Courts are to determine the appropriate balance between personal privacy and public interests in considering the appeal of a denial of a Freedom of Information [FOIL] request

Courts are to determine the appropriate balance between personal privacy and public interests in considering the appeal of a denial of a Freedom of Information [FOIL] request

Thomas v New York City Dept. of Educ., 2013 NY Slip Op 01026, Appellate Division, First Department

Noting that the Legislature declared in enacting Public Officers Law §84, "[t]he people's right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society and that access to such information 'should not be thwarted by shrouding it with the cloak of secrecy or confidentiality,'" the Appellate Division rejected the New York City Department of Education General Counsel’s denial of Michael P. Thomas’ administrative appeal challenging the refusal of the Central Record Access Officer [CRAO] to provide him with records demanded in his FOIL request.

The General Counsel had concluded that CRAO's determination denying Thomas’ request fell "well within the bounds" of the “Committee on Open Government's published advisory opinions denying FOIL requests in the context of unsubstantiated complaints, and that redaction of identifying details would not protect the personal privacy of the subject individuals” because Thomas had filed the underlying complaint and therefore knew the identity of the persons even were their names redacted.

The Appellate Division disagreed, holding that under FOIL government records are presumptively available to the public unless they are statutorily exempted by Public Officers Law §87(2) and "Those exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption" citing Hanig v State of N.Y. Dept. of Motor Vehicles. 79 NY2d 106.

Finding that Thomas’ complaint pertained to certain administrators' performance of their official duties when applying for and using federal funds, the Appellate Division remanded the matter to the lower court “for an in camera inspection of the documents to determine if redaction could strike an appropriate balance between personal privacy and public interests and which material could be properly disclosed.”

In addition, the Appellate Division directed the lower court to determine whether portions of the documents may be exempt from disclosure as intra- or inter-agency records that are not statistical or factual data under Public Officers Law §87[2][g].

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_01026.htm

Was the decision supported by substantial evidence is the judicial standard of review of a decision made after an administrative hearing required by law

Was the decision supported by substantial evidence is the judicial standard of review of a decision made after an administrative hearing required by law

The Westchester County Commissioner of the Department of Environmental Facilities adopted the report and recommendation of a hearing officer, made after a hearing pursuant to Civil Service Law §75, finding the individual guilty of certain disciplinary charges, and terminated the individual's employment.

The Appellate Division sustained the Commissioner’s decision, explaining that “The standard of review of an administrative determination ‘made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law’ is whether the determination is supported by substantial evidence.”

Finding that substantial evidence in the record supported the determination that the individual was guilty of the disciplinary charges, the court said that in this instance the penalty imposed, termination, was not so disproportionate to the offense as to be shocking to one's sense of fairness.

In contrast, in Christopher v Phillips, 160 A.D.2d 1165, motion to appeal denied, 76 N.Y.2d 706, the Appellate Division, Third Department, decided a case in which the due process implications of a “non-mandatory” disciplinary hearing were considered.

In Christopher the court ruled that “if a hearing is not required by law, the substantial evidence standard of review does not apply....” Instead, said the Appellate Division, “the appropriate standard for the purpose of judicial review [in such a situation] is whether the determination is arbitrary or capricious.” The fact that a hearing was held even when not required by law does not alter the applicability of that standard.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02071.htm

The appeal of a grievance challenging disciplinary action taken against an employee is controlled by the appeal procedure set out in the collective bargaining agreement

The appeal of a grievance challenging disciplinary action taken against an employee is controlled by the appeal procedure set out in the collective bargaining agreement
State of New York - Unified Ct. Sys. v Association of Surrogate's & Supreme Ct. Reporters within the City of New York, 2013 NY Slip Op 02155, Appellate Division, First Department

In Unified Court System the Appellate Division considered the viability of demanding that an appeal of a grievance challenging disciplinary action taken against an employee be submitted to arbitration. Its conclusion: the availability of arbitration to challenge an employer’s disciplinary decision is controlled by the appeal procedure set out in the collective bargaining agreement.

Although the typical collective bargaining agreement [CBA] provides that an appeal of a grievance challenging disciplinary action taken against an employee is ultimately to be submitted to arbitration, in this instance the Appellate Division unanimously reversed a Supreme Court order compelling the arbitration of a disciplinary termination of an employee in the collective bargaining unit and “permanently stayed” the arbitration.

The court explained that although it did not find any statutory, constitutional or public policy prohibition barring the arbitration of this dispute involving the termination of an employee, the relevant CBA did not provide for the arbitration of the employer's disciplinary determination.

The Appellate Division said that its review of the CBA indicated that the parties had not agreed to arbitrate such a dispute. Rather, said the court, the CBA provided that an employee aggrieved by a disciplinary penalty or punishment “may appeal from the determination by petition to the Chief Administrative Judge or by an application pursuant to CPLR Article 78.”

Accordingly, the arguments presented in support of the Association's demand for arbitration to consider the matter as a contract grievance or, in the alternative, as a non-contract grievance, were deemed irrelevant and the Article set out in the CBA that the Association contended provided for the arbitration of this dispute was held inapplicable in this instance.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02155.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week ending March 31, 2013 [Click on text highlighted in bold to access the full report] 

DiNapoli: Best Buy and Bed Bath & Beyond Agree to Promote Sustainable Business Practices With Suppliers

New York State Comptroller Thomas P. DiNapoli Friday announced agreements with Best Buy and Bed Bath & Beyond to encourage their suppliers to report on workplace safety, human and worker rights and environmental compliance.

DiNapoli: Rensselaer County Employee Stole $200,000

Poor financial controls allowed a county employee to bilk Rensselaer County out of $208,597 over a six–year period, according to an audit released Tuesday by State Comptroller Thomas P. DiNapoli. The former employee was charged in July with grand larceny, falsifying business records and defrauding the government. The extent of her fraud, however, was not determined until county officials contacted DiNapoli’s office requesting a full audit.

State Pension Fund Invests $3.4 Million in Auburn Armature

New York State Comptroller Thomas P. DiNapoli announced Thursday that DeltaPoint Capital Management has acquired a majority stake in Auburn Armature, Inc., an electrical products distributor, manufacturer, and service company in Cayuga County. The New York State Common Retirement Fund is an investor in DeltaPoint through the In–State Private Equity Program.

DiNapoli: State Contractor Underpaid Workers More Than $82,000; CUNY Failed to Monitor Vendor

A vendor with blanket approval to sell audio visual equipment to public entities admitted underpaying its employees at least $82,000 by ignoring prevailing wage laws, according to an audit released Monday by State Comptroller Thomas P. DiNapoli.

ORDA’s Ongoing Fiscal Challenges Prompt DiNapoli Audit

State Comptroller Thomas P. DiNapoli will launch a full financial audit of the Olympic Regional Development Authority after a report by his office found that financial issues persist at a time when its operations have been expanded to include the Catskills–based Belleayre Mountain Ski Center.


Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli Thursday announced his office completed audits of

the East Moriches Union Free School District;

the Liberty Central School District;

he Rotterdam–Mohonasen Central School District; and,

the Wayne Central School District.

Audits published by New York State's Comptroller Thomas P. DiNapoli

Audits published by New York State's Comptroller Thomas P. DiNapoli 

Issued during the week ending March 29, 2013 [Click on the caption to access the full report]

Department of Health, Medicaid Claims Submitted by Accordis Inc. on Behalf of HHC (2011-S-29)
Healthcare providers submit Medicaid claims to the Department of Health’s eMedNY claims processing system for payment of their services. For various reasons, eMedNY denies payment of many claims. Claims that are denied can be modified and resubmitted to eMedNY for payment. In March 2005, HHC hired Accordis to provide billing services for HHC-affiliated providers. For the three-year period ended Dec. 31, 2010, Accordis submitted 192,296 claims totaling more than $26.2 million on behalf of HHC providers. Auditors found eMedNY does not provide a mechanism for associating a paid claim to its previously denied claim. As a result, auditors could not determine whether changes made by Accordis to previously denied claims were appropriate.

Department of Health, Medicaid Overpayments for Non-Emergency Out-of-State Inpatient Services (Follow-Up) (2012-F-25)
In an initial report, auditors found that for the period May 1, 2002 through April 30, 2009, Medicaid made potential overpayments totaling $9.2 million to out-of-state hospitals. Auditors further identified $10.8 million in claim payments for which DOH had not granted the required prior approvals. In a follow up report, auditors found DOH made progress in addressing those issues.

Office of the Attorney General, Accounts Receivable Collections (2011-S-25)
Auditors determined OAG’s Civil Recoveries Bureau was generally effective in its collection of accounts receivable referred by state agencies. Auditors recommended the bureau enhance its collection actions through computer matches with state and New York City payrolls to locate debtors.

As part of a statewide initiative to determine whether the use of travel money by selected government employees was appropriate, auditors looked at travel expenses for the highest-cost travelers in the state for the following state entities:

State University of New York, The College of Fredonia - Selected Employee Travel Expenses (2012-S-138)
Two of these employees worked at the College at Fredonia and had travel costs totaling $689,762. Auditors also examined other travel expenses including three employees with outliers in air and train fares that totaled $148,505. The travel expenses for the five employees were documented and adhered to state travel rules and regulations.

State University of New York, College at Geneseo - Selected Employee Travel Expenses (2012-S-139)
Three of these employees worked at SUNY Geneseo and had travel costs totaling $252,042. The travel expenses for the three college employees selected for audit were documented and adhered to state travel rules and regulations.

State University of New York, Institute of Technology at Utica/Rome - Selected Employee Travel Expenses (2012-S-146)
One of these employees worked at the State University of New York Institute of Technology (SUNYIT) and had travel costs totaling $101,605. Auditors found that the travel expenses for the SUNYIT employee selected for audit were documented and adhered to state travel rules and regulations.

State University of New York, College at Brockport - Selected Employee Travel Expenses (2012-S-150)
One of these employees worked at the College at Brockport (college) and had travel expenses totaling $143,258.  Auditors found that the employee’s travel expenses were documented and adhered to state travel rules and regulations.