New York State Comptroller Thomas P. DiNapoli Looks Back at 2023.

Encouraged by positive developments, including a drop in unemployment and the continuing strength of its State Pension Funds, the Comptroller posted his "2023 Year in Review" on the Internet.

To access the Comptroller report click READ HERE.

 

Gender and ethnicity information of candidates failing civil service examinations held exempt from disclosure pursuant to New York State's Freedom of Information Law

The New York State Department of Civil Service [DCS] denied a Freedom of Information request submitted by the New York State Public Employees Federation, AFL-CIO [PEF] seeking the names of candidates for 12 specific civil service examinations "by ethnicity and gender," of all approved, disapproved, failed, and passed applicants for such examinations.

Rejecting PEF's request, the DCS's records access officer advised PEF that records for disapproved and failed candidates were withheld pursuant to Public Officers Law §87(2)(b) as disclosure would constitute an unwarranted invasion of personal privacy and, further, information with respect to failed candidates on a civil service examination was barred by 4 NYCRR 71.3.

PEF filed an administrative appeal, arguing that the information requested was "solely summary data regarding the applicant pool as a whole, rather than personal information," and, therefore, disclosure would not constitute an unwarranted invasion of privacy. DCS's FOIL appeals officer disagreed, and issued a final determination holding that the denial of the requested records was proper. The appeals officer reasoned that "by combining these sources of readily available information, it would be simple to compare a list of employees in the relevant promotion field job titles with the names on the eligible lists," which could lead to revealing the identities of "failed candidates". PEF then initiated a CPLR Article 78 action challenging the DSC's appeals officer's decision.

Supreme Court dismissed PEF's Article 78 petition, finding that considering the information PEF already had access to, were it provided the gender and ethnicity information of individuals who failed certain examinations, PEF would be able to "greatly narrow" and ultimately identify such candidates in contravention of 4 NYCRR 71.3.

In response to PEF's appealing the Supreme Court's ruling, the Appellate Division affirmed the lower court's decision.

Citing Matter of Broach & Stulberg, LLP v New York State Dept. of Labor, 195 AD3d 1133,, lv denied, 37 NY3d 914, the Appellate Division explained that FOIL requires that an agency, "in accordance with its published rules, make available for public inspection and copying all records, except those records or portions thereof that" are statutorily exempt from disclosure,* which include materials that, "if disclosed would constitute an unwarranted invasion of personal privacy" and thus allows an agency to withhold "records otherwise available ... to prevent unwarranted invasions of personal privacy." In the words of the court, "[a]n unwarranted invasion of personal privacy has been characterized as that which would be offensive and objectionable to a reasonable person of ordinary sensibilities".

DCS's rules** prohibit disclosing "any information" relating to candidates who failed certain examinations. In the words of the Appellate Division, "[i]ndeed, such disclosure would result in an unwarranted invasion of personal privacy, as a reasonable person of ordinary sensibilities would find the disclosure of their name tied to a failed civil service examination to be offensive and objectionable.

Noting that Supreme Court engaged in a sufficient evaluation, "balancing the privacy interests at stake against the public interest in disclosure of the information", the Appellate Division opined DCS met its burden of proving that  "gender and ethnicity information of candidates who failed certain civil service examinations was exempt from disclosure under FOIL, Supreme Court properly dismissed the [PEF] petition".

* See Public Officers Law §87[2]. N.B. The release of some public records may be limited by a specific statute such as Education Law §1127 - Confidentiality of records and §33.13 of the Mental Hygiene Law - Confidentiality of clinical records.

** See 4 NYCRR 71.3.

Click HERE to access the Appellate Division's decision posted on the Internet.

 

Former Town of Throop supervisor pleads guilty to stealing $11,000 from the town

A former Town of Throop Supervisor was arrested and pleaded guilty to stealing nearly $11,000 from the town over a two-year period.

On January 11, 2024, State Comptroller Thomas P. DiNapoli, Attorney General Letitia James and the New York State Police announced that former Town of Throop Supervisor William Tarby pleaded guilty to Grand Larceny in the Fourth Degree and Official Misconduct. As part of his plea agreement, Tarby will pay full restitution and cannot seek public office again.

“William Tarby exploited his position with the town to pay off personal debts and make home improvements,” DiNapoli said. “Thanks to the work of my office, his crimes were uncovered, and he is being held accountable. I’d like to thank Attorney General James and the New York State Police for their work in partnering with us to bring him to justice.”

“Elected officials who use their authority to enrich themselves are not only violating the law, they’re violating the basic trust that New Yorkers put in them,” James said. “William Tarby stole from the people he was elected to serve, and today we are making him pay. I want to thank Comptroller DiNapoli and our partners in law enforcement for their diligent work to hold Mr. Tarby accountable.”

“Mr. Tarby violated the public trust by disregarding the law and stealing from town funds,” New York State Police Acting Superintendent Dominick L. Chiumento said, “The prosecution of this individual sends a strong message that we will not tolerate such corruption when a public servant seeks to use their position to profit at the expense of taxpayers and the local community. I thank the State Comptroller’s Office and the Attorney General’s Office for their partnership in this investigation.”

Tarby, 58, was the town supervisor of Throop from 2004 through 2019. In 2020, DiNapoli’s office commenced an audit of the town which found financial irregularities. A subsequent investigation found that from January 2017 to December 2019, Tarby pocketed $11,000 from the town. 

Investigators determined Tarby made unauthorized cash withdrawals from town bank accounts, took cash back on checks made out to the town, and kept for himself cash paid to the town for scrap metal, fines and the sale of equipment, among other things.

As supervisor, Tarby controlled all aspects of the town’s finances and therefore was able to conceal his theft from the town board. He was the only town employee with access to certain of the town’s various accounts and was the only town employee who made cash withdrawals from those accounts.

Tarby pleaded guilty in Cayuga County Court before Judge Thomas G. Leone. Sentencing was scheduled for April 18.

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Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at https://www.osc.state.ny.us/investigations, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.