No claim for back pay upon reinstatement

No claim for back pay upon reinstatement

Koppman v. Board of Education, 95 A.D.2d 777

If a probationary employee reinstated to his or her former position was not removed from the  position unlawfully “neither the Constitution nor New York State Law recognizes the right of a reinstated probationer to an award of back pay”.

This, in a nutshell was the conclusion of the Appellate Divisions in the Koppman case.

The court’s rationale: “In the absence of a statute requiring the payment of back pay, the public employer is not required to pay back wages as the payment of such compensation without the performance of service would constitute an unconstitutional gift of public funds (Article 8, Section 1, of the State Constitution).”

Town may terminate health insurance coverage for Medicare-eligible retirees

Town may terminate health insurance coverage for Medicare-eligible retirees

Op St Comp 80-105

The State Comptroller has issued an opinion indicating that a town may terminate the health insurance coverage of a retired town employee when the retiree becomes qualified for Medicare coverage benefits.

It appears that the view of the Comptroller is limited to local governments which are not participating in the State’s Employees’ Health Insurance Programs [NYSHIP]. 

Insofar as public employers participating in NYSHIP are concerned, Section 167-a of the Civil Service Law controls with respect to health insurance coverage available to NYSHIP retirees upon their becoming Medicare-eligible. 

With respect to public employers that do not participate in NYSHIP there may be provisions in a collective bargaining agreement that would control the health insurance participation of an entity's retirees upon their becoming Medicare-eligible.

Public official must claim his or her qualified immunity as a defense when sued in federal court

Public official must claim his or her qualified immunity as a defense when sued in federal court

Gomez v. Toledo, 64 L Ed 2d 548

The United States Supreme Court has ruled that a public official sued under 42 USC 1983 (The Civil Rights Act) must claim that the acts alleged to be discriminatory were performed in good faith if he or she seeks qualified immunity as a defense.

Duplicative FOIL requests

Duplicative FOIL requests
Badalamenti v Office of Dist. Attorney Nassau County, 2011 NY Slip Op 08588, Appellate Division, Second Department

The Nassau County District Attorney's Office rejected the FOIL request submitted by Anthony Badalamenti seeking the disclosure of certain telephone numbers and recordings of certain telephone calls.

In the proceeding before Supreme Court the District Attorney's Office had established that it had earlier provided Badalamenti with the information or records he sought pursuant to an earlier FOIL request or hat it did not have the records he demanded in its possession.

The Appellate Division held that FOIL does not require the custodian of the public records demanded, here the District Attorney’s Office, to furnish records it does not possess.

The court also ruled that Badalamenti was not entitled to additional copies of those records he sought that had previously be provided to him “unless he can show that the copies are no longer in his or his attorney's possession, a showing he failed to make.”

Access to documents under FOIL limited

Access to documents under FOIL limited

Sinicropi v. Nassau County, 76 AD2d 832

Sinicropi was denied access to certain records related to an administrative disciplinary proceeding.

Citing the McAulay decision (48 NY2d 659), the court refused to order the employer to give the Sinicropi the records he sought, which records the court described as intra-agency memoranda concerning an employee, notes and communications made in preparation of the disciplinary hearing and the transcript of the hearing.

The court viewed this materials as “pre-decisional intra-agency memoranda that are not reflective of final agency policy or determinations” and are therefore exempt from disclosure under the Freedom of Information Law.

Sinicropi had been given a copy of the charges preferred against an employee, the employee's answer to the charges, the "bill of particulars" of the charges and the stipulation of settlement of the disciplinary action. The Court held that further disclosure would be unnecessary and improper.