Disclosing the unlisted telephone numbers called by public officials pursuant to a FOIL request

Disclosing the unlisted telephone numbers called by public officials pursuant to a FOIL request

Matter of Hawley v Village of Penn Yan, 35 A.D.3d 1270

This case arose when Robert Hawley submitted a Freedom of Information [FOIL] request to obtain a list of all of the telephone calls made and received by the Mayor of the Village of Penn Yan for a two-month period on a cellular telephone paid for the Village.

Responding to his request, the Village provided Hawley with the list of all of the mayor’s cell phone calls for the period requested but one. It did not provide that one telephone number because it was an “unlisted” number.

In the litigation that followed, the Appellate Division said that Supreme Court had “properly granted [Hawley’s] petition only in part, granting [Hawley] "the right to examine all requested telephone records, excluding unlisted wired and wireless numbers."

The general standard applied by the courts: "FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government."

The basic concept underlying FOIL -- all public documents are available to the public. However, an agency may, but is not required to, deny public access to documents if such records or documents fall within one or more of the "exemptions from disclosure" allowed under FOIL. Unless access or disclosure is otherwise specifically prohibited by law, the basic rule is that only those records that fall within the statutory exceptions may be withheld from the public if the custodian of such records, as a matter of exercising discretion, elects to do so.

In addition, a public body may exercise its discretion and apply the exemption to disclosure where disclosure “would constitute an unwarranted invasion of personal privacy" (Public Officers Law §87[b]).

According to the decision, the question to be resolved in the context of this appeal was "What constitutes an unwarranted invasion of personal privacy as measured by what would be offensive and objectionable to a reasonable [person] of ordinary sensibilities?”

The Appellate Division said that this determination requires “balancing the competing interests of public access and individual privacy." In the court’s view, a situation in which a person chooses to have an unlisted phone number suggests that disclosure of the number would, in that individual’s view, be unnecessarily intrusive or result in an unwarranted invasion of personal privacy, citing NY Dept. of State Commission on Open Government, Advisory Opinions 9197 and 8740.

The court decided that in this instance FOIL did not require the disclosure of the unlisted telephone numbers Hawley asked to have revealed.

Resignation from a position in the public service must be in writing

Resignation from a position in the public service must be in writing

Plainedge UFSD v Raymond, Decisions of the Commissioner of Education 14644

The Commissioner's ruling in the Plainedge case points out the critical importance of the written resignation.

Early in 2001 Plainedge Union Free School District board member Donald Risucci announced that he was resigning from his position effective June 30, 2001. The district decided to include Risucci's “soon to be vacant” seat on the ballot of its annual school election in order to save the school district the approximately $7,000 that a special election would cost.

Ralph Raymond won the election for Risucci's seat and asked to be seated immediately. He was told that “the seat would not become vacant until June 30, 2001, the effective date of Risucci's resignation.

The school attorney had advised the superintendent that “Risucci's resignation did not meet legal standards and was a nullity.” Apparently Risucci had not submitted his resignation in writing as required by Section 31(2) of the Public Officer Law. An oral resignation does not satisfy the requirements of Section 31(2). Raymond, therefore, could not take office because no vacancy existed. In other words, Risucci was still a member of the board because he did not submit a lawful resignation. Raymond appealed his being denied a seat on the board to the Commissioner of Education.*

The Commissioner agreed that Risucci's March 8, 2001 announcement of his intention to resign at a board meeting did not constitute a valid resignation from the board. As the Attorney General indicated in a formal opinion [1971 Opinions of the Attorney General 12], a member of a school board, whether elected or appointed, is a public officer. Thus his or her resignation is subject to the mandates of Section 31 of the Public Officers Law. The Commissioner's decision notes that Section 31(2) requires that:

Every resignation shall be in writing addressed to the officer or body to whom it is made. If no effective date is specified in such resignation, it shall take effect upon delivery to or filing with the proper officer or body. If an effective date is specified in such resignation, it shall take effect upon the date specified, provided however, that in no event shall the effective date of such resignation be more than thirty days subsequent to the date of its delivery or filing.

It should be noted that Section 31(2) specifically addresses the “more than thirty day” situation -- i.e., what is the effective date of the written resignation if it specifies it is to take effect more than thirty days after its delivery?

Section 31(2) provides, in pertinent part, that if the written resignation specifies an effective date that is more than thirty days subsequent to the date of its delivery or filing the resignation shall take effect thirty days from the date of its delivery or filing.

In other word, had Risucci simultaneously submitted his written resignation at the time he orally announced his intention to resign indicating that the effective date of the written resignation was to be June 30, 2001, his resignation would have taken effect thirty days after his written resignation was delivered notwithstanding the fact that its terms demonstrated that Risucci intended that it not take effect until June 30, 2001. 

* The requirement that resignations be in writing also applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service. 4 NYCRR 5.3, which applies to individuals subject to the Rules of the New York State Civil Service Commission, provides as follows: Resignation. (a) Resignation in writing. Except as otherwise provided herein, every resignation shall be in writing.

4 NYCRR 5.3 also provides that “If no effective date is specified in a resignation, it shall take effect upon delivery to or filing in the office of the appointing authority.” If an effective date is specified in a resignation, the Rule provides that it shall take effect on such specified date. However, if a resignation is submitted while the employee is on leave of absence without pay, such resignation, for the purpose of determining eligibility for reinstatement, shall be deemed to be effective as of the date of the commencement of such absence.”

Further, in the event an employee submits his or her resignation when charges of incompetency or misconduct have been or are about to be filed against the employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his or her termination shall be recorded as a dismissal rather than as a resignation.

Many local civil service commissions have adopted similar rules.

Eligibility for accidental disability retirement benefits as the result of an event that occurred while the individual was off-duty

Eligibility for accidental disability retirement benefits as the result of an event that occurred while the individual was  off-duty

DeBoer v Hynes, 287 AD2d 626

Gregory J. DeBoer was eligible for disability benefits resulting from work-related injuries pursuant to Section 207-c of the General Municipal Law. The question here: Are Section 207-c benefits available to an otherwise eligible individual if he or she is injured while off-duty?

DeBoer, was injured while attempting to make an off-duty arrest of individuals allegedly vandalizing his premises. He applied for Section 207-c disability benefits. Clearly, if he had suffered the injury while on duty, he would have been eligible for Section 207-c benefits.

Charles Hynes, the Kings County District Attorney, denied DeBoer's application for Section 207-c line-of-duty benefits because it resulted from DeBoer's actions while he was off-duty. The Appellate Division said that this was incorrect.

The court said that Hynes' Section 207-c decision should be annulled, “as the determination that the [DeBoer] did not sustain injuries in the performance of his duties was an improvident exercise of discretion.”

The court's conclusion: Under these circumstances, DeBoer was entitled to line-of-duty benefits pursuant to Section 207-c retroactive to February 21, 2000.

Representation by a layperson in an administrative disciplinary proceeding

Representation by a layperson in an administrative disciplinary proceeding

Sam v Metro-North Commuter Railroad, App. Div., 1st Dept., 287 AD2d 378

One of the issues in the Sam v Metro-North Commuter Railroad was Sam's contention that he was denied administrative due process because a non-attorney union official rather than an attorney served as his representative at a disciplinary hearing.*

Carlson Sam, an employee of Metro-North Commuter Railroad (Metro-North), was discharged from his employment for conduct unbecoming a Metro-North employee and failing to comply with a lawful order of a Metro-North police officer. The Special Board of Adjustment, which reviewed the disciplinary administrative tribunal's trial and determination, sustained Sam's being found guilty and the penalty imposed, dismissal.

The decision states that Sam was found guilty of leaving his assigned post and becoming involved in an altercation with a homeless man whom he though had stolen his car radio. The altercation, in which both plaintiff and the homeless man brandished weapons, spilled over into the terminal and into the track area of the station. Sam refused to obey the orders of Metro-North Police present during the incident, and Metro-North police officer Barreto had to physically removed the weapon from Sam's control and wrestle him to the ground and arrested him.

In reaching its decision, the Board noted multiple reasons justifying Sam's termination, including the fact that he left his assigned post, engaged in a violent altercation, refused a police officer's lawful order to lay down his weapon, and engaged in conduct requiring his forcible arrest. As to the penalty of dismissal, the Board found that termination was warranted since Sam, who only had three years of seniority, had already been disciplined several times previously.

Sam then sued Barreto and Metro-North asserting claims of assault, false arrest, false imprisonment, malicious prosecution, defamation, as well a claim that his 42 USC 1983 civil rights were violated.

As to Sam’s assertions concerning the lack of counsel, the Appellate Division agreed that he was not represented by an attorney at his administrative trial. However, said the court, “here the absence of counsel is not determinative since [Sam] was represented by a union official whose competence and experience were amply demonstrated by the trial record.”

The union representative “thoroughly questioned the various witnesses, raised appropriate objections, and requested a continuance to present additional witnesses, a request that was granted.” This, in the view of the court, provided Sam with appropriate representation for the purposes of satisfying administrative due process in a disciplinary setting.

* Section 75.2 of the Civil Service Law provides that an individual against whom disciplinary charges have been preferred may be represented by an attorney or by a representative of a recognized or certified collective bargaining organization.

Independent contractors and Title VII

Independent contractors and Title VII

Holtzman v The World Book Company Inc., USDC, EDPa.

It is not uncommon for a public employer to engage the services of an “independent contractor” to perform certain tasks.

In deciding the Title VII complaint filed Arlene Holtzman, a former employee of the World Book Company, Senior U.S. District Court Judge Lowell A. Reed Jr. ruled that Title VII protects workers who are “employees,” but does not apply to independent contractors.

According to the decision, Holtzman's position was “outsourced” by World Book and she became an “independent contractor” although she performed essentially the same duties she had performed as a World Book employee. This change in status, said Judge Reed, meant that Title VII no longer was applicable as Title VII only covers applicants for employment and employees.*

The court noted that in 1995 World Book reorganize its sales operations. As a result, it negotiated contracts with individuals designated “regional directors.” When Holtzman was told of the new arrangement, she approached Rosemarie Lee, a former World Book branch manager. Lee had formed her own corporation, Leer Services. Leer's sales force included a number of former World Book sales representatives. Holtzman signed a contract with Leer Services.

Was Holtzman an employee, and if so, whose employee? Judge Reed said that the U.S. Supreme Court set out a number of factors to be considered in determining whether or not an individual is an employee or an independent contractor in Nationwide Mutual Insurance Company v Darden, 503 US 318.

The Supreme Court's “common law test” for determining who qualifies as an “employee” in Darden lists the following factors to be considered in making the determination:

1. The hiring party's right to control the manner and means by which the work is accomplished.

2. The skill required;

3. The source of the supplies and tools used by the individual;

4. The location of the work;

5. The duration of the relationship between the parties;

6. Whether the hiring party has the right to assign additional duties or projects to the hired party;

7. The extent of the hired party's discretion over when and how long to work;

8. The method of payment;

9. The hired party's role in hiring and paying assistants;

10. Whether the work is part of the regular business of the hiring party;

11. Whether the hired party is in business;

12. Whether the hiring party provides employee benefits; and

13. The tax treatment of the hired party.”

Applying the Darden factors to Arlene Holtzman's position selling World Book's educational products, Reed found that her status had clearly changed in 1995 from employee to independent contractor and thus she was not able to maintain her Title VII action.

* Title VII defines the term “employee” as “an individual employed by an employer ....”