Employee’s objection to the introduction of a “911 recording” in a disciplinary hearing rejected

Employee’s objection to the introduction of a “911 recording” in a disciplinary hearing rejected
Matter of Dockery v New York City Hous. Auth., 51 AD3d 575

The Appellate Division held that the Housing Authorit’s termination of its employee based on evidence contained on a “911 recordings.”

The court explained that “911 recordings were properly admitted into evidence at the [administrative] disciplinary hearing since they were not official records relating to [the employee’s] arrest or prosecution, and thus were not subject to the sealing statute (CPL 160.50; see Matter of Harper v Angiolillo, 89 NY2d 761, 767 [1997].”

Under the circumstances, the Appellate Division ruled that “The penalty of dismissal does not shock the conscience,” citing Kelly v Safir, 96 NY2d 32.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2008/2008_04753.htm

The Open Meetings Law requires the public body to indicate the particular reasons for its going into an executive session

The Open Meetings Law requires the public body to indicate the particular reasons for its going into an executive session

Zehner v Board of Educ. of Jordan-Elbridge Cent. School Dist., 2012 NY Slip Op 00623, Appellate Division, Fourth Department

David Zehner alleged that the Jordan-Elbridge Central School District had engaged in a pattern of violating New York's Open Meetings Law (Public Officers Law §100 et seq.) with respect to its going into executive session. Supreme Court agreed.

Affirming the lower court’s ruling, the Appellate Division said that the Open Meetings Law [OML] provides that "Every meeting of a public body shall be open to the general public, except that an executive session of such body may be called and business transacted thereat in accordance with [Section 105]" Here, said the court, the school district had violated the OML on three occasions.

Although the OML does allow a public body to go into executive session, the Appellate Division noted that “the topics that may be discussed [in such an executive session] are circumscribed by statute and include matters involving public safety, proposed, pending or current litigation, collective bargaining, and matters concerning the appointment or employment status of a particular person.”

The problem underlying this action was that the school district “merely reciting statutory categories for going into executive session without setting forth more precise reasons for doing so.”  Citing Daily Gazette Co. v Town Bd., Town of Cobleskill, 111 Misc 2d 303, the Appellate Division explained that §105 is to be “strictly construed,” and the real purpose of an executive session will be carefully scrutinized "lest the … mandate [of the Open Meetings Law] be thwarted by thinly veiled references to the areas delineated thereunder."

Noting that the Open Meetings Law provides that "costs and reasonable attorney fees may be awarded by the court, in its discretion, to the successful party,” the Appellate Division said that it did not perceive any abuse by the Supreme Court, in it's exercise of its discretion, awarding attorney fees to Zehner.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00623.htm

New York City required to pay the 3% employees’ contribution for retirement on behalf its Tier III police officers and firefighters

New York City required to pay the 3% employees’ contribution for retirement on behalf its Tier III police officers and firefighters

Lynch v City of New York, Supreme Court, New York County, Justice Carol Edmead, Index 650822 [Not selected for publication in the Official Reports]

New York City currently pays “one half of the rate” of employee contributions for retirement that it had earlier assumed* on behalf of its Tier I and Tier II members of the New York City Police Pension Fund and the New York City Fire Department Pension Fund. The City had assumed making such contributions in order to provide such individuals with “increased take-home pay.”

The City, however, discontinued making “employee contributions” on behalf of police and fire personnel enrolled as Tier III members of those retirement systems effective July 1, 2009. Such enrollees were otherwise required to pay 3% of their annual compensation as an employee contribution for 25 years.

Justice Edmead ruled that the City of New York violated §480(b)(i) and (ii) of the Retirement and Social Security Law when it commenced to require New York City police officers and firefighters initially appointed on or after July 1, 2009 to pay the full employee contributions otherwise required to the New York City Police Pension Fund and to the New York City Fire Department Pension Fund, as the case may be, upon their enrollment as Tier III members of their respective retirement systems.

The court rejected the City’s claim that such police officers and firefighters were required to pay the statutorily required 3% of their annual compensation as their "employee contribution" toward retirement “for 25 years,” explaining that when the relevant provisions of law were initially enacted there was no expectation that eventually a Tier III [and additional Tiers] might be established by these Retirement Systems.

Finding that RSSL §480(b) is applicable to police officers and firefighters who are in Tier III, Justice granted the Patrolmen’s Benevolent Association of the City of New York, the Captain’s Endowment Association of the City of New York and the Uniformed Fire Officers Association motion for summary judgment.

* See RSSL §480(b)(i)

A copy of Justice Edmead’s decision is available from NYPPL. Send your request by e-mail to publications@nycap.rr.com .