Effective date of permanent appointment to a position in the classified service

In an appeal challenging the termination of an employee before the completion of his probationary period, the Appellate Division  noted  that the appointing authority had determined that at the time of the employee's termination there were 25 days remaining in his probationary period and that because he had not yet been "permanently appointed to the position, he was not entitled to a pretermination hearing under Civil Service Law §75 or the applicable collective bargaining agreement."

It would have been more accurate had the appointing authority indicated that there were 25 days remaining in the employee's probationary period and that although he had completed his minimum period of probation, he had not yet attained tenure in the position and thus the employee, although appointed to the position as a permanent employee, was not entitled to a Civil Service Law §75 pretermination hearing or an equivalent disciplinary procedure set out in the controlling collective bargaining agreement.

As a general rule, an individual appointed to a position on a permanent basis has such status on the effective date of the "permanent appointment" but does not attain tenure in the position until:

[1] he satisfactorily completes his maximum period of probation; or

[2] by estoppel, acquisition, default, or otherwise by operation of law; or

[3] as the result of the appointing authority's lawfully truncating the individual's maximum period of probation.

In addition, tenure may be acquired in consideration of certain military service performed during a probationary period or by other lawful process.

York v McGuire, 63 NY2d 760, sets out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.”

This limitation on summarily dismissing a probationary employee during the minimum probationary period is to provide the individual a minimum period of time to demonstrate his ability to satisfactorily perform the duties of the position. In contrast, should the appointing authority elect to terminate a probationary employee before he has completed the required minimum period of probation, the individual is entitled to administrative due process, i.e., "notice and hearing," otherwise to be accorded a "tenured employee."

Further, the distinction between a date of "permanent appointment" in the position in contrast to the date on which an appointee "attains tenure" in the position is illustrated in other provisions of the Civil Service Law such as §80.1, Layoff, where, in pertinent part, it provides that ... incumbents holding the same or similar positions shall be made in the inverse order of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction in which such abolition or reduction of positions occurs".

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05744.htm

Guidelines followed controlling the judicial review of an arbitrator's ruling

A labor union [Union] representing employees of a public library [Union] filed a grievance, alleging that the Board of Trustees of the library [Board] violated an article of the parties' collective bargaining agreement [CBA] by failing to retroactively correct a salary inequality between the library employees and certain employees of the city. The CBA article in question, refer to as the "pay parity provision," required the Board to "actively pursue" funding "to maintain the historic link between the salaries of the library employees and the relevant employees of the city represented by the Union and such funding was to be applied retroactively if necessary "to correct an inequality."

The grievance procedure set out in the CBA did not resolve the dispute and the parties submitted to an arbitrator to determine if the Board violated the pay parity provision of the CBA, as well as the question of, if a violation was found, what was the appropriate remedy. After a hearing, the arbitrator determined that the Board had violated the provision of the CBA relied on by the Union, and that the Library employees were therefore entitled to a retroactive salary increase. The arbitrator then directed that the retroactive salary increase would be conditioned upon excision of the pay parity provision from the CBA going forward.

The Board initiated a CPLR Article 75 to vacate the portion of the arbitration award which called for excision of the pay parity provision from the CBA. Supreme Court granted the petition and remitted the matter to a different arbitrator for a new hearing and determination of the manner and timing of the "parity payments." The Board then appealed the Supreme Court's ruling.

The Appellate Division, affirming the lower court's ruling, explained that "[J]udicial review of arbitration awards is extremely limited", citing Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, and courts may only vacate an arbitrator's award on the grounds specified in CPLR §7511(b). As the Board had advanced as its ground for vacatur under that statute "an excess of power," the court further explained that an arbitrator's award may only be vacated where it "violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power," citing Matter of New York City Tr. Auth. v Transport Workers' Union of Am., Local 100, AFL-CIO, 6 NY3d 332.

Supreme Court had concluded:

1. The Union's interpretation of the pay parity provision was correct;

2. The CBA provision had been violated;

3. A retroactive salary increase for employees in the Union's collective bargaining unit was warranted; but

4. The arbitrator exceeded his power by essentially rewriting the parties' contract by eliminating the "pay parity provision going forward."

As the Appellate Division agreed with the lower court's findings and its determination vacating the portion of the arbitration award that conditioned relief upon excision of the pay parity provision from the CBA and remitting the matter to a different arbitrator for a new hearing and determination on limited issues, it sustained the lower court's rulings.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_09262.htm

Applying the "relations back" doctrine in an Article 78 action to cure a respondent's claim that the petition was untimely filed

The petitioners in this CPLR Article 78 action relied on the "relations back" doctrine for the purposes the court having assume jurisdiction in the matter. The Appellate Division explained reliance on the relations back doctrine requires that the Article 78 petitioner establish:

1. "that the claims arose out of the same occurrence;

2. "that the later-added respondent[s] [were] united in interest with a previously named respondent;, and

3. "that the later-added respondent[s] knew or should have known that, but for a mistake by petitioner as to the later-added respondent[s'] identity, the proceeding would have also been brought against [them]."

In this instance the issued on which the parties focused was the third prong of this test.

The genesis of the Article 78 action was a collective bargaining representative [Union] filing two improper employer practice charges against the Employer with the Public Employment Relations Board [PERB]. A PERB Administrative Law Judge [ALJ], following a hearing, issued a decision finding that the Employer guilty of one charge but dismissed the other charge. 

The Employer filed exceptions to the ALJ's ruling and, after an administrative appeal, PERB reversed the ALJ's determination. The Union then commenced a CPLR Article 78 solely against PERB seeking to annul its determination. Subsequently, however, the Union filed an amended Article 78 petition adding the Employer as respondents as well as PERB. The Employer contended that the amended petition was untimely, whereupon the Union argued that its petition was timely, relying on the relation back doctrine. PERB submitted a reply arguing that if Supreme Court agreed with the Employer's untimeliness objection, the amended petition should be dismissed against it due to the Union's failure to join necessary parties. 

Supreme Court dismissed the amended petition insofar as asserted against the Employer, finding that it was untimely filed and transferred the remaining portion to the Appellate Division in accordance with CPLR §7804[g]).

The Appellate Division observed "that the record fails to disclose that the failure to name the [Employer as] respondents in the original petition was due to a mistake as to their identity. The explanation provided by [the Union] was that it did not believe that the [Employer] were necessary parties to the proceeding." Citing Windy Ridge Farm v Assessor of Town of Shandaken, 45 AD3d 1099, affd 11 NY3d 725,the Appellate Division explained that such a mistake is a mistake of law not contemplated by the relation back doctrine."

In the words of the court, "[g]iven that [the Union] was aware of the [Employer's] existence and 'failed to appreciate that [they] were legally required to be named in proceedings of this type', [the Union's] reliance on the relation back doctrine is unavailing."

As the Employer was necessary parties to this proceeding and it demonstrated that the amended petition was not timely commenced against it, the Appellate Division ruled that the amended petition must also be dismissed insofar as asserted against PERB in view of the timeline involved in perfecting the Union's underlying Article 78 action. The Appellate Division then dismissed the Union's amended petition.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00199.htm

Courthouse Sanctuary for litigants

On December 19, 2019, a New York federal district court judge denied the U.S. government's motion to dismiss a lawsuit challenging the constitutionality of the U.S. Department of Homeland Security's Office of Immigration and Customs Enforcement [ICE] attempts to effect arrests in court houses located in New York State.

U.S. District Judge Jed Rakoff declined to dismiss a lawsuit challenging the constitutionality of ICE's efforts to effect such arrests. Judge Rakoff rejected the government’s arguments that [1] implied the arrests were “none of this Court’s business" and [2] that even if it were within the jurisdiction of the court, "the common law privilege against courthouse arrests doesn’t apply to ICE." Judge Rakoff's decision is posted on the Internet at: https://www.sdnyblog.com/files/2019/12/19-Civ.-8876-2019.12.19-Gonzalez-v.-ICE.pdf

Below is a portion of New York State Supreme Court Judge Hackeling's ruling that, in pertinent part, addresses the doctrine. Judge Hackeling explained:

"Despite antagonistic dicta to the contrary, most modern era precedent dealing with the issue of "Courthouse Sanctuary" from service of process has held that New York State residents receive no such immunity protections. (Baumgartner v Baumgartner, 273 App Div 411 [1st Dept 1948]; Department of Hous. Preserv. {**3 Misc 3d at 343}& Dev. of City of N.Y. v Koenigsberg, 133 Misc 2d 893 [Civ Ct, NY County 1986]; Ford Motor Credit Co. v Bobo, 1 Misc 3d 901[A], 2003 NY Slip Op 51464[U] [Nassau Dist Ct, Miller, J.].) These cases hold that the courthouse sanctuary is only available to foreign state residents who come into New York's courts to contest jurisdiction. This doctrine has been slightly expanded to include New York residents who enter the jurisdiction of a New York court of limited territorial jurisdiction to contest jurisdiction. (See Palazzo v Conforti, 50 NYS2d 706 [Civ Ct, NY County 1944]; Singer v Reising, 154 Misc 239 [Mun Ct, Queens County 1935].)

"The Baumgartner Appellate Division panel (at 413) also acknowledges a limited "Courthouse Sanctuary" rule for New York residents if such service would "constitute a disturbance directly tending to interrupt the proceedings of the court or to impair the respect due to its authority." This rule by itself would not be applicable to the instant case as service of process was effected in the courtroom but outside the court's presence and in between calendar calls.

"State Residency Immunity Distinction?

"The English common law made no New York state residency distinction. The doctrine of immunity from arrest of a litigant attending a trial of an action to which he is a party found early recognition and dates back to the Year Book of 13 Henry IV, I, B (Sampson v Graves, 208 App Div 522 [1st Dept 1924]). This is for the obvious reason that England had no sovereign states. The privilege is not a creature of statute, but was created and deemed necessary for the due administration of justice. (See Matthews v Tufts, 87 NY 568, 570 [1882], citing Van Lieuw v Johnson, Ct App, Mar. 1871 [unreported].)*

The logical question now arises, exactly when did New York's appellate courts recognize a residency distinction for application of the "Courthouse Sanctuary"? The answer is that the Court of Appeals never established such a rule. In contra point of fact, the Court of Appeals has opined that "[i]t is the policy of the law to protect suitors and witnesses from arrests upon civil process while coming to and attending the court and while returning home. Upon principle as well as upon authority their immunity from the service of process for the commencement of civil actions against them is absolute eundo, morando et redeundo"* (Person v Grier, 66 NY 124 [1876]).

"In this unanimous opinion, the Court of Appeals expressly addressed the New York State resident immunity distinction and established in its dicta (at 126) that "whether any distinction should or does in fact exist, is at least doubtful. This immunity is one of the necessities of the administration of justice, and courts would often be embarrassed if suitors or witnesses, while attending court, could be molested with process." It is noted that Person involved a foreign state resident. In establishing the sanctuary doctrine, the Court stated that (at 125) "this rule is especially applicable in all its force to suitors and witnesses from foreign States . . . ." By direct implication, the Court of Appeals is also applying the protective rule to New York residents.

"The basis of the "Courthouse Sanctuary" rule is that parties should be allowed to contest jurisdiction without submitting to it. "Allowing Re-service . . . makes a mockery of the traverse hearing and essentially allows the plaintiff to use a defective default judgment as a weapon to compel the defendant to submit to service of process." (Ford Motor Credit Co. v Bobo, supra at *2.) The location of an individual's residence does little to legitimize such a mockery. Absent the compulsion of clear controlling precedent, this court will not condone such a situation."

A number of immigration related LawBlogs are posted on the Internet at:
https://blawgsearch.justia.com/blogs/categories/immigration-law

* As memorialized by the Latin phrase eundo, morando, et redeundo  [Latin]  [Going, remaining, and returning], a phrase was used to describe a person (for example, a witness or legislator) who is privileged from arrest while traveling to the place where assigned duties are to be performed, while remaining there, and while returning. 

Judge Hackeling decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2004/2004_24045.htm

The CyberCemetery

The University of North Texas Libraries and the U.S. Government Printing Office, as part of the Federal Depository Library Program, created a partnership to provide permanent public access to the Internet sites and publications of defunct U.S. government agencies and commissions. 

Named the "CyberCemetery" by early users of the site, information about the collection is posted on the Internet at: https://library.unt.edu/digital-projects-unit/web-archiving/

Click on https://digital.library.unt.edu/tour/ to take a digital tour of the Library and explore many of the features and capabilities of the Digital Library including the opportunity to navigate through each set of examples by clicking on the text links or the sides of the images. 

The URL set out below links the reader to the most recent additions to the Library's collection: https://digital.library.unt.edu/explore/collections/GDCC/#latest

First Amendment protections do not extend to agency fee payors in a collective bargaining unit established pursuant to the Taylor Law

The New York State Thruway Authority [Authority] initiated a layoff involving certain thruway employees, including individuals that were "agency fee payors" as permitted by Article 14 of the Civil Service Law, typically referred to as the Taylor Law.  Danny Donohue, as President of the Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, and others [Plaintiffs] filed suit against the Authority alleging that the termination of union-represented employees violated the employees' First Amendment right of association. 

In the course of the litigation the Federal District Court, Southern District of New York had certified the following question to the United States Circuit Court of Appeals, Second Circuit, citing its decision in State Employees Bargaining Agent Coalition v. Rowland:*

Are 'union-represented individuals during the bargaining process' — consisting of both union members and agency fee shop payors [AFPs]** — a protected class, such that employment decisions based on employees' union representation during collective bargaining are subject to strict scrutiny?

The Circuit Court of Appeals, considering its decision in Rowland in which it ruled that union activity is protected by the First Amendment right to freedom of association and that heightened scrutiny applies to employment decisions that target an employee “based on union membership,” held that Rowland did not extend to AFPs represented by an employee organization for the purposes of the Taylor Law.

The court found that First Amendment protections applied to union members but did not extend to AFPs based on union representation alone, explaining "AFPs who affirmatively disassociated with a union by objecting to paying for a union's political and ideological projects but who continued to be represented by the union during collective bargaining could not claim that an adverse employment action interfered with their right to associate with the union. In extending Rowland to all AFPs purely because they were represented by a union in collective bargaining, the District Court went too far."

Accordingly, the Circuit Court vacate and remand the district court’s order as it applied to AFPs but affirm the District Court’s order as it applied to union members.

* See 718 F.3d 126.

**  In accordance with the Supreme Court's decision in Janus v. American Federation of State, County, and Municipal Employees Council 31, 138 S. Ct. 2448  a union may no longer collect any fee from an AFP absent the AFP's affirmative consent.

The decision is posted on the Internet at:
https://law.justia.com/cases/federal/appellate-courts/ca2/17-2832/17-2832-2019-11-18.html

Publication of its investigation report by the New York City Office of Special Commissioner of Investigations on the Internet challenged by a party named in the report

An investigation report prepared by the New York City Office of Special Commissioner of Investigations [SCI] substantiated allegations that a contractor [Plaintiff] had engaged in "theft of services" and recommended that he be deemed ineligible to work as a contractor for New York City Department of Education [DOE]. The report was subsequently posted by SCI on its Internet site. Plaintiff then initiated a CPLR Article 78 seeking a court order compelling SCI to remove the report from its website.

Supreme Court denied the petition filed by Plaintiff and dismissed the proceeding. The Appellate Division unanimously affirmed the lower courts ruling. The Appellate Division ruling that SCI's decision not to remove the report upon Plaintiff's request was not arbitrary and capricious, citing Matter of Peckham v Calogero, 12 NY3d 424. The court also noted that the record demonstrated that SCI considered Plaintiff's "refusal to participate in its investigation, the nature of the conduct it substantiated, and the public interest in exposing the misconduct."

Thus, said the court, "[i]t was not unreasonable for SCI to conclude that [Plaintiff's] untimely rebuttal, submitted to the DOE months after it adopted SCI's recommendations, and the almost 10 years that passed from the report's publication before [Plaintiff's] current request, did not compel the report's removal," Further, said the Appellate Division,  the Special Commissioner is authorized to "issue such reports regarding corruption or other criminal activity, unethical conduct, conflicts of interest, and misconduct, that he or she deems to be in the best interest of the school district," sustaining the SCI's power to publish it report on the Internet.

The decision is posted on the Internet at:  http://www.nycourts.gov/reporter/3dseries/2020/2020_00033.htm

Making it right notwithstanding two wrongs

In the event two or more employees are found guilty of being involved in a wrongdoing, one individual might decide to sue one or more of the other wrongdoers for redress or damages.

In a case involving Person A lending some money to a friend, Person B. Person B later refused to repay a loan contending that the repayment of the money is not judicially enforceable because the loan was funded by the proceeds of illegal gambling, which resulted in Person A suing Person B seeking a court order mandating that Person B repay the loan to Person A.

The Court of Appeal, affirming a ruling by the Appellate Division, held:

'The doctrine of waiver does not preclude consideration of [Person B's] challenge here to the enforceability of the loan on the ground that it was funded by illegal gambling proceeds. Nevertheless, that defense was properly rejected on the merits. Given our strong public policy favoring freedom of contract, agreements are generally enforceable by their terms (159 MP Corp. v Redbridge Bedford, LLC, 33 NY3d 353, 359-361 [2019]). There is an affirmed finding, supported by the record, that the parties entered into a bona fide loan agreement and the facts do not support voiding the agreement on public policy grounds.

"Neither the terms of the agreement nor [Person A's] performance — i.e., loaning money to a friend — was intrinsically corrupt or illegal. Although the loan was funded by the parties' illegal gambling operation (for which both were criminally prosecuted), the record does not support a characterization of their conduct as "malum in se, or evil in itself" (Lloyd Capital Corp. v Pat Henchar, Inc., 80 NY2d 124, 128 [1992]) and the source of funds used for a loan is not typically a factor in determining its validity.

"[Person B] argues the agreement should be deemed unenforceable because the courts should not assist a party in profiting from ill-gotten gains. But, here, where both parties were involved in the underlying illegality, neither enforcement nor invalidation of the contract would avoid that result. Indeed, if the loan is not enforced, [Person B] receives a windfall despite his participation in the criminal acquisition of the funds. We have been reluctant to reward "a defaulting party [who] seeks to raise illegality as a sword for personal gain rather than a shield for the public good'" (id., quoting Charlebois v Weller Assoc., 72 NY2d 587, 595 [1988]; cf. McConnell v Commonwealth Pictures Corp., 7 NY2d 465 [1960]). Although we do not condone [Person A's] illegal bookmaking business, for which he was prosecuted and fined, the circumstances presented here do not warrant a departure from this tenet."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_09058.htm

Effective date of permanent appointment to a position in the classified service

In an appeal challenging the termination of an employee before the completion of his probationary period, the Appellate Division  noted  that the appointing authority had determined that at the time of the employee's termination there were 25 days remaining in his probationary period and that, because he had not yet been "permanently appointed to the position, he was not entitled to a pretermination hearing under Civil Service Law §75 or the applicable collective bargaining agreement."

It would have been more accurate had the appointing authority indicated that there were 25 days remaining in the employee's probationary period and that although he had completed his minimum period of probation, he had not yet attained tenure in the position and thus the employee, although appointed to the position as a permanent employee, was not entitled to a Civil Service Law §75 pretermination hearing or an equivalent disciplinary procedure set out in the controlling collective bargaining agreement

As a general rule, an individual appointed to a position on a permanent basis has such status on the effective date of the "permanent appointment" but does not attain tenure in the position until:

[1] he or she satisfactorily completes his or her maximum period of probation; or

[2] by estoppel, acquisition, default, or otherwise by operation of law; or

[3] as the result of the appointing authority's lawfully truncating the individual's maximum period of probation.

In addition, tenure may be acquired in consideration of certain military service performed during a probationary period or by other lawful process.

York v McGuire, 63 NY2d 760, sets out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.”

This limitation on summarily dismissing a probationary employee during the minimum probationary period is to provide the individual a minimum period of time to demonstrate his ability to satisfactorily perform the duties of the position. In contrast, should the appointing authority elect to terminate a probationary employee before he has completed the required minimum period of probation, the individual is entitled to administrative due process, i.e., "notice and hearing," otherwise to be accorded a "tenured employee."

Further, the distinction between a date of "permanent appointment" in the position in contrast to the date on which an appointee "attains tenure" in the position is illustrated in other provisions of the Civil Service Law such as §80.1, Layoff, where, in pertinent part, it provides that ... incumbents holding the same or similar positions shall be made in the inverse order of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction in which such abolition or reduction of positions occurs".

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05744.htm

Where certain disciplinary charges and specifications fail to survive judicial review the appointing authority must determine the appropriate penalty to be imposed based on the surviving charges and specifications

The Appellate Division ruled that dismissal of one or more Charges and, or, specification set out in a §75 disciplinary action required remanding the matter to the appointing authority for reconsideration of the disciplinary penalty imposed on the employee.

The appointing authority filed disciplinary charges against an employee [Petitioner] pursuant to Civil Service Law §75. Charge I consisted of six specifications alleging misconduct and, or, incompetence in connection with the Petitioner's performance in handling "911 calls" on a specified date while Charge II, consisted of five specifications, alleged misconduct and, or, incompetence in  Petitioner's handling of 911 calls on a different specified date.

After Petitioner testified concerning the "911 calls" underlying Charges I and II, the appointing authority directed a further investigation into the Petitioner's handling of other 911 calls. The findings resulting from this "further investigation" led to the appointing authority's filing "seven supplemental charges", Supplemental Charges I through and including VII against the Petitioner. Each such supplemental Charge set out multiple specifications of alleged misconduct in Petitioner's handling of these seven additional "911 calls."

The §75 disciplinary hearing officer designated by the appointing authority found Petitioner guilty of various, but not all, Charges and specifications and recommended that the Petitioner's employment be terminated given "the number and extent of his instances of misconduct and/or incompetence."

Petitioner then initiated a CPLR Article 78 action in Supreme Court seeking a judicial review the appointing authority's determination to impose the penalty of dismissal from employment. Supreme Court transferred the matter to the Appellate Division pursuant to CPLR §7804(g).

The Appellate Division explained that judicial review of an employee's Article 78 proceeding involving employee discipline made after a hearing pursuant to Civil Service Law §75 is limited to consideration of whether that determination was supported by substantial evidence. Further, the Appellate Division opined that courts may not weigh the evidence or reject the choice made by the appointing authority where the evidence is conflicting and room for choice exist, or where  different inferences may be drawn, as "the duty of weighing the evidence and making the choice rests solely upon the [appointing authority]."

Here any credibility issues were resolved by the disciplinary hearing officer. Further, substantial evidence in the record supports the determination that the Petitioner was guilty of the misconduct alleged in certain, but not all, Charges and Specifications. Here, however, the Appellate Division ruled that "specifications 3 and 4 of Charge II, and  a portion of specification 6 of Supplemental Charge VII cannot be sustained."

Concluding that the appointing authority had imposed the penalty of termination of Petitioner's employment in consideration of "all of the specifications for which he was found guilty, and [the court had dismissed] three of those specifications," the Appellate Division, citing Aronsky v Board of Educ., Community School Dist. No. 22 of City of N.Y., 75 NY2d 997, vacated the penalty of dismissal and remitted the matter to the appointing authority "to consider the appropriate penalty to be imposed upon the remainder of the charges and specifications for which he was found guilty, and the imposition of that penalty thereafter" in consideration of only the Charges and specifications that had survived judicial review.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07582.htm

New Executive Director of the New York State Committee on Open Government named

On January 6, 2020, New York's Secretary of State Rossana Rosado announced the appointment of Shoshanah Bewlay, Esq., as Executive Director of the New York State Committee on Open Government.

Ms. Bewlay previously served as the General Counsel and Chief Legal Officer at the NYS Office of Information Technology Services, where she oversaw the agency’s legal department, providing advice and guidance on legal and regulatory compliance, information security and data breach response, legal and technical eDiscovery compliance for the New York State executive agencies, New York State IT policy and strategy alignment, IT procurement and contracting, and New York State public ethics. Prior to serving as the General Counsel, Ms. Bewlay served as the agency’s Records Access Officer and Personal Privacy Protection Officer.

The Committee on Open Government, housed in the Department of State, oversees and advises the government, public, and news media on Freedom of Information, Open Meetings, and Personal Privacy Protection Laws. The Committee offers guidance in response to phone inquiries, prepares written legal advisory opinions, and provides training to government and other interested groups. Recommendations to improve open government laws are offered in an annual report to Governor and the State Legislature.

Information concerning the jurisdiction and operations of the Committee on Open Government is posted on the Internet at:

https://www.dos.ny.gov/coog/index.html

First Amendment protections do not extend to agency fee payors in a collective bargaining unit established pursuant to the Taylor Law

The New York State Thruway Authority [Authority] initiated a layoff involving certain thruway employees, including individuals that were "agency fee payors" as permitted by Article 14 of the Civil Service Law, typically referred to as the Taylor Law.  Danny Donohue, as President of the Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, and others [Plaintiffs] filed suit against the Authority alleging that the termination of union-represented employees violated the employees' First Amendment right of association.

In the course of the litigation the Federal District Court, Southern District of New York had certified the following question to the United States Circuit Court of Appeals, Second Circuit, citing its decision in State Employees Bargaining Agent Coalition v. Rowland:*

Are 'union-represented individuals during the bargaining process' — consisting of both union members and agency fee shop payors [AFPs]** — a protected class, such that employment decisions based on employees' union representation during collective bargaining are subject to strict scrutiny?

The Circuit Court of Appeals, considering its decision in Rowland in which it ruled that union activity is protected by the First Amendment right to freedom of association and that heightened scrutiny applies to employment decisions that target an employee “based on union membership,” held that Rowland did not extend to AFPs represented by an employee organization for the purposes of the Taylor Law.

The court found that First Amendment protections applied to union members but did not extend to AFPs based on union representation alone, explaining "AFPs who affirmatively disassociated with a union by objecting to paying for a union's political and ideological projects but who continued to be represented by the union during collective bargaining could not claim that an adverse employment action interfered with their right to associate with the union. In extending Rowland to all AFPs purely because they were represented by a union in collective bargaining, the District Court went too far."

Accordingly, the Circuit Court vacate and remand the district court’s order as it applied to AFPs but affirm the District Court’s order as it applied to union members.

* See 718 F.3d 126.

**  In accordance with the Supreme Court's decision in Janus v. American Federation of State, County, and Municipal Employees Council 31, 138 S. Ct. 2448, a union may no longer collect any fee from an AFP absent the AFP's affirmative consent.

The decision is posted on the Internet at:

https://law.justia.com/cases/federal/appellate-courts/ca2/17-2832/17-2832-2019-11-18.html