Governor Cuomo makes millions of additional records available on the Internet

Governor Cuomo makes millions of additional records available on the Internet

On May 1, 2013, Governor Andrew M. Cuomo made millions of additional records from multiple government agencies available on New York’s new, comprehensive data transparency website, Open.ny.gov, which was launched earlier this year to provide user-friendly, one-stop access to data from the state, localities and the federal government.

The data featured in a new “Transparency” sectionon the website includes: campaign contribution and expenditure records from the New York State Board of Elections dating back to 1999; New York State lobbying and enforcement records from the Joint Commission on Public Ethics; attorney registration as far back as 1898 from the Office of Court Administration; the New York State employee phone directory; and information on public authorities from the Authorities Budget Office.

The voluminous additional data can be searched by keyword, cross-referenced with other public datasets, downloaded for analysis, and graphed, mapped or charted using the tools available through the website.

The data published includes:

· Campaign Contributions, Expenditures, and Committees: Over seven million records of campaign contributions and expenditures dating back to 1999, along with a complete list of candidate committees registered with the Board of Elections;

· Lobbying: Complete disclosure data from the last six years of lobbying reports required under New York State law from lobbyists, clients, and public corporations. Data includes the identities of lobbyists and clients, lobbying expenditures and compensation, and subjects lobbied. The site also includes information newly required under the Public Integrity Reform Act of 2011 on client sources of fundingand lobbyist- and client-reportable business relationships, as reported to the Joint Commission on Public Ethics, plus information on lobbyist disbursement of public money;

· Attorney Registration: New York State attorney registration information, including the admission date, current status (i.e., registered, disbarred, deceased, etc.), and other public information about all attorneys registered in New York State, including attorneys admitted to practice law as far back as 1898; and

· Budget Vetoes: To further increase transparency in the New York State budget process, the site now provides information about budget vetoes in the current budget. Following the enactment of the 2013-14 budget, Governor Cuomo vetoed 202 items that were added by the Legislature. Searchable, downloadable information on these vetoes is now available, including the justification for each item.

Open.ny.gov also now contains data on enforcement activities taken by the Joint Commission on Public Ethics and its predecessors dating back to 2008 and by the New York State Office of the Inspector General dating back to 2010; a new integrated list of public authorities as identified by the Authorities Budget Office; and a searchable, downloadable directory of New York State government employees, including office telephone numbers.

A contract of employment may shorten the controlling statute of limitations available to the employee with respect to his or her suing the employer if not unreasonable or “the product of overreaching”

A contract of employment may shorten the controlling statute of limitations available to the employee with respect to his or her suing the employer if not unreasonable or “the product of overreaching”
Hunt v Raymour & Flanigan, 2013 NY Slip Op 02715, Appellate Division, Second Department

Although contracts of employment are the exception with respect to most employments in the public sector, the decision by the Appellate Division in Hunt v Raymour and Flanigan, a decision involving a lawsuit between a former employer in the private section and its former employee, may be worthy of note by some public employers.

Thomas Huntsigned an application for employment with Raymour & Flanigan (R & F) that included a clause providing that "any claim or lawsuit relating to [his] service with [R & F] must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit." The employment application also stated that Hunt “agreed that he waived any statute of limitations to the contrary.”

Hunt was terminated by R & F some three years later. More than six months after his employment was terminated, Hunt sued R & F and one of R & F’s vice presidents seeking to recover damages based on alleged “employment discrimination and retaliation in violation of Executive Law §296 and [the] Administrative Code of the City of New York §8-107.”

Supreme Court denied R & F motion to dismiss the first and second causes of action asserted by Hunt against R & F in the action he had filed against it and R & F filed a notice of appeal challenging this aspect of Supreme Court's ruling *

Considering R & F’s appeal, the Appellate Division explained that when reviewing a motion to dismiss a complaint pursuant to CPLR §3211(a)(1), "dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law." In this instance, said the court, R & F submitted documentary evidence in the form of the employment application, which demonstrated that Hunt contractually agreed to commence any claim or lawsuit against R & F no more than six months after the date of the employment action that was the subject of the claim or lawsuit.

Significantly, the court stated that "The parties to a contract may agree to limit the period of time within which an action must be commenced to a period shorter than that provided by the applicable statute of limitations [and] [a]bsent proof that the contract is one of adhesion or the product of overreaching, or that [the] altered period is unreasonably short, the abbreviated period of limitation will be enforced" by the courts.

Accordingly, the Appellate Division ruled that Hunt’s arguments that the shortened limitations period set forth in the employment application was not applicable or was unenforceable were without merit. Thus, as Hunt commenced this action more than six months after the date on which his employment terminated, his first and second causes of action insofar as asserted against R & F should have been dismissed by Supreme Court pursuant to CPLR 3211(a)(1).

* The Appellate Division noted that “R & F's contentions on appeal that the third and fourth causes of action should have been dismissed [by Supreme Court] are not properly before this Court.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02715.htm

An electronic resource for law enforcement personnel, attorneys and others involved in law enforcement

An electronic resource for law enforcement personnel, attorneys and others involved in law enforcement

AELE provides unique resource for those involved in law enforcement, providing free publications and online back issues since 2000. It has a searchable library of more than 33,000 case digests organized into 700 + indexed topics. There are no advertisements, tracking "cookies" or popups on its website and users do not have to preregister. There is no time limit on research sessions and the contents of AELE’s online law library may be copied and pasted, saved or printed (except for commercial purposes).

AELE encourages readers to sign up for its e-mail alerts at http://www.aele.org/e-signup.html 

AELE also has a free search tool [http://www.aele.org/htdig/common/search.html] covering its database of more than 33,000 case summaries and offers access to its more than 33,000 case summaries, divided into 700 + topics.

1. Law enforcement civil liability at http://www.aele.org/law/Digests/civilmenu.html
2. Employment law and discipline at http://www.aele.org/law/Digests/emplmenu.html
3. Jail and prisoner legal issues at http://www.aele.org/law/Digests/jailmenu.html

The following items were posted in AELE’s May issue:

1. Article: Power Down: Tasers, the Fourth Amendment and Police Accountability, 91 N.C. Law Rev. 606 (Jan. 2013).

View at http://www.nclawreview.org/documents/91/2/mance.pdf

2. A new article appears in the AELE Monthly Law Journal.

* Public Protection -- Part One: The Physically Ill

Police officers inevitably run into individuals who are seriously ill, such as heart attacks, strokes, epileptic seizures, diabetic incidents, and any number of other health emergencies in which the lack of swift action may all too often mean the difference between life and death or permanent impairment and disability.

View at http://www.aele.org/law/2013-05MLJ101.html

3. The May 2013 issues of AELE's three periodicals have been uploaded.

The current issues, back issues since 2000, case digests since 1975, and a search engine are FREE. Everyone is welcome to read, print or download AELE publications without charge. The main menu is at: http://www.aele.org/law

*** Law Enforcement Liability Reporter ***

Nine cases are discussed in this issue, including false arrest, firearms related, restraint asphyxia, photographing an officer making an arrest, immigration issues and search & seizure.

View at http://www.aele.org/law/2013all05/LR2013MAY.html

*** Fire, Police & Corrections Personnel Reporter ***

Ten cases are discussed in this issue, including disability claims, Weingarten rights, standby pay, pensions, retaliation, exclusionary rule, and other issues.

View at http://www.aele.org/law/2013all05/FP2013MAY.html

*** Jail and Prisoner Law Bulletin ***

Ten cases are discussed in this issue, including inmate orthopedic shoes, classification as a Mexican Mafia member, fatal drug interactions, a Ponzi scheme, religious hairstyles, retaliation, punitive segregation, sexual assault and workers compensation.

View at http://www.aele.org/law/2013all05/JB2013MAY.html

4. Selected criminal law and procedure cases are at two other free websites.

http://www.fletc.gov/training/programs/legal-division/the-informer/informer-editions-2012/and http://www.kenwallentine.com/Xiphos.html

Agency required to comply with its own procedures in processing a disciplinary action

Agency required to comply with its own procedures in processing a disciplinary action
Hassan v New York City Dept. of Correction, 2013 NY Slip Op 02686, Appellate Division, First Department

In this appeal of a CPLR Article 78 decision by Supreme Court that sustained the New York City Department of Correction’s [DOC] finding that the individual [Appellant] was guilty of certain charges, the Appellant conceded that the Hearing Officer’s determination was supported by substantial evidence.

Rather, Appellant contended, the record before the Supreme Court was defective because it was incomplete in that it lacked a record of the disciplinary hearing, DOC’s answer, and a written statement by a Correction Officer that the Hearing Officer was required to show Appellant as required by “DOC Directive 6500R-B(III)(C)(25) and (26).”

The Appellate Division agreed, explaining that “it cannot be determined on this record whether the Hearing Officer's failure to show [Appellant] the written statement by [the Correction Officer] prejudiced Appellant's defense.

Accordingly, said the court, it was remanding the matter to Supreme Court and directed DOC “to submit an answer pursuant to CPLR 7804(d) and any appropriate submissions pursuant to CPLR 7804(e), including a record of the hearing and a written witness statement [by the Correction Officer].”

The ruling further provides that after DOC made such submissions to Supreme Court, Supreme Court is to determine if the failure to provide Appellant with these writings “was harmless error.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02686.htm

A state may deny access to records available to its citizens pursuant to its Freedom of Information Law to individuals not citizens of that state who make a FOIL request for such records

A state may deny access to records available to its citizens pursuant to its Freedom of Information Law to individuals not citizens of that state who make a FOIL request for such records

McBurney Et Al. v. Young, Deputy Commissioner and Director, Virginia Division of Child Support Enforcement, Et Al.U.S. Supreme Court 14-7206

A challenge to Virginia's Freedom of Information Act (FOIA), which grants only citizens of Virginia access to all public records, does not violate the Privileges and Immunities Clause of the U.S. Constitution was rejected by U.S. Supreme Court, affirming the ruling by the Court of Appeals, 4^thCircuit.

Mark J. McBurney and Roger W. Hurlbert, respectively citizens of Rhode Island and California, each requested documents under the Virginia FOIA. Their requests were denied because of their citizenship although such documents would have been provided to them had they been citizens of Virginia.

The court explained that Virginia’s Freedom of Information Act “does not regulate commerce in any meaningful sense, but instead provides a service that is related to state citizenship.” Accordingly, said the court, it did not violate any provision set out in the U.S. Constitution when it refused to furnish certain information otherwise available to citizens of Virginia that it denied the McBurney plaintiffs.

In the words of the court: Under the Privileges and Immunities Clause, "[t]he Citizens of each State [are] entitled to all Privileges and Immunities of Citizens in the several States." U. S. Constitution, Article IV, §2, Clause. 1. We have said that "[t]he object of the Privileges and Immunities Clause is to 'strongly . . . constitute the citizens of the United States [as] one people,' by 'plac[ing] the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned.' "… This does not mean, we have cautioned, that ‘state citizenship or residency may never be used by a State to distinguish among persons.’ … Nor must a State always apply all its laws or all its services equally to anyone, resident or nonresident, who may request it so to do."

The Supreme Court concluded that “Virginia's citizens-only FOIA provision neither abridges any of McBurney's or Hurlbert's fundamental privileges and immunities nor impermissibly regulates commerce,” thus the constitutional claims advanced by McBurney and Hurlbert failed.

The decision is posted on the Internet at:

http://www.supremecourt.gov/opinions/12pdf/12-17_d1o2.pdf