Diversity Management

Diversity Management

The New York State Department of Civil Service has issued General Information Bulletin (GIB) GIB 18-01, Use of the Diversity Management Option for the Professional Career Opportunities (PCO) Exam.

Text of General Information Bulletin 18-01 will be found at:

https://www.cs.ny.gov/ssd/Manuals/SPMM/GIBS/GIB18-01.cfm

If you wish to print General Information Bulletin 18-01, we offer a version in pdf format at:

https://www.cs.ny.gov/ssd/pdf/GIB18-01.pdf

An agency may decline to acknowledge that requested records exist in response to a Freedom of Information Law request

An agency may decline to acknowledge that requested records exist in response to a Freedom of Information Law request

Abdur-Rashid v NYC Police Department, 2018 NY Slip Op 02206, Court of Appeals

Hashmi v NYC Police Department, 2018 NY Slip Op 02206, Court of Appeals

The Chief Judge of the Court of Appeals described the issue presented in this appeal as follows: "May a public entity decline to acknowledge that requested records exist in response to a Freedom of Information Law request,  Public Officers Law §84 et seq. [FOIL], when necessary to safeguard statutorily exempted information."

A majority of the court held that the public entity may, affirming the Appellate Division's determination.

The court was split, in whole or in part, in this important decision, with the opinion by Chief Judge DiFiore in which. Judges Fahey, Garcia and Feinman concur while Judge Wilson dissented in part in an opinion and Judge Stein dissented in an opinion in which Judge Rivera concurs, the full text of decision, including Judge Wilson's and Judge Stein's opinions, are posted on the Internet.

Click on the following URL to access the decision:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02206.htm

The anatomy of an administrative disciplinary decision

The anatomy of an administrative disciplinary decision

Marentette v City of Canandaigua,, 2018 NY Slip Op 01764, Appellate Division, Fourth Department

The §75 disciplinary Hearing Officer found the Fire Chief [Chief] of the City of Canandaigua guilty acts of misconduct, having committed acts of insubordination by repeatedly violated the directive of his superior, making unauthorized entries on his subordinates' time sheets, and acts of incompetence by authorizing the expenditure of public funds on several occasions in violation of the City's procurement policies.

The Hearing Officer recommended that the Chief be demoted. The appointing authority determined that termination was warranted given the gravity of the misconduct, the Chiefs "disciplinary record," earlier "unsuccessful attempts at remediation," and the loss of trust in the Chief.

In response to the Chief's appeal of the decision of the appointing authority, the Appellate Division, sustained the actions of the disciplinary action Hearing Officer and the appointing authority and:

1. Rejected the Chief's argument that preponderance of the evidence is the applicable evidentiary standard in this case explaining that "It is well established that substantial evidence is generally the applicable evidentiary standard for disciplinary matters involving public employees under Civil Service Law §75, and that due process requires application of the preponderance of the evidence standard only "when the penalty of dismissal is accompanied by some added stigma." Here, said the court, there was nothing in the record suggesting that stigma has resulted from the Chief's termination in that he has not been "[effectively] prohibited from obtaining future . . . employment [as a firefighter or an officer of a fire department], or that he is subjected to a public registry of any sort";

2. Ruled that the determination that the Chief committed acts of insubordination and incompetence was supported by substantial evidence; i.e., by "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.";

3. Said that the Chief's exculpatory explanations for his conduct raised an issue of credibility that the Hearing Officer was entitled to resolve against him.;

4. Was unpersuaded by the Chief's contention that the termination of his employment was unjustified under the circumstances, indicating that the court's review of the penalty imposed by the appointing authority "is extremely limited" does not include "any discretionary authority or interest of justice jurisdiction in reviewing the penalty imposed."; and

5. Citing Kelly v Safir, 96 NY2d 32, [rearg denied 96 NY2d 854], concluded that the penalty of termination was "not so disproportionate to the offense[s] as to be shocking to one's sense of fairness"  and thus "did not constitute an abuse of discretion as a matter of law ... particularly in light of [the Chief's] conduct underlying the charges and his history of disciplinary infractions during his tenure as Fire Chief."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_01764.htm