Freedom of information and speech

Freedom of information and speech
Informal Opinions of the Attorney General: 2000-2

The basic principle underlying New York State’s Freedom of Information Law [FOIL] is that all public documents are subject to disclosure upon request unless such disclosure is specifically prohibited by law.

For example, the State’s Public Health Law, Mental Hygiene Law and Education Law prohibit the disclosure of certain documents or information to the public without specific authorization by a court.

FOIL, however, also lists a number of exemptions that authorizes, but does not require, the custodian of the document to withhold particular information or documents if, as a matter of discretion, it elects to do so. Similarly, the State’s Open Meetings Law requires that the public be allowed to attend all meetings held by a public entity, although the public may be excluded from executive sessions held by the entity.

Executive sessions may be held for limited purposes, however. These include sessions in which the body will discuss items that would imperil public safety if disclosed; result in the identification of law enforcement personnel or police informants; concern matters involving criminal investigations; discussions concerning pending legislation or Taylor Law negotiations; personnel matters involving a particular individual; certain economic issues and matters concerning examinations and tests.

Although discussions of matters considered in executive session may be withheld even if they are recorded, both FOIL and the Open Meetings Law require that any formal vote taken during an executive session be made a public record subject to FOIL together with a record of how each member of the body voted.

May a local legislative body adopt a resolution prohibiting a member of that body from disclosing matters discussed in an executive session held by that body? This was the question presented to the Attorney General by Gregory J. Amoroso, the City of Rome’s corporation counsel.

In response, the Attorney General noted the parallels between the exceptions allowed under FOIL and the purposes for which a public body may go into an executive session from which the public is barred. His conclusion:

A governing body of a municipality may withhold any records of discussions properly taking place during an executive session and, further, it may prohibit its members from revealing the content of such discussions to the public.

However, cautioned the Attorney General, while the decision to go into executive session is a matter of properly exercising discretion and nothing in either FOIL or the Open Meetings Law prohibits the barring of the disclosure the nature of the discussions conducted in executive session by a participant, all such prohibitions are subject to federal and state freedom of speech requirements.

The clear implication here: neither FOIL nor the Open Meetings Law will serve as a shield in the event a court determines that a limitation placed on revealing matters considered in executive session violates the individual’s constitutional right to free speech. Courts have typically found that limitations placed on a public officer or employee with respect to his or her disclosing matters of public interest violates the individual’s right of free speech.

In contrast, prohibiting an individual from publicly discussing subjects or governmental decisions or actions involving matters of a personal interest rather than a public interest does not violate the individual’s constitutionally protected right of free speech. As the U.S. Supreme Court indicated in Connick v Myers, 461 US 138, constitutional free speech rights are not implicated when only matters of a personal interest to the individual, in contrast to matters of public concern, are involved.
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Vacating or modifying an arbitrator’s award

Vacating or modifying an arbitrator’s award
Matter of Westchester County Correction Officers Benevolent Assn., Inc. v County of Westchester, 2011 NY Slip Op 01482, Appellate Division, Second Department

Article 75 of the Civil Practice Rules provides that an arbitration award may be vacated by the courts upon a finding of:

a. Corruption, fraud or misconduct in obtaining the award; or

b. Partiality of the arbitrator, unless the award was by "confession;" or

c. The arbitrator exceed his or her authority or so imperfectly executed his or her power that no award as to the subject matter submitted was made; or

d. There was a failure to follow the procedures set out in Article 75.

An arbitrator's award may be modified only if there was a miscalculation of numbers or a mistake in the description of a person or thing; an award was made regarding some matter not submitted to the arbitrator for arbitration; or the award was "imperfect as to form" but not involving the merits of the controversy.

The Westchester case involved a proceeding pursuant to CPLR article 75 to vacate an arbitration award. The Appellate Division set out the following guidelines with respect to judicial review of an arbitration award:

1. Judicial review of arbitration awards is extremely limited.

2. An arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached.

3. An arbitrator's award should not be vacated for errors of law and fact committed by the arbitrator.

4. Courts should not assume the role of overseers to mold the award to conform to their sense of justice.

In this instance the court held that party seeking to vacate the arbitrator’s award “failed to meet its burden of proving by clear and convincing evidence that the arbitrator committed misconduct, and that such misconduct prejudiced its rights or the integrity of the arbitration process.”

Further, said the Appellate Division, an arbitrator exceeds his or her power within the meaning of CPLR §7511(b)(1)(iii) "only where the arbitrator's award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01482.htm
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Administrative law judge denies employee’s attempt to convert a disciplinary hearing into a “disability proceeding”

Administrative law judge denies employee’s attempt to convert a disciplinary hearing into a “disability proceeding”
NYC Human Resources Administration v Krisilas, OATH Index #931/11

A clerical associate was charged with sleeping on duty, absence without leave, excessive lateness, and discourtesy to a supervisor. The employee’s attorney moved to dismiss the disciplinary charges and convert the matter to a disability proceeding, claiming his client suffered from a disability.

OATH Administrative Law Judge Ingrid Addison denied the motion, ruling that an employer's duty to accommodate an employee's disability is triggered by the employee's request for accommodation and is limited to disabilities known by the employer.

Here, said Judge Addison, the employee never told the agency he suffered from a disability for which he needed accommodation. Nor, said the judge, did the evidence establish that the employee's misconduct was caused by a disability.

The ALJ held that the disciplinary charges were proven in the course of the disciplinary hearing and recommended that the individual be terminated from his position.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-931.pdf
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State Labor Department has proposed to incorporate by reference updates to OSHA standards into the State’s Public Employee OSHA regulations

State Labor Department has proposed to incorporate by reference updates to OSHA standards into the State’s Public Employee OSHA regulations
Source: New York State Register, March 2, 2011

On March 2, 2011 the State Register published a notice that the State Labor Department has proposed to incorporate by reference updates to OSHA standards into the State Public Employee Occupational Safety and Health Standards by amending its regulations. [See 12 NYCRR §800.3.]

The Department states that the amendment is necessary because Section 27-a(4)(a) of the Labor Law directs the Commissioner to adopt by rule, for the protection of the safety and health of public employees, all safety and health standards promulgated under the U.S. Occupational Safety and Health Act of 1970, and to promulgate and repeal such rules and regulations as may be necessary to conform to the standards established pursuant to that Act. This, says the Department, insures that public employees will be afforded the same safeguards in their workplaces as are granted to employees in the private sector.

The text of proposed rule and any required statements and analyses may be obtained from Michael Paglialonga, New York State Department of Labor, State Office Campus, Building 12, Room 509, Albany, NY 12240, (518) 457-1938, email: michael.paglialonga@labor.ny.gov

Data, views or arguments may be submitted to Mr. Paglialonga.

Public comment will be received until 45 days after publication of this notice.
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Settling a disciplinary action by agreeing to disciplinary probation

Settling a disciplinary action by agreeing to disciplinary probation
Matter of Campbell v State of New York, 37 AD3d 993

The New York State Office of Mental Health [OMH] filed disciplinary charges against Monica A. Campbell. Instead of proceeding with a disciplinary hearing, Campbell and her union, New York State Correctional Officers and Police Benevolent Association [PBA] “settled” the matter by agreeing to have Campbell serve a “one-year disciplinary probationary period.”

The settlement agreement provided that:

Should Ms. Campbell commit any actions or omissions during this one-year period “which rise to the level of misconduct and/or incompetence” she will be terminated from [s]tate service without recourse to Article 8 [of the collective bargaining agreement].

The disciplinary grievance procedure set out in Article 8 provided for arbitration as the final step in a disciplinary action.

Ultimately OMH determined that Campbell was guilty misconduct while in “disciplinary probationary status” and terminated her employment. PBA appealed her termination and demanded arbitration. OMH refused to submit its decision to terminate Campbell to arbitration, contending that arbitration was not available under the terms of the disciplinary settlement agreement. PBA filed a petition pursuant to CPLR Section 7503 seeking a court order compelling arbitration.

Supreme Court found that the disciplinary settlement agreement did not exclude arbitration of the question of whether Campbell was guilty of misconduct and ordered arbitration. OMH appealed.

As the Appellate Division’s decision notes, it is well settled that a right to arbitration, like contract rights generally, may be waived or abandoned. The issue here, said the court, was whether the disciplinary settlement agreement entered into by the parties constituted a waiver of PBA’s right to submit Campbell’s dismissal to arbitration.

According to the record, the settlement agreement initially made Campbell a probationary employee for one year. This language, however, was amended at the request of PBA’s attorney and the phrase “disciplinary evaluation period” [DEP] was substituted in its place in order to “avoid impairment of Campbell's seniority and layoff rights.”

Noting that paragraph 9 of the PBA’s petition seeking to compel arbitration itself confirm that the parties understood that the DEP would be a probationary period, the Appellate Division said that “This clear meaning and understanding of the parties is in complete harmony with the meaning and use of DEPs in similar reported cases,” citing Matter of Miller v Coughlin, 59 NY2d 490, 493; and Matter of McGough v State of New York, 243 AD2d 983, 983-984 [1997], lv denied 91 NY2d 807, among others.

The court said the disciplinary settlement agreement specified the party that would determine whether there was subsequent misconduct by Campbell, – i.e., OMH. Accordingly, said the Appellate Division, Campbell’s sole remedy was to challenge OMH’s determination that resulted in her termination pursuant to CPLR Article 78.

The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/disciplinary-probation.html

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