Application for accidental disability retirement benefits rejected on finding that the alleged disability was not suffered in the performance of the applicant's duties.

Plaintiff in CPLR Article 78 action appealed Supreme Court's dismissal of her petition seeking to have the court annul the New York City Employees' Retirement System's [NYCERS] determination denying Plaintiff's application for accidental disability retirement [ADR]. Plaintiff appealed.

Citing Borenstein v New York City Employees' Retirement System, 88 NY2d 756, the Appellate Division sustained Supreme Court's ruling, concluding that the denial of Plaintiff's application for ADR was "not arbitrary and capricious, but [was] based on credible evidence in the record."

The court noted NYCERS' findings that:

[1] Plaintiff was neither physically nor mentally incapacitated based on her medical and mental health records, an independent psychiatric examination, and her interview before NYCERS' Medical Board;

[2] There was no contemporaneous evidence showing the circumstances of a physical assault on Plaintiff by her coworker as described by the Plaintiff during the administrative proceeding on the date she set out in her application for ADR; and

[3] The alleged physical and psychological injuries caused by the alleged physical assault did not result from an accident or arise in the course of Plaintiff's performance of her duties.

As to Plaintiff's claim that she was deprived of due process, the Appellate Division said that allegation "is belied by the record showing that she was given an adequate opportunity to present her case before [the NYCERS]."

The decision is posted on the Internet at

http://www.nycourts.gov/reporter/3dseries/2020/2020_06229.htm.

 

Governor Cuomo releases guidelines on testing protocol for schools to reopen in red or orange micro-cluster zones

On October 31, 2020, Governor Andrew M. Cuomo released guidelines for schools to reopen in red and orange micro-cluster zones in order to help keep schools in focus areas open to in-person instruction. The guidelines require mass testing in schools before they reopen followed by vigilant symptom and exposure screening conducted daily. Impacted schools can reopen as early as Monday. However students and faculty must be able to provide a negative COVID-19 test result prior to going back to the classroom.  

New York State will provide rapid test kits for schools wishing to participate.

"In the micro-cluster zones, we've been working with schools in the red and the orange zones. The schools, private schools, Catholic schools, yeshivas, want to be open in the red and orange zones, and we've been working with them to try to find ways to keep people safe but allow children to go to school," Governor Cuomo said. "We have agreed with them on a protocol that keeps people safe and allows children to be educated."

In order for a school to reopen in a red or orange micro-cluster zones, schools must:

Remain closed for at least 4 calendar days after the zone designation is announced (48 hours to ensure lack of infectious contact in the school, and additional time for testing), and may re-open as early as the 5th calendar day.

Ensure that no person may attend in-person on the campus without first receiving a negative test result, this applies to faculty/staff as well as students.

Schools may reopen after these steps are taken, with students and faculty/staff who are positive or close contacts of positive cases appropriately excluded from school grounds. Additionally, the test result must be no more 7 days past the date of specimen collection on the day in-person learning reopens and date of specimen collection must be after date the zone was established.

After a school reopens in a red or orange micro-cluster zone, vigilant symptom and exposure screening must be conducted daily and must follow the below guidelines:

25% of the in-person learning school community (both students and faculty/staff) must be tested per week.

The school should ensure that it provides opportunities to test on school grounds, or otherwise facilitates testing and accepts test results from healthcare providers.

If the school does not hold a testing event or provide testing on school grounds, test results provided to the school as part of the 25% testing of the population must be received within 7 days from the date of specimen collection and specimen collection must be after the school reopens.

Each week the 25% of the school population tested must be composed of unique individuals who have not previously been tested for the surveillance screening, as part of the weekly 25% testing until the fifth week of weekly testing at which point the individuals who participated in the first week of testing should be tested again.

Members of the school community who test positive must isolate according to established guidelines.

Contact tracing must be performed to ensure that contacts to newly identified positive individuals are quarantined according to established guidelines.

New York State will provide schools with rapid test kits if requested. The schools must provide certified personnel (with necessary laboratory permits) to do the tests, and all results must be entered into ECLRS and reported on the school survey to the NYS COVID-19 Report Card.

Schools that cannot meet the reopening requirements must remain in remote learning for the duration of the zone designation. If the 25% of the school population random sampling generates a minimum of 9 cases, or if for a sample size of more than 300 weekly tests, achieves a positivity rate of 2% (6 cases or more depending on size) in New York City, or 3% (9 or more cases) outside of the city, then the school will be required to close. Reopened schools that fail to comply with these requirements could be subject to Section 16 orders, or other fines and penalties.

Qualified privilege in an action seeking damages for alleged defamation

 In this action to recover damages for alleged defamation, the several defendants [jointly "Respondents"] separately appealed from an order of Supreme Court denying their separate motions to dismiss the complaint insofar as asserted against each of them.

The president [Plaintiff] of a local branch of a labor union representing the workers of the Respondent private sector employer [Company] commenced this action to recover damages for defamation, alleging that the Company, together with the Company's owner [Owner]  and the Company's attorney [Attorney] made certain defamatory statements about Plaintiff, which were then widely distributed to the Company's employees in an effort to influence the outcome of an affiliation contest between the Plaintiff's union and a rival union.

Plaintiff further alleged, among other things, that the several Respondents made the defamatory statements with knowledge of their falsity and for the purpose of damaging the Plaintiff's reputation among the Company's employees and impugning his ability to continue acting as president of the union's local branch. The Plaintiff also alleged that, as a result of the conduct of the several Respondents he suffered actual, compensable damage to his reputation.

Affirming the decision of the Supreme Court, the Appellate Division explained that where, as here, either party to a labor dispute is alleged to have circulated false and defamatory statements during the course of labor negotiations, "a qualified privilege attaches," which renders the action preempted by federal law. In order to overcome this qualified privilege and retain state court jurisdiction over the matter, the court said that the plaintiff's pleadings must allege both that the statements were made with malice and that they injured the plaintiff. *

Holding that contrary to their contention, and with respect to "the appellants appearing separately and filing separate briefs," the court opined that Plaintiff's pre-answer motions must be assumed to be true and are sufficient to overcome the qualified privilege relied upon by these appellants.

Accordingly, the Appellate Division affirmed the Supreme Court's determination denying the separate motions of the appellants appearing separately to dismiss the complaint insofar as asserted against each of them, with one bill of costs payable by the appellants appearing separately and filing separate briefs.

* See O'Neil v Peekskill Faculty Assn., 120 AD2d 36 at 42

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06090.htm

Employee's failure to the give employer give due notice of the accident and other factors defeats employee's claim for a benefit arising from the collective bargaining agreement

Petitioner [Plaintiff] filed a petition pursuant to CPLR Article asking the Supreme Court  to annul the New York City Transit Authority's [NYCTA] decision to deny her differential pay for an injury she allegedly sustained while flying to Nevada for a training course. Plaintiff had traveled to Nevada on September 25 and attended the training course through September 28. On the evening of September 28, she sought treatment for bilateral calf pain and was diagnosed with deep vein thrombosis [DVT], which was allegedly caused by the long flight. Plaintiff notified her supervisor of the diagnosis on September 29, and ultimately received Worker's Compensation benefits for her injury.

On the following January 9, Plaintiff submitted a request for "differential pay," a benefit available to NYCTA employees under the collective bargaining agreement between Plaintiff's union and NYCTA. NYCTA denied Plaintiff's request contending [1] Plaintiff had reported the injury late and [2] Plaintiff was not engaged in a workplace activity when she sustained the injury.

The Appellate Division affirmed Supreme Court's determination that NYCTA's decision denying Plaintiff's request for the "differential pay" benefit was supported by a rational basis noting that "[t]he rules for receiving differential pay state that the employee must have sustained an accidental injury while engaged in the performance of his/her assigned duty for NYCTA, and such accidental injury was the direct cause of the employee's incapacity for work." Further, said the court, the rules require, among other things, "that the employee give due notice of the accident" and NYCTA reasonably found that Plaintiff "failed to provide timely notice of her injury, as she reported it four days after her flight." Nor did she specify that her injury was work-related but stated only that her  medical condition required time off from work.

In addition, the Appellate Division opined that Plaintiff failed to meet the other requirements for the "differential pay" benefit as there was "uncertainty regarding whether she was engaged in an assigned work activity when the injury occurred, since traveling to work is not considered a workplace activity," citing Greene v City of New York Dept. of Social Servs., 44 NY2d 322, and Plaintiff's "medical records showed that she had a personal history of DVT and other comorbidities."

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_05131.htm

 

An arbitrator's determination may be based on hearsay testimony

Supreme Court confirmed an arbitration award terminating petitioner's [Educator] employment as a tenured teacher.

The Appellate Division unanimously affirmed the lower court's ruling, explaining that the  arbitrator's determination that Educator's teaching performance and judgment were poor during the relevant three-year period has a rational basis in the record and was not arbitrary and capricious.

The record, said the court, includes 10 substantiated written observational reports and testimony from multiple school administrators demonstrating inadequate teaching, efforts at remediation, and lack of improvement over the three-year period. In addition there was evidence that the Educator behaved unprofessionally toward a student.

Although Educator argued that there was no direct evidence substantiating certain of the charges against her, the Appellate Division noted that "an arbitrator's determination may be based on hearsay,"* citing Matter of Colon v City of N.Y. Dept. of Educ., 94 AD3d 568. Further, opined the court, "courts may not reweigh the evidence or substitute their own credibility determinations for those of the arbitrator."

Citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, the Appellate Division said that under the circumstances, the arbitrator's imposing the penalty of termination did not shock its sense of fairness.

* Concerning the use of hearsay evidence in administrative proceedings, it is well established that "[h]earsay evidence can be the basis of an administrative determination" [see Gray v Adduci, 73 NY2d 741]. Notwithstanding the admissibility of hearsay as competent evidence, an employee may not be found guilty of charges solely on the basis of hearsay; some real evidence is required [Brown v Ristich, 36 NY2d 183; Carroll v Knickbocker Ice Co., 218 NY 435].

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_05586.htm

Claiming qualified immunity after denying an individual access to school district property

The petitioner [Plaintiff] appealed the dismissal of her 42 U.S.C. §1983 claims against the Central School District [District] and the District's Superintendent [Superintendent] by a federal district court.

Plaintiff had contended that her First Amendment and due process rights were violated when the Superintendent required her to obtain prior written permission to visit school property and that the Superintendent "expanded the scope of the restriction in retaliation for her objection to this requirement," and that these alleged violations occurred pursuant to a District custom or policy.

The United States Court of Appeal, Second Circuit, affirmed the federal district court's dismissal of Plaintiff's complaint, rejecting her arguments that:

(1) the limitations on her access to school property were not reasonable because no reasonable person could have believed that she was attempting to evade the school’s security procedures or that she otherwise presented a risk of disruption; and 

(2) in the absence of such a justification and because [the Superintendent] imputed a “negative” opinion of the school to her, a reasonable factfinder could conclude that the restrictions placed on her also were not viewpoint-neutral."

The court explained that the district court’s grant of qualified immunity to the District and Superintendent was premised on its conclusion that the parties did not dispute that the restriction “was a content-neutral response to [Plaintiff's] attempt to circumvent the school’s security protocol.”

In the words of the Circuit Court, “Qualified immunity insulates public officials from claims for damages where their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

Addressing the doctrine of qualified immunity, the decisions notes that “[W]hen a defendant official invokes qualified immunity as a defense in order to support a motion for summary judgment, a court must consider two questions: 

(1) whether the evidence, viewed in the light most favorable to the plaintiff, makes out a violation of a statutory or constitutional right; and

(2) whether that right was clearly established at the time of the alleged violation”

and under the second prong, officials are “entitled to qualified immunity [when] their decision was reasonable, even if mistaken.”

Qualified immunity is an affirmative defense and the defendant bears the burden of proof. Plaintiff did not present any evidence that contradicted the Superintendent's testimony that he believed that Plaintiff was attempting to bypass the school’s security policy when he confronted her on the morning of the incident nor did Plaintiff ever argued that the initial restriction announced in the letter sent to her was "viewpoint-based."

Thus, said the court "[a]bsent a genuine dispute as to whether the restriction on [Plaintiff’s]  access to school property was viewpoint-based, [the Superintendent] is entitled to qualified immunity on [Plaintiff’s] First Amendment claim because the evidence, even construed in [Plaintiff's] favor, established that a reasonable official could have believed that (1) [Plaintiff] was attempting to circumvent school security procedures and (2) the notification restriction was a reasonable and constitutional response to her actions."

Further, said the court, "it was not clearly established that a permission requirement was an unconstitutional response to a parent’s attempt to evade a security restriction," noting  that based on its precedent, including its conclusions about the contours of parents’ clearly established First Amendment rights at the time of the underlying events, "a reasonable superintendent in [the Superintendent's] position could have concluded that a parent can lawfully be restricted from school activities based on a risk of disruption or safety concerns as long as those concerns are not a pretext for viewpoint discrimination, and that a requirement that a parent receive prior permission to enter school property is a minor and reasonable response to such concerns."

Addressing Plaintiff's argument that the District was liable for the alleged violations of her constitutional rights because it maintained a custom or policy of permitting the Superintendent to make unilateral decisions regarding the enforcement of the District visitor’s policy, in contravention of the written policy placing this authority with school principals, the Circuit Court stated that to establish liability against the District under 42 U.S.C. §1983 Plaintiff was required to show that an official custom or policy caused a violation of her constitutional rights.* Here, again in the words of Circuit Court, "the district court properly concluded that the cited custom did not cause a deprivation of [Plaintiff's] rights — a custom of delegating authority to enforce the District visitor’s policy to [the Superintendent] does not establish the existence of a custom of permitting [the Superintendent] to exercise that authority unlawfully."

Finding that the Plaintiff did not show the existence of a policy or custom of imposing unconstitutional restrictions on access to District property and noting that the Superintendent had restricted access to school property on only four other occasions in the more than ten years he served as Superintendent, and there is no evidence that these other restrictions were not reasonable responses to legitimate safety concerns, the Circuit Court held that the district court properly granted summary judgment to the District on Plaintiff’s Monell claim.

* See Monell v. Dep’t of Social Services of the City of N.Y., 436 U.S. 658.

The decision is posted on the Internet at https://www.leagle.com/decision/infco20201022076

 

A court will not confirm an arbitration award where it is in explicit conflict with law, rule or regulation and the relevant policy concerns

In this proceeding brought pursuant to CPLR Article 75 to modify an arbitration award the Nassau Healthcare Corporation [Employer] appealed that portion of an arbitration award that ordered the Employer to reinstate three Petitioners* [Employees] to their former positions while the Employee's cross-appealed that part of the arbitration award providing for reinstatement without back pay.

The genesis of this action was the Employees being terminated by the Employer based upon an incident that occurred during which the Employees allegedly ignored approximately nine minutes of visual and audible alarms signaling that a ventilator-dependent resident was in respiratory distress.

Pursuant to the collective bargaining agreement, the Employees' collective bargaining representative filed a grievance challenging these terminations and the matter ultimately proceeded to arbitration. The Employees elected not to testify at the hearing.**

Following the hearing, the arbitrator issued an award finding that Employer did not sustain its burden of proving that the blaring alarm of the central alarm system throughout the unit, which signaled a respiratory emergency, was triggered. However, because of the employees' failure to testify at the hearing, the arbitrator drew an adverse inference against them on the factual issue of whether the beeping alarm coming from the ventilator machine in the patient's room itself, which did not necessarily signal an emergency, was audible to them at the nursing station.

The arbitrator ruled that the Employees should be reinstated to their former positions, but directed that they be reinstated without back pay. Supreme Court confirmed the arbitration award and the Employer appealed.

The Appellate Division granted the Employer's motion to vacate the arbitration and dismissed the Employee's cross-appeal seeking back-pay as academic. The court also awarded "one bill of costs" to the Employer, payable by the Employees.

The Appellate Division, citing Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, and Matter of Banegas v GEICO Ins. Co., 167 AD3d 873, pointed out that an arbitration award may be vacated if it violates strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on an arbitrator's power.

Considering the public policy exception, the Appellate Division commented that "a court may vacate an arbitral award where strong and well-defined policy considerations embodied in constitutional, statutory or common law prohibits a particular matter from being decided or certain relief from being granted by an arbitrator" and the focus of the analysis [in making that determination] is on the award itself." Quoting from New York State Correctional Officers and  Police Benevolent Assn. v State of New York, 94 NY2d at 327, the Appellate Division held that a court may vacate an award on public policy grounds "where the final result creates an explicit conflict with other laws and their attendant policy concerns,.

Here, opined the Appellate Division, the record reflects that after the employees were indicted on felony charges, the Office of Medicaid Inspector General [OMIG] notified the employees that they were excluded "from participation in the New York State Medicaid program based on New York State regulations authorizing the immediate exclusion of a person who has been charged with committing an act which would be a felony under the laws of New York and which relates to or results from," among other things, "the furnishing of or billing for medical care, services or supplies."

Citing 18 NYCRR 515.5(c), the court said that "[a] person who is excluded from the program cannot be involved in any activity relating to furnishing medical care, services or supplies to recipients of medical assistance for which claims are submitted to the program, or relating to claiming or receiving payment for medical care, services or supplies during the period." Further, the regulations also preclude reimbursement for medical care, services, or supplies provided by an excluded person.

Clearly the final result of the arbitrator's award in this case, reinstating the Employees to their former positions, "creates an explicit conflict with the subject regulations and their attendant policy concerns." Accordingly, under the particular circumstances of this case, the Appellate Division concluded that Supreme Court should have granted the Employer's motion to vacate that portion of the award providing for the reinstatement of the Employees, thereby mooting their claims to back salary.

* The three Employees involved were two registered nurses and a nurse aide

** Subsequently the Employees were indicted on several misdemeanor and felony charges, including criminally negligent homicide..

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06777.htm

 

Claim of having an "invisible" or "hidden" disability undermines unlawful disability discrimination complaint

New York State Division of Human Rights [DHR] found no probable cause to believe that the New York City Human Resources Administration [HRA] had discriminated or retaliated against the petitioner [Plaintiff] in violation of the New York State Human Rights Law and dismissed Plaintiff's compliant. Plaintiff filed a CPLR Article 78 petition challenging DHR's determination.

The Appellate Division unanimously affirmed DHR's ruling, explaining that the DHR's determination of no probable cause to find that HRA engaged in disability discrimination against Plaintiff was rationally based in the record and not arbitrary and capricious.

Plaintiff had described her traumatic brain injury condition as an "invisible" or "hidden" disability, meaning that the "symptoms are invisible" and "not immediately apparent." This, said the court, "undermines [Plaintiff's] interactive dialogue contention, and indeed her disability discrimination and reasonable accommodation claims, since it suggests that it would not have been evident to HRA staff interacting with her that she was in fact disabled."

Further, noted the Appellate Division, it also did not appear that 'Plaintiff ever substantiated her disability for the HRA staff she interacted with," such as by presenting of a doctor's note" nor did Plaintiff ever demonstrate to HRA that her disability reasonably warranted the accommodation she requested. Addressing Petitioner's "broader disability discrimination claim -- that HRA staff "mistreated her and sidetracked her application because of animus against disabled persons" -- the court again opined that such an assertion was undermined by her claim that her traumatic brain injury is "invisible."

Coupled with Plaintiff's own claim that "HRA staff mistreated everyone at the job center," the Appellate Division concluded that DHR had rationally determined that Plaintiff failed to show that she was treated adversely under circumstances warranting an inference of discrimination.

As to Plaintiff's allegations of retaliation, the court decided that DHR rationally determined that HRA did not retaliate against Plaintiff and that HRA's initial denial of her application was not arbitrary in view of the fact that is was accompanied by an explanation that Plaintiff had "failed federal poverty guidelines." Plaintiff, said the Appellate Division, presented no evidence that this explanation "was false or pretextual and that discrimination and/or retaliation was the real reason" for HRA's action.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06038.htm

New York State Bar Association Local and State Government Law Session Three: October 29

Topics in Municipal Labor Relations During the Pandemic:

Part One – Civil Service and Educator Layoffs and Reductions in Force

Part Two – FLSA Considerations in a Remote Working Environment

There are still seats available for the third session of the Local & State Government Law Virtual Fall Meeting Series. 

Register Now

A grievance filed pursuant to the relevant collective bargaining agreement bars the grievant's simultaneously submitting an Education Law §310 appeal concerning the same issue to the Commissioner of Education

Citing Matter of Board of Education, Commack UFSD v. Ambach, 70 NY2d 501, Interim Commissioner of Education Betty A. Rosa noted that "it is well-settled that a school employee who elected to submit an issue for resolution through a contractual grievance procedure may not bring an appeal to the Commissioner [of Education] pursuant to Education Law §310 for review of the same matter."

In this appeal to Interim Commissioner of Education Rosa the educator [Petitioner] challenged a determination of the Board of Education [Board] not to appoint him to a coaching position. Petitioner also joined the individual [Individual] whom the Board appointed to fill the position as a respondent.*

Petitioner holds permanent certification in the area of physical education, is a tenured physical education teacher and served as coach of the School District's boys’ varsity basketball team for 11 consecutive seasons prior to 2019. In 2019 the district’s director of physical education, health, and athletics informed Petitioner of numerous concerns with his performance as a coach and identified a number of “standards” that Petitioner would be required to comply with “[i]f [he] wish[ed] to continue to be recommended for the position of Varsity Boys[’] Basketball Coach.”** Petitioner signed this "counseling memorandum" which reflected his receipt of the memorandum and his acknowledgement that it would be placed in his personnel file.

In April, 2019, Petitioner was advised in writing of [1] “the termination of [his] assignment as Boys[’] Varsity Basketball Coach, effective immediately” and [2] that the letter that it was issued pursuant to the Faculty Association’s collective bargaining agreement. Thereafter, the Board advertised for the position of boys’ varsity basketball coach.  Four individuals applied to the position, including Petitioner and Individual.  The Board interviewed all four applicants and determined that Individual was the best candidate for the position.  In September 2019 the president of the Faculty Association requested that the reasons for Petitioner’s non-appointment.

Individual was appointed by the Board to serve as the boys’ varsity basketball coach and this appeal ensued in which Petitioner argued that [1] The Board violated 8 NYCRR §135.4 in appointing Individual to the boys’ varsity basketball coach position and [2] sought an order annulling Individual's appointment and ordering the Board to appoint Petitioner as the boys’ varsity basketball coach for the 2019-2020 season.

Respondents argue that the appeal must be dismissed because [1] Petitioner had pursued a grievance under the relevant collective bargaining agreement and [2] the Board further contends that its determination to appoint Individual to the position was neither arbitrary nor capricious.

The Commissioner ruled that Petitioner's appeal must be dismissed for lack of jurisdiction, observing that on the same day Respondents were served with a copy of the this §310 Appeal Petitioner filed a grievance under the Faculty Association’s collective bargaining agreement.  In that grievance, Petitioner requests that the Board “rescind the appointment” of Individual and appoint Petitioner as the boys’ varsity basketball coach for the 2019-2020 season.***

Noting that Petitioner raised the same claims in his §310 appeal as he raised in his grievance, the Commission dismissed his appeal, explaining that under the holding of in Board of Education, Commack UFSD v. Ambach, Petitioner’s "initiation of the grievance process [had] divested the Commissioner of jurisdiction over his instant claims for purposes of an appeal pursuant to Education Law §310."

Further, opined the Commissioner, "[i]n any event, Petitioner’s claims would be dismissed under the doctrine of election of remedies," as his prior commencement of an action or proceeding in another forum for the same or similar relief constitutes an election of remedies which precludes the initiation of an appeal to the Commissioner, explaining that "[i]t would be contrary to the orderly administration of justice for the Commissioner to decide issues that a petitioner has elected to raise in another forum."

Finally, although the Commissioner dismissed Petitioner's appeal on procedural grounds, the Commissioner pointed out that Petitioner's "prior misconduct does not fit neatly within the 'coaching qualifications' set forth in 8 NYCRR §135.4(c)(7)(i)(c)," earlier decisions of the  Commissioner of Education indicate that the Commissioner "has previously declined to find a board of education’s refusal to appoint a certified teacher as a coach to be arbitrary or capricious where the teacher, by his own affirmative acts of misconduct, removed himself from eligibility for such appointment."

* Petitioner also joined the individual whom the Board appointed to fill the position as a respondent. Respondent Board and the individual are referred to collectively as “Respondents” where appropriate.

** Petitioner signed this memorandum, which reflected his receipt of the memorandum and his acknowledgement that it would be placed in his personnel file.

*** The record reflects that the Board denied Petitioner’s grievance during the pendency of this §310 appeal and subsequently Petitioner sought to submit the Board’s determination to arbitration.

The decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume60/d17927

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Freedom of Information disclosure exemptions involving inter-agency or intra-agency materials

§86.3 of Article 6, "Freedom of Information" [FOIL] of the Public Officers Law, defines the term "Agency" as "any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."

Riverkeeper, Inc. [Riverkeeper] filed a FOIL request with the Port Authority of New York and New Jersey [Authority] seeking copies of certain communications between the Authority and the Federal Aviation Administration [FAA]. 

The Authority declined to provide these materials* and Riverkeeper filed a CPLR Article 78 petition seeking a court order requiring the Authority to provide it with the information it demanded. Supreme Court ordered the Authority to disclose the materials sought in Riverkeeper's FOIL request and the Authority appealed.

Citing Public Officers Law §87[2][g], and Matter of Town of Waterford v New York State Dept. of Envtl. Conservation, 18 NY3d 652, the Appellate Division held that Supreme Court "properly determined that the exemption to FOIL disclosure requirements for inter-agency or intra-agency materials ... does not apply to the communications between the Port Authority and the Federal Aviation Administration [FAA] because the FAA is a federal entity."

The Appellate Division also noted that Supreme Court "properly concluded that the common interest doctrine does not apply in this case."

* The basic concept underlying FOIL is that all government documents and records, other than those having access specifically limited by statute, are available to the public. The custodian of the records or documents requested may elect, but is not required, to withhold those items that are within the ambit of the several exceptions to disclosure permitted by FOIL. In other words, there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.  The release of some public records, however, may be limited by statute such as Education Law §1127 - Confidentiality of records and §33.13 of the Mental Hygiene Law - Confidentiality of clinical records. 

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_05833.htm