E-mails between a public employer and an applicant for public employment may be subject to disclosure pursuant to the Freedom of Information Law

E-mails between a public employer and an applicant for public employment may be subject to disclosure pursuant to the Freedom of Information Law
Hernandez v Office of the Mayor of the City of New York, 2012 NY Slip Op 08067, Appellate Division, First Department

Sergio Hernandez filed an Article 78 petition seeking a court order annulling the determination of the Office of the Mayor of the City of New York denying his requests under the Freedom of Information Law (FOIL) for certain e-mails sent from or “received by any government email accounts assigned to the Office of the Mayor to or from Cathleen Black, at the time she was a nominee for the position of New York City School Chancellor” and certain other records.

Supreme Court directed the City to produce redacted copies of such e-mails, which as the Appellate Division subsequently noted, were not exempt from disclosure as inter- or intra-agency materials within the meaning of Public Officers Law §89[2][g].

The City appealed the court’s order.

The Appellate Division sustained the lower court’s ruling, explaining that Black was not an agent of the City since she had not yet been retained as Chancellor. In addition, said the court, Black was not acting simply as an outside consultant on behalf of the City, but was a private citizen with interests that may have diverged from those of the City.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08067.htm

Failure to correctly identify the court and the name of the judge signing a search warrant a fatal defect

Failure to correctly identify the court and the name of the judge signing a search warrant a fatal defect

People v Gavazzi, 2012 NY Slip Op 08054, Court of Appeals

This LawBlog’s summary of Gusler v. City of Long Beach, USCA, Docket #11-4493-cv [see http://publicpersonnellaw.blogspot.com/2012/11/the-failure-to-name-parties-appealing.html] noted that the U.S. Court of Appeals, Second Circuit, ruled that the failure to correctly name the parties appealing a federal district court’s ruling was a fatal jurisdictional defect.

In People v Gavazzi the defects challenged by Gavazzi involved the name of the jurisdiction, the name of the court and the name of the justice signing a search warrant.

The Court of Appeals, Justice Smith dissenting, held that a warrant to search Gavazzi’s residence in the Village of Greene, Chenango County, was defective as the result of the inadvertent typing of "Local Criminal Court, Town of Broome, Broome County" at the head of the warrant instead of "Local Criminal Court, Town of Greene, Chenango County." There is no municipality of Broome in either Broome County or Chenango County and the Village Justice signed the warrant without correcting the error.

Further, said the court, the Justice’s signature on a line marked "Signature of Judge or Justice” was illegible.

The Appellate Division had held that the warrant did not substantially comply with §690.45(1)* of the Criminal Procedure Law because it contained "no information from which the issuing court can be discerned" (see 84 AD3d 1427 at 1429). The Court of Appeals agreed with the Appellate Division's analysis, explaining that a search warrant must contain "[t]he name of the issuing court," again citing CPL §690.45 [1]).** Here, however, the Village Justice who signed the warrant included no designation of his court, his signature was illegible, there is no seal, and the caption referred to a nonexistent town.

In the words of the Appellate Division, "on its face the warrant appears to [have been] issued by an unidentified judge in a nonexistent court and town in a different county", concluding that the warrant did not substantially comply with CPL §690.45(1).

The bottom line: evidence sized under color of the warrant had to be suppressed.

* §690.45, in pertinent part, provides that “A search warrant must contain: 1. The name of the issuing court and, except where the search warrant has been obtained on an oral application, the subscription of the issuing judge;"

** The Court of Appeals noted that standard for adherence to the statutory requirement is "substantial — rather than literal — compliance."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08054.htm

Possession of a valid license or permit to perform the duties of the position

Possession of a valid license or permit to perform the duties of the position

Lutz v Krokoff, 2012 NY Slip Op 07938, Appellate Division, Third Department

It is well settled that employment in certain positions or occupations in New York State requires the individual to posses a valid license or its equivalent. Examples of this include teaching in a public school, operating motor vehicle on public highways, practicing law or medicine and serving as a certified public account. In the event the individual no longer possesses the required license or permit, he or she can neither lawfully perform nor be permitted to perform the duties requiring the possession of a valid permit or license.*

When it learned that a police officer’s driver's license was temporarily revoked, the police department’s chief advised the officer that possession of a valid driver's license was a minimum qualification for employment by the department as a police officers and gave him an opportunity to provide documentation demonstrating that he possessed a valid driver’s license.**

When the officer could not produce evidence that he possessed a valid driver’s license his employment was terminated “for failure to meet the minimum qualifications for his position.”

The officer then initiated an Article 78 proceeding challenging his termination as arbitrary and capricious and affected by an error of law. Supreme Court dismissed the police officer’s petition, prompting his appeal to the Appellate Division.

The police department, conceding that possession of a valid driver's license was not specifically listed as a minimum qualification for appointment to the position of a police officer, nevertheless contended that such a license was an implied requirement in view of the fact that the job description for its police officers listed, among other things, the "[a]bility to operate an automobile."

The Appellate Division was not persuaded by this argument, ruling that “summary dismissal of an employee based merely upon an inference cannot be countenanced.” In contrast, said the court, “Where summary dismissal has been upheld for failure to maintain a minimum qualification of employment, the qualification at issue has been clearly and explicitly set forth.”

Further, the court observed that the record indicated that almost one third of the police officers employed by the department performed functions other than those requiring possession of a valid driver’s license and noted that the department’s “Standard Operating Procedures” stated that a police officer shall "[p]ossess a valid New York State driver[']s license, whenever required as a condition of employment" (emphasis supplied by the court).

In the court’s view, this “conditional language” suggested that that there were police officers in the department who were not required to possess a driver's license as a necessary condition of employment.

Noting that the civil service commission having jurisdiction had promulgated a class specification for another position, firefighter, that explicitly required the possession of a valid New York State driver's license at the time of employment and throughout the duration of the individual’s employment as a firefighter, the Appellate Division concluded that the police officer’s termination without a hearing was both arbitrary and capricious and contrary to law and reversed the lower court’s ruling

* See, for example, Meliti v Nyquist, 41 NY2d 183

** In the words of the Appellate Division, citing Carr v NYS Dept. of Transportation, 30 AD3d 1110, "an employee charged with failing to possess a minimum qualification of his or her position is only entitled to notice of the charge and the opportunity to contest it.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07938.htm

Self-critical privilege not available to public entities in New York State objecting to the release of certain information

Self-critical privilege not available to public entities in New York State objecting to the release of certain information

Uniformed Fire Officers Assn., Local 854 v City of New York, 2012 NY Slip Op 07899, Appellate Division, First Department

Supreme Court denied the City of New York’s motion to quash a judicial subpoena obtained by the Uniformed Fire Officers Association, Local 854, requiring the City to supply it with copies of drafts of a public safety consultant's report recommending a change affecting the City’s 911 call system.

The Appellate Division sustained the Supreme Court’s ruling, holding that the City failed to show that the public interest would be harmed by the disclosure of drafts of the consultant's report to the Local.

The court explained that the City’s claim of protection under the so-called "self-critical" privilege*was misplaced as “This privilege has never been recognized under New York law.”

Further, the Appellate Division observed that the City had not demonstrated that there were "exceptional and compelling circumstances" that might justify the judicial creation of a new privilege

In the words of the court, “Absent sensitive subject matter or exposure of review participants to liability, the City's contention that the disclosure of the drafts would have a chilling effect on the internal discussions of those engaged in reviewing technical projects such as this is speculative.”

In contrast, said the court, Local 854 had shown a need for the drafts for the purpose of  preparing its case before the City’s Collective Bargaining Board.

* The self-critical analysis privilege, if available, would protect an entity’s self-evaluative materials from disclosure when it is shown that the public interest in preserving the internal evaluations of the organization outweighs an interested party's right to the information.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07899.htm

The failure to name the parties appealing a lower court’s ruling held a fatal jurisdictional defect

The failure to name the parties appealing a lower court’s ruling held a fatal jurisdictional defect

Gusler v. City of Long Beach, USCA, Docket #11-4493-cv

Jay Gusler, acting pro se, filed an action under 42 U.S.C. §1983 alleging that the defendants* unlawfully retaliated against him.

The district court dismissed claims against some of the defendants but then dismissed a motion by the remaining individual defendants' raising a defense of qualified immunity. The remaining defendants then appealed the district court's dismissal of their motion.

The Circuit Court of Appeals rejected the appeal filed by the remaining individual defendants, finding that it lacked jurisdiction to consider the merits of the appeal as they had not filed a timely notice of appeal.

Although the notice of appeal contained the full caption of the action, the body of the appeal stated: “Notice is hereby given that the defendant Nassau County hereby appeals.” However, said the court, while The City of Long Beach is in Nassau County, Nassau County itself is not a party in the action.

The Circuit Court said that the appeal as initially filed did not “provide notice to the court [or] to the opposing parties of the identity of the appellant or appellants” so that neither the Circuit Court, nor the district court, nor the plaintiff  “know . . . which parties are bound by the district court’s [decision] [and] which parties may be held liable for costs or sanctions on the appeal.”

Further, noted the Circuit Court, the amended notice of appeal did not cure the problem as the amended notice was filed after the time to appeal had run.**

The Circuit Court dismissed the appeal, explaining that “Because the notice of appeal did not specify which defendants were taking an appeal of the district court’s decision, we lack jurisdiction to consider their appeal.”

* Gusler had named as the defendants in his action The City Of Long Beach, The Long Beach Volunteer Fire Department, The Long Beach Police Department, and twelve individuals.

** The Circuit Court also pointed out that the defendants “did not seek an extension of time to amend and correct the notice of appeal … and the time to do so has long since passed….”

The Circuit Court's decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/67fcaa5c-1014-4d83-957a-173edf363d85/1/doc/11-4493_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/67fcaa5c-1014-4d83-957a-173edf363d85/1/hilite/