she may not be summarily terminated from the position but is entitled to a  “notice and a  disciplinary hearing” as though he or she held "tenure in the position" on the rationale that a probationary employee is entitled to a minimum period of service to demonstrate his or her ability to satisfactorily perform the duties of the position.**

On the other hand, a probationary employee serving a position in the Classified Service may be summarily terminated at any time after completing his or her minimum period of probation prior to completing his or her maximum period of probation without notice and hearing*** unless otherwise provided by the terms of a collective bargaining agreement negotiated pursuant to the Taylor Law [Civil Service Law Article 14]. 

A fire district terminated a probationary firefighter [PF] shortly before the expiration of his probationary period. PF challenged his dismissal by filing a petition pursuant to CPLR Article 78 seeking judicial review the fire district's decision to terminate his employment. The Supreme Court denied PF's petition and dismissed the proceeding. PF appealed the Supreme Court's ruling.

Citing Swinton v Safir, 93 NY2d 758, the Appellate Division, sustaining the lower court's decision, explained that judicial review of the dismissal of a probationary employee is limited to whether the dismissal was [1] made in bad faith; [2] for a constitutionally impermissible purpose; or [3] in violation of statutory or decisional law. Accordingly, only if the dismissed probationary employee raises a material issue of fact as to whether the dismissal was made in bad faith, or for an illegal reason, or in violation of law, his or her employment may be terminated without a hearing or a statement of reasons for his or her dismissal from the position.

Further, opined the Appellate Division quoting from Petkewicz v Allers, 137 AD3d at 1045, the probationer has "the burden of raising a material issue as to bad faith or illegal reasons, and conclusory allegations of misconduct or unlawfulness are insufficient to meet this burden."

The opinion notes that PF failed to raise a material issue as to bad faith or any other improper reason for his termination and that the record demonstrates that "the termination had a rational basis and that [PF's] allegations to the contrary were speculative or conclusory."

* See §§40 - 45 of the Civil Service Law

** McKee v Jackson, 152 AD2d 54

*** Gray v Bronx Developmental Center, 65 NY2d 904

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03043.htm

New York State's Military Law provides certain benefits to a public employee "deployed on military service" before completing his or her probationary period

The Appellate Division reversed Supreme Court's denial of the CPLR Article 78 petition filed by a New York City police officer [Petitioner] seeking reinstatement to her position after the New York City Police Department [Department] terminated her employment as a probationary police officer.

Petitioner was appointed as a probationary police officer in July 2012. In February 2014, before her two-year probationary period had been completed, Probationer was placed on "restricted duty," after the Department became aware of facts suggesting she had not disclosed certain aspects of her medical history, diagnoses and treatment on application forms and her term of her probationary period was extended. 

In August 2014, while Petitioner was on "restricted duty" and still serving as a probationary employee, she was deployed on military duty and was placed on military leave by the Department. While Petitioner was on such military leave, the Police Commissioner approved recommendations to terminate Petitioner's employment with the Department. Upon her return from military duty in June 2016, Probationer was informed that "her probationary employment was summarily terminated."

Petitioner contended that the Department could not summarily terminate her employment as she had attained tenure in the position while she was absent on military leave and thus was entitled to "notice and hearing" on disciplinary charges before she could be terminated from her position.

The Appellate Division, citing 55 RCNY 5.2.2[b], agreed with Petitioner, explaining that New York City's personnel rules provide that "[s]ubject to the provisions of the [M]ilitary [L]aw," the computation of a probationary period is based on time the employee is "on the job in a pay status." The court noted that the City's personnel rules also provide that, notwithstanding rule 5.2.2, the probationary period will be extended while a probationer "does not perform the duties of the position."

However, opined the Appellate Division, the rules relied on by the Department are expressly subject to Military Law §243(9), which provides, in pertinent part, "that if a probationary employee is deployed on military duty before the expiration of his or her probationary period", the time he or she is absent on military duty shall be credited as satisfactory service during such probationary period." In addition, said the court, "§243(9) does not distinguish between probationers on restricted or modified duty and those on full duty status at the time of deployment, or give an appointing authority discretion to distinguish between such types of probationers."

The Appellate Division, reversing the Supreme Court's decision "on the law", granted the Article 78 petition and remanded the matter "for further proceedings consistent herewith," indicated that its "decision does not foreclose further action by [the Department]." This statement may be alluding to the possibility of the Department's undertaking action addressing the issue concerning the Petitioner having been placed on "restricted duty" after the Department learned that she may not have disclosed certain facts on her employment  application forms.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03277.htm

Determining eligibility for workers' compensation benefits when an employee is injured while "off duty"

A New York City Transit Authority [Authority] employee [Claimant] was assigned to work the 12:00 a.m. - 8:00 a.m. shift. Claimant "clocked out" ten minutes early "having completed his shift" and took an Authority train to return home.

As Claimant left the train, he was assaulted by another passenger, suffering multiple injuries and applied for workers' compensation benefits. The Workers' Compensation Law Judge denied Claimant's application for benefits, ruling that Claimant's injuries "did not arise out of and in the course of his employment." Upon review, the Workers' Compensation Board affirmed the Law Judge's ruling and Claimant appealed the Board's decision.

The Appellate Division affirmed that Board's determination, explaining that an injury is only compensable under the Workers' Compensation Law "if it arose out of and in the course of a worker's employment and, in general, injuries sustained in the course of travel to and from the place of employment do not come within the statute."*

Further, opined the Appellate Division, "[a]lthough there are recognized exceptions to this 'going and coming' rule, none applies here and we find that substantial evidence supports the Board's determination that Claimant's injuries sustained while traveling home from work are not compensable" as at the time of the assault, Claimant was not at his assigned train station, and "having clocked out of work," he was not on duty or performing any of the duties of his employment, nor was Claimant on an errand for the employer and there was no evidence that Claimant was required to use the trains to commute to work or that the employer benefited from the route that he used to travel home.

One such exception alluded to in the decision is demonstrate in Neacosia v New York Power Authority, [NYPA] 85 NY2d 47. 

In Neacosia, the Court of Appeals decided that Neacosia, a NYPA security officer, who was injured in a car accident after he stopped on his way home to leave his work uniform at a cleaning shop was acting within the scope of his employment and thus was eligible for workers' compensation benefits.

NYPA "provided its security officers with uniforms and required that they keep the uniforms clean and presentable." To assist in this, NYPA had made arrangements with a number of cleaning establishments in the area to clean the uniforms and bill the agency for their services.**

After completing his shift Neacosia stopped to deliver his uniforms to one of the cleaners recommended by the Authority on his way home. After leaving his uniform at the cleaner's, Neacosia headed home along his usual route and was  involved in an automobile accident, sustaining severe injuries.

Claiming that his injuries arose out of and in the course of his employment, Neacosia filed for workers' compensation benefits. NYPA controverted the claim but ultimately  the Court of Appeals affirmed the Workers’ Compensation Board's determination that Neacosia suffered an injury that arose “out of and in the course of [his] employment" because the security officer used one of the facilities with which NYPA had made arrangements to do the cleaning and bill NYPA for the cleaning services it provided to the security officer.

* The Appellate Division cited Lemon v New York City Tr. Auth., 72 NY2d 324, in which the Court of Appeals ruled that "Injuries incurred while commuting to work are generally not covered because 'the risks inherent in traveling to and from work relate to the employment only in the most marginal sense.'"

** In the alternative, security personnel could arrange for the uniform's cleaning to be done by a cleaner not on NYPA's list of cleaners and submit his or her bill for the cost of the cleaning to NYPA for reimbursement. However, a security officer electing to avail himself or herself of this alternative option may not come within the ambit of the rationale applied by the Court of Appeals in Neacosia.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03122.htm

Guidelines followed by the judiciary in adjudicating motions to confirm or deny arbitration awards

In a proceeding pursuant to CPLR Article 75 brought by Petitioner [P] to confirm two arbitration awards, the Respondent [R] cross-petitioned to vacate the awards. Supreme Court confirmed both arbitration awards and denied R's cross-petitions. R appealed the Supreme Court's decisions.

The Appellate Division affirmed Supreme Court's ruling, explaining:

1. Judicial review of arbitration awards is extremely limited and unless the court determines that the arbitration award "violates a strong public policy, is totally irrational, or exceeds a specifically enumerated limitation on the arbitrator's powers," it may not be vacated;

2. The party seeking to vacate an arbitration award bears a "heavy burden" of proving by "clear and convincing evidence" that impropriety by the arbitrator prejudiced that party's rights or impaired the integrity of the arbitration process;

3. Courts are bound by an arbitrator's factual findings, interpretation of the contract and judgment concerning remedies;

4.  A court cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes the court's interpretation would be the better one; and

5. Even in circumstances where an arbitrator makes errors of law or fact, courts will not assume the role of overseers to conform the arbitration award to the court's sense of justice.

Finding that R did not contend that the arbitration awards violated public policy or exceeded a specifically enumerated limitation on the arbitrator's powers, nor that the arbitration awards were irrational, the Appellate Division said it agree with the Supreme Court's [1] determination granting P's petition to confirm the awards; [2] the lower court's denying D's cross-petition; and [3] its confirming both of the arbitration awards.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03053.htm

Revealing confidential records resulting a youthful offender adjudication distinguished from answering questions about the facts underlying the incident.

The plaintiff, [P], allegedly was injured as a result of a physical altercation with D, the defendant, which had occurred in the hallway of the high school that they both attended at that time.

When, in the course of discovery during the litigation that followed in P's effort to recover damages for personal injuries she had allegedly suffered as the result of certain actions by D, D's attorney refused to produce D, who had been adjudicated a youthful offender, contending that, pursuant to the Criminal Procedure Law §720.35(2) [CPL], the information sought by P was protected by the confidentiality provisions provided by law with respect to adjudications involving youthful offenders.

P then asked Supreme Court to grant her motion to compel D to appear for, and answer questions at, the deposition. The court granted P's motion, denying D's legal guardian's motion for a protective order precluding the deposition of D. D's legal guardian appealed the Supreme Court's decision.

The Appellate Division affirmed the Supreme Court's ruling, explaining that the relevant provisions of law concerning youthful offender status set out in the CPL were the result of  "a legislative desire not to stigmatize youths between the ages of 16 and 19 with criminal records triggered by hasty or thoughtless acts which, although crimes, may not have been the serious deeds of hardened criminals."

The primary advantage of youthful offender treatment, said the court, is "the avoidance of the stigma and practical consequences which accompany a criminal conviction." Further, noted the Appellate Division, CPL §720.35[1] provides that "youthful offender adjudication is not a judgment of conviction for a crime or any other offense" and consistent with "the statutory goal that eligible youths not be stigmatized by a youthful offender adjudication," provides that records relating to the prosecution shall be sealed.

However, opined the Appellate Division, the statutory grant of confidentiality afforded to such official records and the information contained therein "does not extend to the facts underlying the incident which gave rise to the youthful offender adjudication." Thus an eligible youth may not refuse, on grounds of confidentiality, to answer questions about the facts underlying the subject incident, "even though those facts also form the basis of his or her youthful offender adjudication."

The Appellate Division concluded that although D cannot be compelled to divulge the contents of the confidential records underlying her youthful offender adjudication, D can be compelled to answer questions about the facts underlying the incident.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03019.htm

May 2019 AELE case notes and publications alert

*** Law Enforcement Liability Reporter ***

This issue has cases on assault and battery: chokeholds, assault and battery: handcuffs, electronic control weapons: stun mode, false arrest/imprisonment: no warrant, false arrest/imprisonment: warrant, firearms related: intentional use, First Amendment, forfeiture proceedings, pursuits: law enforcement, and terrorism and national security issues. View at:
http://www.aele.org/law/2019all05/LR2019MAY.html

*** Fire, Police & Corrections Personnel Reporter ***

This issue has cases on drug screening, First Amendment, handicap/abilities discrimination: accommodation in general, national origin discrimination, pensions, political activity, retaliatory personnel actions, security clearances, and veterans and other preference laws. View at:
http://www.aele.org/law/2019all05/FP2019MAY.html

A probationary educator may be summarily terminated during his or her probationary period provided it is not unlawful or made in bad faith

When the New York City Department of Education [DOE] terminated an individual [Educator] serving in a civil service position in the Unclassified Service* during his probationary period, Educator file a petition pursuant to CPLR Article 78 seeking a court order annulling his dismissal from his position and directing DOE to reinstate him to his former position.

Supreme Court dismissed Educator's petition and the Appellate Division unanimously affirmed the lower court's ruling, explaining that, as the Court of Appeals held in Duncan v Kelly, 9 NY^3d 1024, that Duncan, a probationary police officer, could be terminated without "notice and hearing" for any reason or no reason at all, as long as the dismissal was not unlawful or made in bad faith.**

Educator, said the Appellate Division, "alleges no facts to show that his termination was for an illegal or an improper reason" and his characterization of his termination as having been made in bad faith was "purely speculative." In contrast, the court observed that the record indicated that Educator was terminated for misconduct and for violating certain relevant regulations.  

Addressing Educator's contention that DOE's Office of Special Investigations "failed to interview one particular student" and failed to provide him with certain "investigatory materials," the Appellate Division opined that those "alleged irregularities in the process ... without more, do not constitute bad faith or a deprivation of a substantial right."

* See §35 of the Civil Service Law. §2573 of the Education Law, addressing the appointment of assistant, district or other superintendents, teachers and certain other employees, provides, in pertinent part, that "[t]he service of a person appointed to any of such positions may be discontinued at any time during [his or her] probationary period, on the recommendation of the superintendent of schools, by a majority vote of the board of education."

** "Police officer" is a position in the Classified Service of the Civil Service. Case law indicates that a probationary employee serving a position in the Classified Service may be summarily terminated at any time after completing his or her minimum period of probation prior to completing his or her maximum period of probation without notice and hearing unless otherwise provided by the terms of a collective bargaining agreement negotiated pursuant to the Taylor Law [Civil Service Law Article 14]. In contrast, if the probationer has not yet completed his or her minimum period probation, he or she is entitled to “notice and hearing” as a condition precedent to his or her termination on the theory that the individual is entitled to a minimum period of service to demonstrate his or her ability to satisfactorily perform the duties of the position. 

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2019/2019_03141.htm

The anatomy of a civil rights action involving allegations of failure to accommodate a disability, unlawful discrimination, a hostile work environment, and retaliation

In this civil rights action a former employee [Plaintiff] sued her former employer [Defendant] alleging the Defendant failed to provide a workplace accommodate in consideration of her disability, subjected her to acts of unlawful discrimination, subjected her to a hostile work environment, and subjected her to retaliation. The federal district court dismissed her several claims.

The Second Circuit Court of Appeals reviewed her appeal of the federal district court’s dismissal of her complaint de novo, "construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff’s favor” but, citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, noted that "[a]lthough a court must accept as true all the factual allegations in the complaint, that requirement is “inapplicable to legal conclusions.” The Circuit Court then considered the major components of Plaintiff's complaint and concluded as follows:

Failure to accommodate a disabled individual:  A plaintiff makes a prima facie case of disability discrimination arising from an alleged "failure to accommodate" by showing (1) "[p]laintiff is a person with a disability under the meaning of the ADA; (2) an employer covered by the statute had notice of [her] disability; (3) with reasonable accommodation, plaintiff could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations.” The Circuit Court concluded that Plaintiff failed to plausibly allege that she requested reasonable accommodations for her disability.

Although the Americans with Disabilities Act [ADA] provides that reassignment to a vacant position is a reasonable accommodation, it does not require employers to create entirely new positions and it is the employee's burden to show that a reasonable accommodation exists, including the existence of a vacant position for which he or she is qualified.

In any event, the Circuit Court determined that Plaintiff had not alleged that there was an open position when she asked to transfer from her then position and to the extent that Plaintiff asserted that she should have been promoted as an accommodation, "that was not a reasonable accommodation."

Addressing Plaintiff's claim that Defendant "could have provided her with an ergonomic chair and other equipment, the Circuit Court said that Plaintiff had not alleged that she had requested these accommodations and declined to consider that aspect of her claims.

Adverse employment actions: Plaintiff's claims arising out of alleged adverse employment actions were found to have occurred more than three hundred days before Plaintiff filed her administrative charges with the New York State Division of Human Rights and thus they were found to have been "statutorily time-barred."

Disparate Treatment: Plaintiff alleged that she had been denied promotion because of her disability. The Circuit Court said the Plaintiff [1] sought to be promoted to positions for which she did not possess a minimum qualification as she did not have the requisite bachelor’s degree nor did she allege any facts showing that she was qualified for appointment to any position that permitted the applicant to satisfy the job eligibility requirements through a combination of experience and education. As to these and similar allegations involving Plaintiff's alleged disparate treatment by Defendant, the Circuit Court explained that "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to [defeat] a motion to dismiss.”*

Hostile Work Environment: To establish a hostile work environment claim, the Circuit Court said Plaintiff must show that “the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of . . . her work environment” and that any harassment she experienced was based on her being a member of a "protected class." In contrast, the Circuit Court noted that "[r]un-of-the-mill workplace conflicts, troubling though they may be, do not rise to the level of an objectively hostile workplace" and concluded that Plaintiff failed allege facts sufficient to establish a viable hostile work environment claim.

Retaliation: Citing Treglia v Town of Manlius, 313 F.3d 713, the Circuit Court observed that ADAretaliation claims are analyzed pursuant to the framework  established for Title VII cases.** Further, to establish an adverse employment action in the context of retaliation, the challenged action or actions must be materially adverse in contrast to merely being essentially "trivial harms,” “slights,” and, or, “annoyances,” which do not constitute adverse acts. The Circuit Court opined that none of incidents described by Plaintiff attained the level of an adverse action but, at most, consisted of interpersonal slights.

The Circuit Court then concluded its analysis of the complaints advanced by Plaintiff's by stating that "for the foregoing reasons" the judgment of the district court is affirmed.

* Observing that Plaintiff had plausibly alleged that certain supervisors were rude to her, the Circuit Court opined that "rudeness is not an adverse employment action and [Plaintiff] did not allege that she was ever formally disciplined by [by supervisors] despite their criticism."

** This framework requires “(1) the employee's participation in a protected activity; (2) that [the employer] knew of [the employee's] participation in that protected activity; (3) that [the employee] suffered an adverse employment action; and (4) that there exists a causal relationship between the protected activity and the adverse employment action.” 

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/8c0dd86f-639d-45cc-8e69-6e4c366419a3/5/doc/18-1308_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/8c0dd86f-639d-45cc-8e69-6e4c366419a3/5/hilite/

Determining if a "non-governmental entity" is an "agency" within the meaning of the New York State's Freedom of Information Law and thus subject to its provisions

As the Court of Appeals opined in Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, New York State's Freedom of Information Law [FOIL] "expresses this State's strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies."* For the purposes of FOIL, the term agency includes "any ... governmental entity performing a governmental ... function for the state or any one or more municipalities thereof." 

On occasion, however, a nongovernmental organization may be found to fall within the ambit of the term "agency" as described in FOIL and thus be deemed to be subject to its mandates with respect to the public's access to its records and documents.

Among the attributes of an entity that may be considered by courts in determining whether a nongovernmental organization is "an agency" for the purposes of FOIL are the following:

1. Is the organization required to disclose its annual budget?

2. Are the organization's offices in a public building?

3. Is the organization subject to a governmental entity's authority with respect to the hiring or firing personnel?

4. Does the organization have a board comprised primarily of governmental officials?

5. Was the organization created exclusively by a governmental entity?

6. Does the organization describes itself as an agent of a governmental entity?

When an emergency medical technician [Plaintiff] submitted a FOIL requests for certain records related to the rejection of Petitioner's application to be reinstated as a member of the Cortlandt Community Volunteer Ambulance Corps, Inc. [Ambulance], Ambulance "declined the requests on the ground that it was not an 'agency' required to comply with FOIL as defined in Public Officers Law §86(3)." In response, Plaintiff filed a petition pursuant to CPLR Article 78 seeking a court order directing Ambulance to produce the requested records, which petition Supreme Court granted.

Ambulance appealed and the Appellate Division vacated the Supreme Court's order and "on the law and the facts," denied Plaintiff's petition "in its entirety" and dismissed the proceeding. The Appellate Division had determined that Ambulance "does not fall within the definition of an agency" for the purposes of FOIL and thus was not subject to the requirements of FOIL.

Ambulance, said the court is a "not-for-profit corporation" that has contracted with the Cortlandt Ambulance District No. 1 [District], a subsidiary of the Town of Cortland, to provide emergency medical services to persons located within the District for a fixed annual sum.

The contract between the parties provides that Ambulance is to comply with "all orders, rules, regulations and demands made by the Town" in order to provide "adequate ambulance protection to residents within the District" and this constituted the only involvement of the Town and District with respect to operation of Ambulance. Neither the Town nor the District had formed and incorporated Ambulance and neither has the authority to select or appoint Ambulance's directors, officers, or members of Ambulance. For its part, Ambulance is not required to submit its budget to the Town or District for review nor does either the Town or the District have authority to approve Ambulance's budget or review or audit Ambulance's financial books and records.

The Appellate Division also noted that Ambulance receives the majority of its funding from sources other than the payments it receives from the District pursuant to the contract and purchases all of its equipment, supplies, and services from its own assets. 

Further, Ambulance receives no funding from the Town or District apart from the agreed upon contract payments and Ambulance is solely responsible for the maintenance and expenses related to its buildings, has the authority to hire staff, who are solely its employees, and it obtains its own workers' compensation policy for coverage of its employees and members. None of Ambulance's personnel are covered by the workers' compensation policy maintained by the District or the Town for their respective employees and volunteers and neither the District nor the Town has authority to review or approve contracts entered into by Ambulance for professional or other services it deems necessary for its operation.

Considering the defacto relationship of the parties, the Appellate Division concluded that "Under these circumstances, it cannot be said that Volunteer Ambulance is a 'governmental entity performing a governmental . . . function' so as to render it an agency subject to the mandates of FOIL."

In contrast, in Ryan v Mastic Volunteer Ambulance Co., 212 AD2d 716, the Appellate Division determined that Mastic Volunteer Ambulance Company [Mastic] was an "agency" within the meaning of FOIL.

The Ryan court found that Mastic performed a governmental function and it performs that function solely for the Mastic Ambulance District, a municipal entity and a municipal subdivision of the Town of Brookhaven. Further, Mastic submitted a budget to, and receives all of its funding from, the Town and Mastic's allocation of its funds is "scrutinized by the Town."

Thus, concluded the court, Mastic "clearly falls within the definition of an agency" as defined in FOIL and is subject to its provisions."

* The basic concept underlying FOIL is that all government documents and records, other than those having access to them specifically limited or prohibited by statute, are to be made available to the public upon request. The custodian of the records or documents requested may elect, but is not required, to withhold those items that are otherwise within the ambit of the several exemptions permitted by FOIL otherwise consistent with law. As to the release of public records specifically limited by statute, examples include Education Law §1127 [Confidentiality of records] and §33.13 of the Mental Hygiene Law [Clinical records, confidentiality]. 

The Cortlandt Community Volunteer Ambulance decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_02881.htm

A police officer's personnel records are exempt from disclosure pursuant to the Freedom of Information Law during and after he or she leaves public service

Public Officers Law §87[2][a]) provides that "[a]ll personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency . . . [,] shall be considered confidential and not subject to inspection or review without the express written consent of such police officer . . . except as may be mandated by lawful court order."

The custodian of the relevent records denied Plaintiff's New York State's Freedom of Information Law [FOIL request for documents concerning complaints filed concerning a retired New York City police officer [Detective], together with reports of the outcome of any investigations into such complaints. Plaintiff had sought such records on the theory that such records were not, or were no longer, "personnel records used to evaluate performance toward continued employment or promotion" of police officers, firefighters and correction officers.*

Arguing that Civil Rights Law §50-a(1) was inapplicable because [1] the police officer was now retired and [2] the requested records are not "personnel records" because the custodian of the records was employed by an agency independent from the former Detective's employer, Plaintiff challenged the custodian's decision by initiating a CPLR Article 78 action seeking a court order to compel production of any such records. Supreme Court, in effect, denied the petition and dismissed the proceeding and Plaintiff appealed the Supreme Court's ruling.

The Appellate Division disagreed with Plaintiff's contention that Civil Rights Law §50-a(1) does not apply to the records demanded held by the custodian, explaining:

1. An agency "may deny access" to records that "are specifically exempted from disclosure by state or federal statute."

2. Civil Rights Law §50-a(1) provides that "[a]ll personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency . . . [,] shall be considered confidential and not subject to inspection or review without the express written consent of such police officer . . . except as may be mandated by lawful court order."

3. In Matter of Prisoners' Legal Services of New York v New York State Dept. of Correctional Servs., 73 NY2d 26, the Court of Appeals held "whether a document qualifies as a personnel record under Civil Rights Law §50-a(1) depends upon its nature and its use in evaluating an officer's performance — not its physical location or its particular custodian."

The Appellate Division then observed that records of civilian complaints, "regardless of where they are kept," could be used to harass or embarrass police officers, which is exactly what Civil Rights Law §50-a was intended to prevent and the Court of Appeals has recently held that disciplinary records arising from civilian complaints against police officers are the very sort of record presenting a potential for abusive exploitation and intended to be kept confidential under Civil Rights Law §50-a.**

Focusing on the application of these provisions to "former police officers," the court said it agreed with ruling by the Appellate Division, Third Department, in Matter of Columbia-Greene Beauty Sch., Inc. v City of Albany, 121 AD3d 1369 that "a police officer's personnel records continue to be exempt from disclosure after he or she departs from public service."

Rejecting Plaintiff's contention that the potential for personnel records to be used to embarrass or harass police officers during litigation ceases to exist after their retirement, the Appellate Division opined that "[a] retired police officer might 'still [be] involved in an open or pending case' and ... in that context, the requested documents have the potential to be used to degrade, harass, embarrass or impeach his [or her] integrity." Indeed, observed the court, Detective "has been called to testify numerous times since his retirement."

Holding that the custodian of the records met its burden of showing "a substantial and realistic potential for the abusive use of the requested material against [Detective]," the Appellate Division sustained the lower court's ruling denying access to the records demanded by Plaintiff.

* Civil Rights Law §50-a.1.

** See Matter of New York Civ. Liberties Union v New York City Police Dept., 32 NY3d 556

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_02875.htm