Providing the names and home addresses of employees of a private contractor to an employee organization to be determined by applying a “balancing test” to avoid an "unwarranted invasion" of privacy

Providing the names and home addresses of employees of a private contractor to an employee organization to be determined by applying a “balancing test” to avoid an "unwarranted invasion" of privacy
Massaro v New York State Thruway Auth., 2013 NY Slip Op 07234, Appellate Division, Third Department*

A union official submitted a Freedom of Information Law [FOIL] request to the New York Thruway Authority in an effort to “ensure that nonunion contractors comply with the prevailing wage law” (see Labor Law §220). Among other things, the official asked the Thruway to provide certified payroll records of a private nonunion contractor relating to work it performed on a public works project and the names and home address of the employees performing the work employed by the nonunion contractor.

The Thruway granted the official's request in part, providing employee titles and corresponding wage rates that were paid, redacting the employees' names, home addresses and Social Security numbers. The Thruway contended that providing the names and related information of the employees would constitute an unwarranted invasion of personal privacy within the meaning of FOIL.

After an unsuccessful administrative appeal, the official filed an Article 78 petition in Supreme Court seeking a court order directing the Thruway to provide him with the private employer’s employees' names and home addresses. Supreme Court dismissed the petition and official appealed that court’s ruling.

The Appellate Division, pointing out that the personal privacy exemption set out in Public Officers Law §87 [2] [b]) provides “a nonexhaustive list of categories of information that falls within the exemption.”

Where, however, none of the categories of exemption specifically cover the information demanded, the court said that the issue of whether there is an "unwarranted invasion" of privacy is decided "by balancing the privacy interests at stake against the public interest in disclosure of the information."

As to the balancing analysis, the Appellate Division said that “An unwarranted invasion of personal privacy has been characterized as that which ‘would be offensive and objectionable to a reasonable [person] of ordinary sensibilities.'  Here the official wishes to obtain the names and home addresses so that it can contact employees of the nonunion contractor to find out if they were paid as reported by their employer.”

In the words of the Appellate Division, “The scenario of nonunion employees of a nongovernment employer being contacted at their homes by someone from a union who knows their names, their home addresses, the amount of money they reportedly earn, and who wants to talk about that income would be, to most reasonable people, offensive and objectionable.” This, the court characterized as “a significant privacy interest.” Citing United States Dept. of Defense v Federal Labor Relations Auth., 510 US 487.

Rejecting the union official’s argument that the release of this information to his union is in the public interest since the union is attempting to ensure that the contractor paid appropriate wages and that the union is gathering necessary data should an underpaid employee desire its representation under Labor Law § 220-g, the Appellate Division said that the redacted payroll records that the Thruway provided – indicating employee titles and corresponding wage rates — provide “sufficient information (absent fraudulent record creation by a contractor) to confirm whether the contractor complied with wage requirements.”

Further, explained the court, in the event fraudulent or any other noncompliant conduct is suspected, an investigation may be initiated upon request to the appropriate government official as Labor Law §220 (7) provides that a governmental fiscal officer "shall on a verified complaint in writing of any person interested or of [a union] [or] may on his [or her] own initiative cause a compliance investigation to be made to determine whether the contractor . . . has paid the prevailing rate of wages."

The Appellate Division’s conclusion” “Notwithstanding the FOIL presumption of access to information gathered by the government and the important policy of ensuring payment of prevailing wages, the significant personal privacy interests implicated here prevail, particularly since the information already provided to petitioner should be sufficient to ensure compliance; in any event, other avenues are available to ensure compliance without invading the privacy of the employees of the nonunion contractor by disclosing their names and home addresses.”

* See also Stevens v New York State Thruway Authority, 2013 NY Slip Op 07235, Appellate Division, Third Department, a case involving essentially the same issues, posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_07235.htm

The Massaro decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07234.htm
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Two different complaints; two different forums

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If a disinterested party could concluded the appointing authority had adjudged the matter in advance of hearing it, remanding the matter to a qualified and impartial individual is required

If a disinterested party could concluded the appointing authority had adjudged the matter in advance of hearing it, remanding the matter to a qualified and impartial individual is required
2013 NY Slip Op 08575, Appellate Division, Third Department

A fire inspector [Inspector] employed by the Village also served as the president of its firefighters union. Inspector was served with disciplinary charges and specifications Civil Service Law §75 alleging misconduct. The charges alleged that Inspector had engaged in an oral altercation with the Fire Chief concerning a directive issued by the Chief, during which he made two statements that resulted in disciplinary charges being filed.

Inspector filed an improper practice charge with the Public Employment Relations Board (PERB) shortly after being served with the disciplinary charges alleging that the Village’s decision to discipline him amounted to anti-union animus.

At the hearing on the disciplinary charges Inspector acknowledged that he had made the one statement but denied making the second statement alleged in the charges filed against him. Crediting the testimony of witnesses to the encounter to the effect that Inspector had, in fact, made the second statement, the Hearing Officer found Inspector guilty of the charges and recommended a period of unpaid suspension. The Village’s Mayor sustained the findings of guilt but modified the penalty to be imposed on Inspector.*

During the PERB hearing, held shortly after the Mayor had sustained the findings in the disciplinary hearing, Inspector again testified that he did not make the second statement.

This resulted in Inspector being served with new disciplinary charges alleging misconduct amounting to perjury and making a false official statement, as well as incompetence for failure to be truthful based on his testimony at the PERB hearing and his testimony at the disciplinary hearing.

This second §75 disciplinary hearing resulted in Inspector being found guilty of the charges and the Hearing Officer recommending that his employment be terminated. The Mayor adopted the findings and penalty of the Hearing Officer, whereupon Inspector filed an Article 78 petition seeking an order vacating the Mayor’s action. Supreme Court dismissed the petition and Inspector appealed.

The Appellate Division first noted that “Where a witness testifies falsely under oath, he or she may properly be subject to additional proceedings and sanctions, noting that the United States Supreme Court has held “…under circumstances indistinguishable from those present here … that ‘a [g]overnment agency may take adverse action against an employee because the employee made false statements in response to an underlying charge of misconduct’,” citing Lachance v Erickson, 522 US 262.

Notwithstanding this, the Appellate Division said that “Reversal is required,” explaining that the Mayor was disqualified from reviewing the Hearing Officer's recommendations. Although an administrative decision maker is not deemed biased or disqualified merely on the basis that he or she reviewed a previous administrative determination and ruled against the same employee, or presided over a prior proceeding involving a similar defense or similar charges, in this instance the Appellate Division found that there was evidence indicating that the administrative decision maker may have prejudged the matter at issue. Thus, the court concluded, “disqualification is required.”

The Appellate Division noted that in his decision in the first disciplinary proceeding, the Mayor not only agreed with the Hearing Officer's report, but also stated his own opinion that "I do not believe [Inspector 's] account of what was said."

Further, said the court, his affidavit submitted in Inspector's CPLR article 78 proceeding challenging the first disciplinary determination, “the Mayor went one step further.” In explaining the portion of his decision addressing Inspector's version of the second statement, the Mayor said that he found that version "incredible."

Although the falsity of Inspector 's account of the second statement was not at issue in the second disciplinary proceeding, as that issue was conclusively determined in the first disciplinary proceeding, the central issue in the second disciplinary proceeding was whether Inspector's false testimony was given knowingly and willingly. Thus, after concluding that he did not believe Inspector's account of what was said and that Inspector’s version was "incredible," the Mayor put himself in the position of determining whether the statement that Inspector did in fact make was made knowingly and willfully.

The problem, said the court, was that these questions were inextricably intertwined, and the Mayor's statements regarding Inspector's testimony in the first proceeding were such that "a disinterested observer may conclude that [the Mayor] ha[d] in some measure adjudged the facts" surrounding the knowing and willful question "in advance of hearing it."

Accordingly, the Appellate Division ruled that the Mayor should have recused himself and because he did not, his determination was affected by an error of law.

The proper remedy, said the court, Judge Egan dissenting in part, was to remit the matter for a de novo review of the present record and the Hearing Officer's recommendations by a qualified and impartial individual

* Inspector commenced a CPLR article 78 proceeding challenging the determination, and Supreme Court dismissed the petition. Inspector did not appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08575.htm
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Although an employee organization and the employer are able to retroactively bind each other to the terms of a collective bargaining agreement, they unable to bind third parties to the agreement under color of the Taylor Law

Although an employee organization and the employer are able to retroactively bind each other to the terms of a collective bargaining agreement, they unable to bind third parties to the agreement under color of the Taylor Law

Buffalo Niagara Airport Firefighters Assn. v DiNapoli, 2013 NY Slip Op 07227, Appellate Division, Third Department

In 2009, in response to an "unprecedented" fiscal crisis,* the State Legislature revamped the State's Employee’s Retirement System and created a new Tier 5 requiring all newly hired firefighters, among others, to contribute a portion of their salary to the retirement system.

The legislation was made effective January 9, 2010 but it provided for an exception whereby eligible employees could join a noncontributory special retirement plan available to them pursuant to a collectively bargained agreement that was "in effect on the effective date of this act", i.e., on January 9, 2010.

The Buffalo Niagara Airport Firefighters Association [Association] and the Niagara Frontier Transportation Authority [NFTA] had entered into a collective bargaining agreement [CBA] that covered the period April 1, 2008 through March 31, 2009  [the 2008 Agreement] and subsequently executed a successor CBA in August 2010 that retroactively covered the period from April 1, 2009 through March 31, 2013 [the 2009 Agreement]. 

Both the 2008 Agreement and the 2009 Agreement permitted NFTA firefighters to participate in a noncontributory special retirement plan.

The Comptroller, however, determined that certain NFTA's newly hired firefighters were not eligible for the statutory exception and thus were unable to enroll in the noncontributory plan because no CBA was in effect on January 9, 2010. 

The Association challenged the Comptroller’s determination, contending that the “newly hired firefighters” were entitled to participate in the noncontributory plan provided for in the CBAs because either [1] the expired 2008-2009 CBA continued to be "in effect" on January 9, 2010 pursuant to the Triborough Amendment** or, in the alternative, [2] the 2009-2013 CBA was retroactively "in effect" on that date.

Supreme Court sustained the Comptroller's determination and the Association appealed.

The Appellate Division affirmed the lower court’s ruling, explaining that the Association’s “reliance on the continued effect of the terms of the 2008-2009 CBA is unavailing in light of the recent decisions of the Court of Appeals expressly rejecting the application of the Triborough Amendment to the Tier 5 retirement legislation.”***

Thus, said the court, “the expired 2008-2009 CBA cannot be considered to have been ‘in effect’ on January 9, 2010 for the purpose of permitting the new hires to qualify for the statutory exception.”

Further, the Appellate Division ruled that 2009 Agreement could not be retroactively "in effect" on January 9, 2010, as it was not executed until seven months later in August 2010. 

The court concluded that in August 2010 newly hired firefighters were required by law to contribute to the retirement system and, as a result, “the Union and NFTA were prohibited from agreeing to a noncontributory retirement plan”, citing Civil Service Law §201[4]**** and Retirement and Social Security Law §470.

The Appellate Division explained that although “the Union and NFTA were able to retroactively bind each other to the terms of the 2009-2013 CBA, they were unable to bind third parties such as the Comptroller.” [See, also, Matter of Council of School Supervisors & Adm'rs, Local 1 v New York City Dept. of Educ., 87 AD3d 883, an entity not a party to a collective bargaining agreement negotiated pursuant to the Taylor Law may not be bound by its terms.]

* See Governor’s Program Bill Mem, Bill Jacket, Chapter 504 of the Laws of, 2009

** Civil Service Law § 209-a [1] [e]

*** Matter of City of Oswego, 21 NY3d 880; Matter of City of Yonkers v Yonkers Fire Fighters, Local 628, 20 NY3d 651

**** Civil Service Law §201[4] provides that “The term "terms and conditions of employment" means salaries, wages, hours and other terms and conditions of employment provided,  however, that such term shall not include any benefits provided by or to be provided by a public retirement system, or payments to a fund or insurer to provide an income for retirees, or payment to retirees or their beneficiaries. No such retirement benefits shall be negotiated  pursuant to this article, and any benefits so negotiated shall be void." while §470 of the Retirement and Social Security Law, captioned “Temporary suspension of retirement negotiations,” provides that “Changes negotiated between any public employer and public employee, as such terms are defined in section two hundred one of the civil service law, with respect to any benefit provided by or to be provided by a public retirement system, or payments to a fund or insurer to provide an income for retirees or payment to retirees or their beneficiaries, shall be prohibited."

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_07227.htm
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Governor Cuomo releases 2013 year-end report

Governor Cuomo releases 2013 year-end report

Source: Office of the Governor

Governor Andrew Cuomo assumed office as the 56th Governor of the State of New York three years ago. On December 27, 2013 Governor Cuomo office issued the Governor’s 3rd annual year-end report, detailing New York’s progress in 2013.

The complete 54 page report can be found here. 
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