Resolving a challenge to the denial of an application for accidental disability retirement benefits resulting from a tie vote by the pension fund's Board of Trustees

The New York City's Police Pension Fund [Fund] Medical Board [Medical Board] concluded that the disability of an individual's [Applicant] for accidental disability retirement benefits [ADR] "stemmed from an unsuccessful spinal surgery and not from a line-of-duty incident." As the Fund's Board of Trustees [Trustees] review of the Medical Board's decision resulted in a tie vote, Applicant was denied accidental disability retirement [ADR] pension benefits and was awarded ordinary disability retirement [ODR] benefits instead. 

Applicant then filed a CPLR Article 78 petition seeking a Supreme Court order annulling the Trustee's action and the Medical Board's determination. Supreme Court dismissed the proceeding and the Appellate Division unanimously affirmed the lower court ruling.

Citing Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, the Appellate Division explained that in the event the Fund's Trustees' determination is the result of a tie vote, the reviewing court may not set aside the denial of ADR benefits "unless it can be determined as matter of law on the record that the disability was the natural and proximate result of a service-related accident."

Accordingly, said the court, in the event that there some credible evidence which supports the Medical Board's findings, a court may not substitute its judgment for that of the Medical Board, noting the decision by the Court of Appeals in Borenstein v New York City Employees' Retirement Sys., 88 NY2d 756 on this point.

Notwithstanding the Applicant's contentions to the contrary, the Appellate Division said that the record shows that the Medical Board reviewed all of the relevant evidence, including Applicant's medical records. Further, said the court, the Medical Board conducted three separate evaluations of the Applicant before reaching its final determination that ultimately resulting in her being awarded ODR benefits. 

Finding that there was credible evidence in the record to support the Medical Board's determination, the Appellate Division opined that the Trustees' denial of the ADR benefits sought by the Applicant should not be disturbed, affirming the Supreme Court's ruling in this matter.

Click HERE to access the Appellate Division's decision.

 

The Freedom of Information Law and Collective Bargaining

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 otherwise 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. 

In Uniformed Fire Officers Association et al. v. de Blasio et al., Nos. 20-2789-cv, 20-3177-cv,  the United States Circuit Court of Appeals, Second Circuit, addressed a number of issues arising after the repeal of §50-a of New York State's Civil Rights Law. §50-a had for decades shielded the disciplinary records of sworn law enforcement personnel from public disclosure.

In addition, the Circuit Court noted the following:

1. Citing Matter of M. Farbman & Sons v. N.Y.C. Health and Hosps. Corp., 62 N.Y.2d 75, the Circuit Court noted that with respect to records that must be disclosed under FOIL, a public employer cannot bargain away its FOIL disclosure obligations; and

2. Citing Trump v. Deutsche Bank AG, 943 F.3d 10 627, vacated and remanded on other grounds, 140 S. Ct. 2019, the Circuit Court commented that a federal district court may grant a preliminary injunction where the moving party "demonstrates irreparable harm and meets either of two standards: (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation, and a balance of hardships tipping decidedly in the movant’s favor”. 

* The release of some public records pursuant to a FOIL request 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. 

Click HERE  to access the full text of the decision by the Circuit Court, which opinion, in particular, contains the two observations set out below.

  

 

An employer may rely on its medical expert's opinion if there are conflicting medical opinions as to an applicant's ability to perform the duties of the position

Supreme Court granted the New York City Fire Department's [NYFD] motion to dismiss Plaintiff's CPLR Article 78 petition challenging NYFD's decision disqualifying him for appointment the position of firefighter for medical reasons. Plaintiff's appeal from the Supreme Court's decision was sustained by the Appellate Division, which found that NYFD's decision was not arbitrary and capricious, or without a rational basis.

Citing Matter of Rivers v New York City Dept. of Sanitation, 49 AD3d 436, the court said that the record indicated that Plaintiff "had profound sensorineural hearing loss in his left ear," which, under the standards promulgated by the National Fire Protection Association (NFPA), was grounds to disqualify him from appointment to the position of firefighter

NYFD's physician had considered Plaintiff's medical submissions and letters from his former colleagues, but ultimately determined that his unequal hearing would interfere with his ability to perform search and rescue operations safely, as well as tasks requiring an ability to localize faint sounds in high-noise environments.

NYFD's physician also opined that Plaintiff's hearing loss in his left ear was progressive and would further impair his ability to serve as a firefighter. 

Although Plaintiff's physicians had reached a different conclusion, the Appellate Division said that these different conclusions on the part of Plaintiff's physicians  "does not render [NYFD's] medical examiner's conclusions arbitrary and capricious."

Click HERE to access the Appellate Division's decision.

 

Terminating the services of an employee during a probationary period

In York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees before the completion of their required probationary period 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.”

Such may not the case where the individual is serving a disciplinary probationary period imposed as part of the "settlement of disciplinary charges" filed against the employee by the appointing authority.

Supreme Court had granted Plaintiff's CPLR Article 78 petition seeking [1] to annul a determination by the appointing authority [Employer] terminating Plaintiff from his position and [2] an order reinstating him to his former position with back pay. The Employer appealed the Supreme Court's ruling and the Appellate Division unanimously reversed the lower court's decision "on the law".

Plaintiff had contended that Military Law §243.9* controlled with respect his status as a probationary employee serving a "disciplinary probationary period" in this instance. The Appellate Division disagreed, holding that Plaintiff was not entitled to receive credit towards his "dismissal probationary period" for the time he was absent on military duty pursuant to §243.9 of the Military Law because "the statute is clear on its face that it applies only to probationary periods related to 'any position' to which [an individual] may ... be appointed or promoted."

Contrary to Plaintiff's argument, the Appellate Division opined that §243.9 does not, by its plain terms, apply to the dismissal of an individual serving a "disciplinary probationary period" imposed as part of a negotiated settlement agreement with an employer to resolve disciplinary charges filed against the individual. Further, said the court, "[i]f the legislature had intended the statute to apply more broadly, it would have so provided."

In addition, the Appellate Division's decision notes that "[b]ecause [Plaintiff] remained on dismissal probation at the time he was terminated, a hearing was not required."

Typically an individual serving a disciplinary probationary period may be summarily terminated from employment in the event a term or condition of the disciplinary probation is violated as demonstrated by the decision in Ramos v Coombe, 237 AD2d 713, leave to appeal dismissed 89 NY2d 981. 

In Ramos the Appellate Division held that an employee serving a disciplinary probationary period may be terminated without a hearing for violating the terms of the disciplinary probation.

In contrast, in Taylor v Cass, 122 AD2d 885, an employee won reinstatement with full retroactive salary and contract benefits after the court determined that the employee had been improperly dismissed while serving a "disciplinary probation."

The terms of the employee's probation provided that he could be terminated without any hearing if, in the opinion of his superior, his job performance was “adversely affected” by his intoxication on the job during the next six months. The employee was subsequently terminated without a hearing for “failing to give a fair day’s work” and for “sleeping during his scheduled working hours.” 

The Appellate Division concluded that the employee's dismissal was improper because the employee had not been  terminated for the sole reason specified in the settlement of the disciplinary action: intoxication on the job.

* §243.9 of the Military Law, probationary service, provides as follows: If a public employee or other person enters military duty before the expiration of the probationary period in any position to which he may have theretofore been appointed, or to which he may thereafter be appointed or promoted pursuant to subdivision six of this section, the time he is absent on military duty shall be credited as satisfactory service during such probationary period.  

Click HEREto access the decision of the Appellate Division in the instant case.

 

Municipal audits issued during the week ending February 26, 2021

New York State Comptroller Thomas P. DiNapoli announced the following municipal audits were issued during the week ending February 26, 2021.

Click on the text highlighted in color to access the complete audit report.

MUNICIPAL AUDITS

Danby Fire District – Claims Audit (Tomkins County)The board did not adequately audit claims. They authorized some unallowable claims to be paid prior to the audit. The district made 14 disbursements totaling more than $9,200 that should not have been paid prior to board approval. The district did not follow its credit card usage policy requiring documentation for four credit card purchases totaling almost $1,000.

 

Delhi Joint Fire District – Cash Receipts and Disbursements (Delaware County) The board ensured that $746,000 in cash receipts were properly deposited, recorded and disbursed. However, the board did not adequately audit claims and a cash receipts log was not maintained. The treasurer’s records were not reconciled to ensure that all receipts were deposited. In addition, $4,700 in fees were waived without evidence of board approval.

 

Sea Breeze Fire District – Board Oversight (Monroe County) The board did not provide adequate oversight of the district’s financial operations, nor comply with mandatory training requirements. The board also did not actively manage district assets and ensure the treasurer maintained basic accounting records including adequate bank and debt obligation records. The board failed to comply with legal mandates to perform an annual audit, file financial reports or audit and approve claims. As a result, the board could not effectively monitor the district’s operations and financial condition.

 

Town of Worth – Audit Follow-Up Letter (Jefferson County)Auditors conducted a follow up review of the town’s progress in implementing recommendations from a prior audit on the town’s financial operations. Auditors found little progress had been made. Of the nine audit recommendations, two recommendations were partially implemented and seven recommendations were not implemented.

 

Boosting economic development in a post-pandemic economy

Government Technology, Oracle, and leaders from the city of Vallejo, California, recently hosted a webinar titled How the City of Vallejo Boosted Economic Development in a Post-Pandemic Economy.*

The webinar focused on how the city recently adopted a new system that enables it to collect fees and manage planning entitlement, building permits and code enforcement processes more efficiently. Residents of the city can now conduct business with the city electronically, which has reduced call volumes and processing backlogs and improved the city’s ability to collect vital fees and accelerate critical planning and development processes.

Government Technology's Registration Coordinator Erica Lindley [elindley@govtech.com] invites readers to listen to the free webinar recording here.

* This information is posted pro bono.

Standing to submit an appeal pursuant to Education Law §310 to the Commissioner of Education

The first issue considered in this appeal to the Commission of Education concerning the termination of a probationary teacher addressed a procedural matter: persons or entities having standing to file an Education Law §310 appeal for consideration by the Commissioner of Education. 

To the extent the petitioner [Educator] in this Education Law §310 appeal sought to advance claims on behalf of her co-teacher, the Commissioner ruled that such claims must be dismissed for lack of standing. Citing Appeal of Abitbol, 57 Ed Dept Rep, and other decisions of the Commissioner of Education, the Commissioner noted that an individual may not maintain a §310 appeal "unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights."  

In other words, only persons and entities who are directly affected by the act or omission being appealed have standing to bring the appeal. Accordingly, Educator could only ask the Commissioner to consider claims of being "retaliated against and harassed" that she, herself, alleges she had suffered.

Turning to the merits of Educator's appeal, the decision notes that Education Law §2573(1)(a), provides that the New York City Department of Education [DOE] may discontinue the services of a probationary teacher “at any time and for any reason, unless the teacher establishes that the termination was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith.”* Further, in an appeal to the Commissioner the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.

The Commissioner dismissed Educator's appeal, explaining that:

1. Educator had neither alleged nor proven that her discontinuance of probationary employment was for a constitutionally impermissible reason or that it violated any statute; and

2. Although Educator attributed several inappropriate or inflammatory statements to her principal, Educator offered "no proof in support of these contentions beyond her own assertions."

Citing Matter of Hawkins v. Fariña, 171 AD3d 624, the Commissioner opined that Educator "failed to carry her burden of proving that [DOE] discontinued her probationary employment for a constitutionally impermissible purpose, in violation of a statute, or in bad faith.

* See Matter of Frasier v. Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763.

Click HERE to access this decision of the Commissioner of Education.

 

An employee found guilty of excessive absences may be terminated where such unreliability is shown to have a disruptive and burdensome impact on the employer

The Director of Security [Petitioner] employed by the School District [District] had repeatedly been warned, in person and in writing, that the number and frequency of his absences was unacceptably high in consideration of his position and that his failure to improve his attendance could lead to the termination of his employment.

Petitioner subsequently was served with disciplinary charges pursuant to §75 of the Civil Service Law alleging that he was guilty of "excessive absenteeism". The parties had reached a tentative settlement of these disciplinary charges when Petitioner again absented himself from work without notice. Ultimately a §75 disciplinary hearing was conducted and the hearing officer found Petitioner guilty of "certain charges of incompetence and insubordination." The District adopted the hearing officer's findings and terminated Petitioner's employment.

Petitioner commenced a proceeding pursuant to CPLR Article 78 seeking judicial review the District's determination. The Appellate Division, however, sustained the District's decision, explaining that:

1. In employee disciplinary cases, judicial review of factual findings made after a hearing pursuant to Civil Service Law §75 is limited to consideration of whether that determination was supported by substantial evidence;

2. Courts may not weigh the evidence or reject the choice made by an administrative agency where the evidence is conflicting and room for choice exists;

3. A municipal employee may be terminated for incompetence and misconduct due to excessive absences caused by physical incapacity after a disciplinary hearing; and

4. The fact that the employee may have had "a 'valid' reason for each one of the individual absences is irrelevant to the ultimate issue of whether his [or her] unreliability and its disruptive and burdensome effect on the employer rendered him [or her] incompetent to continue his [or her] employment."*

Finding substantial evidence in the record supporting the hearing officer's determination that the Petitioner was guilty of incompetence and insubordination as charged and that the record showed that Petitioner "had repeatedly been warned ... his absences was unacceptably high in light of his position as head of security for the district," the Appellate Division, citing Matter of Waldren v Town of Islip, 6 NY3d 735, opined that under the circumstances the penalty of termination was not so disproportionate to the offense as to be shocking to one's sense of fairness.

The Appellate Division then confirmed the District's determination and dismissed the Petitioner's appeal on the merits.

* In Wallis v. Sandy Creek Cent. School Dist. Bd. of Educ., 79 A.D.3d 1813, the  termination of the employee was upheld where the employee had received numerous warnings about her excessive absenteeism, her absentee rate was over 60% for a period of a year and one-half and she had been found to be insubordinate.

Click HERE to access the Appellate Division's decision in the instant appeal.

 

A former member of the New York City Council found to have accepted valuable gifts and services from an organization doing business with the City fined $15,000

The New York City Conflicts of Interest Board [COIB] adopted a report by New York City Office of Administrative Trials and Hearings Administrative Law Judge Kara J. Miller in which Judge Miller recommended imposing a fine of $15,000 on a former member [Respondent] of the New York City Council [Council].

ALJ Miller determined that Respondent had accepted valuable gifts and services on 18 occasions from a not-for-profit housing organization [NFP] doing business with the City of New York while serving as a member of the Council.

The NFP received $841,000 in discretionary funding from the Council which funding was sponsored by the Respondent. The ALJ held that some of these funds were used for trips and a dinner cruise around Manhattan for senior citizens living in the Respondent's district. The Respondent, while a Council member, and members of his family, participated in these trips and accepted free accommodations at a luxury resort as well as free tickets to a dinner cruise in violation of the City Conflicts of Interest Law.* The ALJ had determined that such attendance in these events did not serve a government purpose.

The COIB agreed with Judge Miller’s findings that the free hotel accommodations and dinner cruise tickets constituted valuable gifts and that Respondent's contention that his family members were serving as volunteers at the senior events was pretextual.

* The New York City Charter §2604(b)(5) states, in relevant part: “No public servant shall accept any valuable gift, as defined by rule of the board, from any person or firm which such public servant knows is or intends to become engaged in business dealings with the city,” while COIB Rule §1-01(a) defines a valuable gift to include “any gift to a public servant which has a value of $50.00 or more, whether in the form of money, service, loan, travel, entertainment, hospitality, thing or promise, or in any other form.”

Click HERE to access Judge Miller's findings and recommendation in this matter.

 

Webinar to address the SolarWinds data breach scheduled to be held March 2, 2021

On December 13, 2020, SolarWinds, a company that provides IT monitoring and management tools to the public sector, acknowledged that hackers had inserted malware into a service that provided software updates for its Orion platform, a suite of products used by many federal agencies. As a result, malicious code may have been pushed to as many as 18,000 customers, raising concerns among IT administrators across all levels of government in their ongoing battle against an evolvingly complex network of malware, cyber-extortionists, and cybersecurity risks.

What do we know about the SolarWinds data breach, and what lessons can IT leaders learn to help them fortify their digital properties?

On Tuesday, March 2, join CIVIC-PLUS' guests from its cybersecurity partner, SilverSky, for an in-depth analysis of the SolarWinds hack and best practices to keep your data secure.

Click here to Register Now

Extensive personal involvement by the appointing authority in a §75 disciplinary proceeding requires the appointing authority to recuse himself or herself from the decision-making process

The Appointing Authority [Respondent] in this litigation filed nine charges against a staff member  [Petitioner] pursuant to Civil Service Law §75 alleging, among other things, that Petitioner had improperly used her position to her financial benefit.

The §75 Hearing Officer found Petitioner guilty if eight of the nine disciplinary charges filed against her and, with respect to the penalty to be imposed, recommended that Petitioner be terminated from her position. The Respondent accepted the Hearing Officer's findings and recommendation and dismissed Petitioner from her position with the agency. Petitioner then commenced a CPLR Article 78 proceeding challenging the Respondent's terminating her employment.

Noting that the record before it indicated that the Respondent had initiated the charges against Petitioner, appointed the §75 Hearing Officer and had testified as a witness at the §75 disciplinary hearing, the Appellate Division, citing Matter of Ashe v Town Bd. of the Town of Crown Point, N.Y., 97 AD3d 1022, opined that in view of Respondent's "extensive personal involvement" she should have disqualified herself from the decision-making aspects of the disciplinary action at large.

In the words of the court, "Although involvement in the disciplinary process does not automatically require recusal ... individuals who are personally or extensively involved in the disciplinary process should disqualify themselves from reviewing the recommendations of a Hearing Officer and from acting on the charges."

Accordingly, the Appellate Division annulled the Respondent's decision and remanded the matter "for further proceedings not inconsistent with this Court's decision."

A similar situation underlies another Appellate Division decision, summarized in NYPPL at https://publicpersonnellaw.blogspot.com/2010/07/individual-terminated-based-on.html. 

The County Board [Board] filed disciplinary charges against one its employees [Supervisor] alleging misconduct and incompetence based on complaints of sexual harassment filed by a number of women supervised by Supervisor.

Found guilty of the charges, the Board dismissed Supervisor from his position. The Appellate Division, however, annulled the determination. The court said that one of the Board members had “improperly participated in the final determination” and there was no evidence “that the members of the Board had an opportunity to review the [disciplinary hearing] record” before making its decision.

The Appellate Division returned the matter to the Board for a re-determination, without the participation of the errant Board Member.

Click HERE  to access the Appellate Division's instant decision.

 

Revealing a public employee's home ZIP code held to be an unwarranted invasion of personal privacy for the purposes of New York State's Freedom of Information Law

Petitioner [Plaintiff] filed a Freedom of Information Law [FOIL] request with the New York State Department of Civil Service [DCS] seeking a document containing the (1) full name, (2) home zip code, (3) hire date, (4) labor organization, (5) bargaining unit and (6) payroll deduction type of all state employees in Classified Service.* DCS supplied Plaintiff with all the requested data except employees' home zip codes and payroll deduction type, explaining that DCS:

1. does not maintain data concerning payroll deduction type; and

2. withheld the employee's home zip codes pursuant to Public Officers Law §§87(2)(b) and 89(7) and Governor Cuomo's Executive Order No. 183.** 

Following an unsuccessful appeal to DCS's FOIL appeals officer, Plaintiff initiated a CPLR Article 78 proceeding challenging the partial denial of his FOIL request and seeking a court order requiring DCS to disclose the requested zip codes. Supreme Court, among other things, concluded that neither the Public Officers Law nor Executive Order 8 No. 183 barred release of the zip codes, and granted so much of the petition as requested such data. DCS appealed the Supreme Court's ruling.

The Appellate Division, noting that "FOIL generally requires government agencies to make available for public inspection and copying all records subject to a number of exemptions" and that the "exemptions set forth in the statute are interpreted narrowly in order to effect the purpose of the statutory scheme," then addressed DCS's refusal to disclose the zip codes of the employees requested by Plaintiff.

The Court said the DCS had satisfied its statutory obligation to fully explain its determination in the administrative appeal by stating that the "disclosure of name and zip code pairings would invade employee privacy to an unwarranted degree, citing statutes that protect personal identifying information of the public generally and state workers in particular."  The Appellate Division then observed that DCS's burden was to articulate a "particularized and specific justification" for its denial but this obligation "did not arise until [Plaintiff] commenced this CPLR Article 78 proceeding."

In its effort to meet this burden DCS cited two statutory exemptions: one prohibiting release of records protected by a state or federal statute, specifically the statute providing that FOIL does not require the disclosure of, among other things, home addresses of public employees and a second permitting agencies to "deny access to records or portions thereof that ... if disclosed would constitute an unwarranted invasion of personal privacy."

The court opined that in "our current, highly technological environment, using a zip code or other partial address information directly matched with an individual's name could readily facilitate access to that person's complete home address." Thus, said the Appellate Division, the "FOIL rule that we interpret exemptions from disclosure narrowly" does not require that courts disregard the "commonsense understanding of legislative intent." Conceding "the somewhat novel nature" of its determination - that a zip code is the functional equivalent of an address for FOIL purpose," the Appellate Division said that it found that exemption applicable in the instant situation.

In considering this alternate grounds -- whether disclosing a home zip code paired with an employee's name would constitute "an unwarranted invasion of personal privacy under the provisions of  Public Officers Law §89(2)]", the court explained that this privacy exception includes eight categories that are per se unwarranted invasions of privacy and then noted that unwarranted invasions of privacy "shall not be limited to" those listed (see Public Officers Law § 89[2] [b]).

In the absence of proof establishing the applicability of one of the specifically-enumerated categories, the Appellate Division said courts "evaluate whether disclosure would constitute an unwarranted invasion of personal privacy 'by balancing the privacy interests at stake against the public interest in disclosure of the information'."

On one side of the equation is the public interest in disclosure of government records while the other side of the equation is the interests of state employees in not having their home zip codes, along with their names and job information, released to members of the public.

Citing Massaro v New York State Thruway Authority, 111 AD3d at 1003, the court said "An unwarranted invasion of personal privacy has been characterized as that which would be offensive and objectionable to a reasonable person of ordinary sensibilities" Here DCS "particularly and specifically justified its denial" when it stated that the correlation of names and home zip codes invaded employee privacy, and offered to release a summary or de-identified employee zip codes upon receipt of a new FOIL request. Plaintiff, however, declined to accept this offer tendered by DCS.

Observing the personal privacy exemption "would have little meaning if [individuals or] entities could circumvent [it] by gaining access to only the names [of public employees] and then linking them to a home address, the Appellate Division concluded that the policy concerns underlying the personal privacy exemption are no less implicated under that scenario," noting that it had earlier affirmed a denial of disclosure where the requested "records, when combined with other readily available information, ... could identify or lead to the identification of" information protected under a FOIL exemption," rejecting "(e)ven the partial disclosure of an address" because it could be used, with other information," to identify an individual.

As to special protections for state employee records, the Appellate Division concluded that Legislature's enactment of Public Officers Law §89(7) indicates its desire to protect public employees from harassment at home and here the release of home zip codes "would constitute an unwarranted invasion of personal privacy under these circumstances."

Finding that DCS had met its burden of proving that the requested zip codes are exempt from disclosure under FOIL, the Appellate Division ruled that Supreme Court erred in ordering the disclosure of such data and reversed so much the lower court's order that required DCS to disclose the zip code data requested by Plaintiff.

* §40 of the New York State Civil Service Law provides that the Classified Service "shall comprise all offices and positions not included in the unclassified service. The offices and positions in the classified service of the state and of its civil divisions shall be divided into four classes, to be designated as the exempt class, the non-competitive class, the labor class, and the competitive class."

** See 9 NYCRR 8.183, Protecting the Personal Privacy of Public Sector Workers.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2021/2021_01113.htm.