Claiming the public-interest privilege in an effort to prevent the disclosure of communications between public officials alleged to be confidential

In this appeal, the Appellate Division considered the so-called "public-interest privilege," a common-law rule that "attaches to confidential communications between public officers, and to public officers, in the performance of their duties."

The rule may be applied where it can be shown that the public interest requires that such confidential communications or its sources should not be divulged because "the public interest would be harmed if the material were to lose its cloak of confidentiality".

The genesis of this action was a New York City Charter §93(b) investigation of the City of New York's preparation for, planning for, and response to the COVID-19 pandemic initiated by New York City's Comptroller. The Comptroller sought to identify how those actions impacted the City, its finances, residents and businesses. In connection with the investigation, the Comptroller issued a "request for information" to the City seeking information and communications related to the COVID-19 pandemic. When the City did not fully comply with the request for information, the Comptroller served a subpoena seeking the City's production of certain documents received, created or issued by the City. Additionally, over the course of the investigation, the Comptroller issued subpoenas seeking the testimony of certain City officials concerning the pandemic. 

Ultimately the matter was considered in the course of a special proceeding in which the City filed an answer and cross petition seeking a court order "dismissing the special proceeding and quashing, modifying or fixing conditions on the City's compliance with the subpoena."

Citing Matter of World Trade Ctr. Bombing Litig., 93 NY2d 1, the Appellate Division said that the governmental body asserting the public-interest privilege must offer specific support as to the potential harm to the public from disclosure of the information and, in the rare case, that this may require an in camera* examinations of the communications involved. Further, said the court, the privilege will be applied in the event the entity objecting to disclosing the information demonstrates that the public interest in confidentiality outweighs the public interest in disclosure.

The Appellate Division concluded that, based on the affidavits presented in the course of the special proceeding, in this particular situation the interest in protecting the City's pre-decisional and deliberative communications is stronger than the interest in allowing the Comptroller "to review, and possibly publish, the communications as part of his investigation."

In the words of the Appellate Division: "Given the ongoing threat of the pandemic, the Mayor and his leadership team needed access to information and unvarnished advice from all sources. This required that the sources have some assurance that their advice would remain confidential and free from fear of reprisal. The public disclosure of the requested documents involving confidential, deliberative communications among an inner circle of decision-makers concerning an emergency response to a pandemic could chill future deliberations about pressing matters, potentially to the public's harm."

Noting that Supreme Court did not make a ruling whether a privilege log or in camera review is necessary in this instance because the only issue litigated was the applicability of the privilege, the Appellate Division ruled that the Comptroller's request for a privilege log and in camera review of the documents over which the City claims privilege should be made to Supreme Court.

Click HERE to access the full text of the Appellate Division's ruling.

A collective bargaining agreement's silence with respect to a claim for certain benefits defeats a claim for such benefits pursuant to such collective bargaining agreement

The plaintiffs in three appeals from Supreme Court rulings decided on the same day by the Appellate Division, Caldara v County of Westchester, 2021 NY Slip Op 04693, [Caldara], Westchester County Corr. Officers Benevolent Assn., Inc. v County of Westchester, 2021 NY Slip Op 04733, [04733] and Westchester County Corr. Officers Benevolent Assn., Inc. v County of Westchester, 2021 NY Slip Op 04734 [04734], commenced their respective actions seeking to recover damages for the Westchester County's alleged breach of a collective bargaining agreement [CBA] based on Westchester's failure to pay certain benefits to the plaintiffs.

In Caldara the plaintiffs allege that any police officer who has been receiving disability benefits pursuant to General Municipal Law §207-c and who then receives a disability retirement pension upon the County of Westchester's application is entitled, upon retirement, to benefits equivalent to those provided by the Workers' Compensation Law for loss of earning capacity due to permanent partial or total disability.

Similarly, in 04733, theplaintiffs alleged that any correction officer who has been receiving disability benefits pursuant to General Municipal Law §207-c and who then receives a disability retirement pension upon the County of Westchester's application is entitled, upon retirement, to benefits equivalent to those provided by the Workers' Compensation Law for loss of earning capacity due to permanent partial disability while in 04074 plaintiffs argued that any correction officer who has been receiving disability benefits pursuant to General Municipal Law §207-c and who then receives a disability retirement pension upon the County of Westchester's application is entitled, upon retirement, to benefits equivalent to those provided by the Workers' Compensation Law for loss of earning capacity due to permanent total or partial disability.

In each action Westchester Countyrelied on its argument that the relevant collective bargaining agreement was silent as to such awards, and, as such, the relevant plaintiffs were not entitled, upon retirement, to benefits equivalent to those provided by the Workers' Compensation Law for loss of earning capacity due to permanent partial or total disability. In each action Westchester Countymoved to dismiss the complaints, and those plaintiffs' cross-moved pursuant to CPLR 3025(b) for leave to amend their complaint. The Supreme Court granted the County's motions and denied the plaintiffs' cross motions, and the respective plaintiffs appealed.

The Appellate Division, affirming the lower court ruling in each action, said that "When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action," citing Sokol v Leader, 74 AD3d 1180. Further, said the court, "In considering such a motion, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory", noting the Court of Appeals ruling in Leon v Martinez, 84 NY2d 83.

Here, opined the Appellate Division, the relevant plaintiffs failed to identify a specific provision in the relevant CBA that requires the Westchesterto pay benefits equivalent to those provided by the Workers' Compensation Law for loss of earning capacity due to permanent partial or total disability. Accordingly, the court held that Supreme Court properly granted Westchester's motion to dismiss the complaint.

Click the text in blue to access the text of that Appellate Division decision in  Caldara.

Click in blueto access the text of that Appellate Division decision in 07433.

Click on blueto access the text of the Appellate Divisions decision in 07434.

 

Involuntary placement on disability leave pursuant to Civil Service Law §72

In a proceeding brought pursuant to §72.5 of the Civil Service Law, OATH of Administrative Law Judge Ingrid M. Addison recommended that the New York City Police Department [NYPD] place a Traffic Enforcement Agent [TEA] on an involuntary leave of absence, finding the TEA was unfit to perform her job duties due to a medical disability not incurred in the performance of the duties of her position.

The TEA did not dispute the fact that she could not stand or walk for long periods, conceding that effects of an earlier surgery prevented her from performing the duties required of a TEA.

Although the TEA had been temporarily assigned to a clerical job as a reasonable accommodation, the NYPD determined that she was unfit to perform the duties of a TEA. Judge Addison agreed, finding that the NYPD proved the employee was currently unfit to perform the essential duties a TEA due to her disability and recommended the TEA be placed on involuntary leave consistent with the provisions of Civil Service Law §72.5.

The appointing authority of the NYPD adopted the ALJ’s recommendation subject to the approval of NYPD’s pending application for a change in title of the TEA's position to Clerical Associate, presumably as the result of the reclassification of the TEA position then encumbered by the employee to "Clerical Associate."

On a similar note, General Municipal Law §207-c, providing for the payment of salary, wages, medical and hospital expenses of police officers disabled as the result of injuries or illness incurred in the performance of duty, authorizes appropriate municipal officials to transfer a police officer on disability leave pursuant §207-c to another position, including a position with another agency or department where he is able to perform the duties of such position consistent with [1] the applicable civil service law requirements, [2] provided the police officer consents to the change and [3] the agency to which the employee will transfer approves the transfer.

General Municipal Law §207-a, applicable to firefighters on disability leave as the result of suffering an injury or illness incurred in performance of official duties, similarly authorizes the appointment of the disabled firefighter to another position or title in the same or another agency with the consent of the injured firefighter and the approval of the department or agency involved.

Click HERE to access Judge Addison's decision and recommendation.