A department policy does not trump the probationary period established by law or by a rule or regulations having the force and effect of law

A department policy does not trump the probationary period established by law or by a rule or regulations having the force and effect of law

Yan Ping Xu v New York City Dept. of Health & Mental Hygiene, 2014 NY Slip Op 07261, Appellate Division, First Department

One of the issues in this Article 78 action concerned the termination of Yan Ping Xu [YPX], a New York City employee serving as a "City Research Scientist I," a position in the noncompetitive class .

Under the controlling Personnel Rules and Regulations of the City of New York, persons appointed to a position in the noncompetitive class are subject to a probationary period of six months unless another period is set by the Commissioner of the Department of Citywide Administrative Services (DCAS).* 

YPX was terminated from her position without notice and hearing after this six-month probationary period had passed. HMH contended that YPX was subject to a probationary period of one year in accordance with the provisions of the governing collective bargaining agreement (CBA) and HMH’s own probationary termination policy.

The Appellate Division said that there was “no evidence that, during the period of [YPX’s] employment, the Commissioner of DCAS had altered the default six-month probationary period for the City Research Scientist I position.” Indeed, said the court, “the record contains a letter from DCAS expressly confirming that, ‘during the period June 30, 2007 to March 16, 2008, no . . . DCAS document existed’ that "provided for a civil service probationary period different than the one specified in [Personnel Rule and Regulation] 5.2.1."

As to HMH’s reliance on the provisions of the CBA with respect to YPX’s probationary period, the court pointed out that “[e]ven if the CBA could trump Personnel Rule 5.2.1(b), the CBA provision relied on by [HMH] does not in any way set forth a probationary period for noncompetitive employees.”**

Nor, said the Appellate Division, does HMH’s termination policy, which purport to provide for a probationary period of one year for City Research Scientists, serve to change the probationary period for City Research Scientist I positions as only the Commissioner of DCAS, and not the head of any other agency, may set probationary periods for employees appointed to positions in the noncompetitive class at something other than the period set by the Commissioner of DCAS.***

Accordingly, the court said it found YPX was subject to a probationary term of six months and upon the expiration of that six-month period she became a “tenured employee.”****

The Appellate Division remanded the matter to HMH “for further consideration of [YPX’s] claim of unlawful termination.”

* Such personnel regulations have the force and effect of law.

** See, for example, Gordon v Town of Queensbury, 256 AD2d 784. In Gordon the Appellate Division held that the probationary rules set out in a collective bargaining agreement trumped the probationary rules set in the regulations of the responsible civil service commission.

*** The court noted that HMH did not cite any provision of law that gives it the authority to establish a different probationary period for persons appointed to the title of City Research Scientist I. a position in the noncompetitive class of the classified service as defined in the Civil Service Law..

**** In its decision the court said that YPX became a “permanent” employee. However, an employee serving a probationary period is a permanent employee and attains tenure in the title upon his or her successful completion of the probationary period. Civil Service Law §63.1, in pertinent part, provides that a “… municipal civil service commissions may provide, by rule, for probationary service … upon appointment to positions in the exempt, non-competitive or labor classes….” and “shall, subject to the provisions of this section, provide by rule for the conditions and extent of probationary service” [see Civil Service Law §63.2].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07261.htm
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The custodian of public records demanded pursuant to a FOIL request electing to withhold some or all such records has the burden of demonstrating that the information requested falls within a statutory exemption

The custodian of public records demanded pursuant to a FOIL request electing to withhold some or all such records has the burden of demonstrating that the information requested falls within a statutory exemption
Jaronczyk v Mangano, 2014 NY Slip Op 07164, Appellate Division, Second Department

The basic concept underlying the Freedom of Information Law [FOIL] is that all government documents and records, other than those having access specifically limited by statute,* are available to the public. Further, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute.In contrast, a FOIL request is required in the event the custodian of the public record[s] sought declines to voluntarily provide the information or record requested. 

It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

John Jaronczyk wanted certain overtime records maintained by the Nassau County Sheriff's Department. Nassau initially denied Jaronczyk access, contending that the records contained the signatures of the captains who approved overtime requests but ultimately provided the requested records after redacting the signatures on the records that were provided.

Nassau argued that that redaction was proper pursuant to the "unwarranted invasion of personal privacy" statutory exemption, citing Public Officers Law § 87[2][b], claiming that disclosing the captains' signatures "would result in economic or personal hardship to the subject party" and the signatures were "not relevant to the work of the agency." 

The Appellate Division rejected Nassau's argument, stating that because Nassau had failed to “proffer more than conclusory assertions supporting these claims,” Supreme Court had correctly determined that Nassau failed to meet its burden of demonstrating that the information requested fell within this statutory exemption and thus, properly directed disclosure of the records without these redactions.

The court observed that the agency denying access to the records demanded has the burden of demonstrating that the information sought falls within a statutory exemption, "which exemptions are to be narrowly construed." As the Court of Appeals held in Westchester Rockland Newspapers v Kimball, 50 NY2d 575, cited by the Appellate Division in its decision, "FOIL compels disclosure, not concealment." wherever the agency fails to demonstrate that a statutory exemption applies.

The Appellate Division explained that in order to survive a challenge to the custodian of the record's refusal to release the records demanded requires the entity resisting disclosure to "articulate a particularized and specific justification for denying access'" and "conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed."

Noting that a court may award an attorney's fee and costs to a petitioner in conjunction with a FOIL request where the petitioner has substantially prevailed, and “(i) the agency had no reasonable basis for denying access; or (ii) the agency failed to respond to a request or appeal within the statutory time,” the Appellate Division said that, contrary to the Nassau's contention, the fact that  Nassau provided access to redacted documents during the pendency of the proceeding does not preclude a determination that Jaronczyk  substantially prevailed. Rather it is only one factor to be considered in determining whether an award of an attorney's fee and costs under the circumstances is appropriate.

Finding that Nassau failed to articulate a reasonable basis for redacting the signatures at issue, and because the Jaronczyk prevailed on this issue, the Appellate Division ruled that Supreme Court “did not improvidently exercise its discretion in granting that branch of the petition which was for an award of an attorney's fee and costs.”

* See, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07164.htm
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An appointing authority may not ignore statutory procedures and thereby deprive public employees of the protection of the statute

An appointing authority may not ignore statutory procedures and thereby deprive public employees of the protection of the statute
Thornton v Saugerties Cent. Sch. Dist., 2014 NY Slip Op 07046, Appellate Division, Third Department

The School District’s [District] data administrator’s [Thornton] position was abolished for budgetary reasons upon the School District’s purchase of data management services from a Board of Cooperative Educational Services (BOCES). The duties of the former District data administrator were assumed by existing staff members of BOCES. When the District denied Thornton’s request to by transferred to BOCES pursuant to Civil Service Law §70(2), she be transferred to BOCES to perform her former duties.

Thornton then commenced an Article 78 proceeding seeking reinstatement to her former position and transfer to BOCES, and reinstatement of her employee benefits.

When Supreme Court dismissed the petition on the merits, finding that Thornton had no clear right to the relief requested because she was not a necessary employee within the meaning of Civil Service Law §70(2), she appealed.

The Appellate Division held that Supreme Court should have addressed the District's motion seeking dismissal of the petition as untimely and, if it was denied, permitted the District to answer before ruling on the merits. The court, accordingly, said that it would statute of limitations defense advanced by the District. 

The CPLR required Thornton to commence her Article 78 action within four months after the District's determination became final and binding upon her. However, to determine when the statute of limitations began to run, the Appellate Division said it must first address whether Civil Service Law §70(2) applies in this instance, explaining that:

1. If it does not apply, this is a common termination of public employment case and, because no administrative hearing is required and the statutory "period runs from the notice of discharge, or the effective DAte of discharge, if later." If §70(2) did not apply in this instance, Thornton’s petition was untimely.

2. If Civil Service Law §70(2) did apply in Thornton's situation, the court characterized the situation, as “more complicated” and the statute of limitations would normally run from the performance of certain obligations by the District.* The District, however, did not believe that §70(2) applied in this situation and did not perform those statutory obligations.

In this instance Civil Service Law §70(2) was triggered "[u]pon the transfer of a function" from the District to BOCES and the District’s decision to move its own data management services to BOCES constituted the "transfer of a function" within the meaning of the statute.

Accordingly, §70(2) required the District and BOCES to comply with a number of procedural steps. including the District's providing BOCES with a list of the names and titles of all District employees who were "substantially engaged in the performance of the function to be transferred” not less than 20 days before any such transfer and, in addition, to publicly post that list along with a copy of the statute. This, explained the court, would provide all District employees time to give written notice of protest to BOCES and the District of their "inclusion in or exclusion from such list" prior to the effective date of the change.

If BOCES received any such protests, it had 10 days within which to review the protest, consult with the District and notify the employee of the determination regarding such protests. That determination would be “a final administrative determination,” whereupon the District would then be required to determine which employees on the list were necessary to be transferred by considering the relevant statutory criteria as well as whether BOCES had sufficient staff to provide the transferred services. Employees not so transferred would have their names placed on a preferred list for the same or similar positions at both the District and BOCES in accordance with §§80 and 80-A of the Civil Service Law.

Noting that when analyzing the statute of limitations question the court must consider the purpose of the statute, in this instance to protect the employment rights of public employees, and the mandatory nature of the statute's procedural requirements. “Ignoring the statutory procedure” said the court, “would deprive public employees of the protection of the statute and reward public employers by giving them the advantage of a shorter statute of limitations for challenges when they fail to perform their statutory obligations. This we cannot countenance.”

Considering the series of events in Thornton’s situation, the Appellate Division concluded that her Article 78 petition was timely and the District's statute of limitations defense must be rejected. In a footnote to its decision the court indicated that “Although the statute of limitations determination is intertwined with the merits of the petition, under the procedural posture of this case, we may consider factual affidavits when addressing the statute of limitations defense even though it might not be proper to consider those affidavits to decide the merits at this time.”

* In addition, the provisions of §§80 and 80-a of the Civil Service Law would be triggered if any employee would be laid off as the result of the abolisement of a position.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07046.htm

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A legal opinion by a municipal attorney is advisory

A legal opinion by a municipal attorney is advisory
Comptroller of the City of New York v Department of Fin. of the City of New York, 2014 NY Slip Op 24309, Supreme Court, New York County

In this special proceeding, the Comptroller of the City of New York [the Comptroller] asked Supreme Court to compel the City’s Department of Finance (DOF) to honor a subpoena served on it by the Comptroller. DOF responded by asking the court to quash the subpoena.

The Comptroller had served DOF with a subpoena seeking documents and testimony in connection with an audit that was being conducted by his office. The subpoena was accompanied by a proposed confidentiality agreement.

DOF told the Comptroller that it would not comply with the subpoena, citing an opinion of the City’s Corporation Counsel, Opinion 10-91, in which the then Corporation Counsel concluded that "the [State’s] tax secrecy laws prevent [the DOF] from producing the subpoenaed documents [involving tax information] and giving testimony with respect thereto."

The Corporation Counsel had opined in Opinion 10-91 that the City Charter, as a local law, could not satisfy the "as otherwise provided by law" exception to tax secrecy, reasoning that the relevant sections of State Law must be construed as a controlling state law and so a local law such as the City Charter could not be a "law" within the meaning of the phrase "as otherwise provided by law."

The court noted that §93(a) of the City Charter authorizes the Comptroller to advise the Mayor and City Council "on the financial condition of the [C]ity or any phase thereof and make such recommendations, comments and criticisms in regard to the operations, fiscal policies and financial transactions of the [C]ity as he or she may deem advisable in the public interest." Also, §93(c) of the Charter, in pertinent part, provides that: the Comptroller “shall be entitled to obtain access to agency records required by law to be kept confidential, other than records which are protected by the privileges for attorney-client communications, attorney work products, or material prepared for litigation, upon a representation by the comptroller that necessary and appropriate steps will be taken to protect the confidentiality of such records.”*

The court granted the Comptroller’s petition, denying DOF’s counterclaim, explaining that while DOF relies on Opinion 10-91 in asserting that it cannot turn over such returns to the Comptroller, that opinion has no precedential value.

Citing Slevin v Siegel, 65 Misc 2d 3, the court said that "[A] legal opinion by a municipal attorney is purely advisory and, right or wrong, it is the opinion of the issuing attorney."** Further, said the court, “To hold the Comptroller ‘bound by all opinions of the Corporation Counsel would . . . be unwise as a matter of public policy [and] would elevate the Corporation Counsel … to a position of supremacy among  …  officials,’" citing Matter of City of New York (Beame), a New York Supreme Court decision reported in the New York Law Journal dated December 3, 1970.

In support of its ruling, Supreme Court noted the decision handed down in “McCall v Barrios-Paoli, 93 NY2d 99 (1999), a case cited by the Comptroller as supporting the Comptroller's position that he should be permitted to obtain the tax information requested.” The court noted that, as dicta,*** in McCall the Court of Appeals commented "the City concedes that the State Comptroller is authorized to conduct financial audits of City agencies - - a duty similarly assigned by the City Charter to the City Comptroller."

* In addition to the ability to audit city agencies pursuant to §93(c), the Comptroller has the "power to audit and investigate all matters relating to or affecting the finances of the [C]ity, including without limitation the … receipt and expenditure of [C]ity funds . . . and to take the testimony under oath of such persons as the comptroller may deem necessary." [see New York City Charter § 93(b)]. The power to take testimony pursuant to §93(b) includes the power to subpoena documents. [see New York World's Fair 1964-1965 Corp. v Beame, 22 AD2d 611].  

** Similarly, in Matter of Nelson v New York State Civ. Serv. Commn., 46 A.D.2d 132, affd. 63 N.Y.2d 802, the Appellate Division said “In reaching this conclusion, we are not unmindful that an opinion of the Attorney-General is usually accorded great deference but we are not bound by an erroneous interpretation of law.”

*** The term “dicta” is used to describe that part of a judicial opinion that is a comment by the court that does not directly address the specifics of the case being decided but may prove helpful to the reader.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_24309.htm

 

Employee improperly suspended without pay beyond the period permitted by Civil Service Law §75(3) credited with member service in a public retirement system

Employee improperly suspended without pay beyond the period permitted by Civil Service Law §75(3) credited with member service in a public retirement system
Battisti v City of New York, 2014 NY Slip Op 07065, Appellate Division, First Department

Anthony Battistiwas found guilty of misconduct after a disciplinary hearing and terminated from his employment with the New York City Police Department [NYPD]. He appealed NYPD’s determination and asked Supreme Court to [1] vacate the disciplinary action and [2] direct that NYPD “credit [him] with certain days withheld from the calculation of his service for pension purposes.”

Supreme Court transferred so much of Battisti’s petition that challenged the disciplinary determination to the Appellate Division and denied that part of Battisti’s petition that sought an order directing that he be credited with “certain days withheld from the calculation of his service for pension purposes.”

With respect to Battisti’s challenge to the disciplinary hearing proceeding, the Appellate Division held that “Substantial evidence supports the findings of the Assistant Deputy Commissioner for Trials that [Battisti] was guilty of the proffered charges,….”*

Addressing Battisti’s claims with respect his entitlement to member service credit in the retirement system, the court noted that in the course of the Battisti’ disciplinary action he was suspended without pay for a total of 99 days.

The initial 30-day suspension followed disciplinary charges that alleged that he had "knowingly associated with …. an individual reasonably believed to have engaged in criminal activity.” A second 69-day suspension without pay followed after the disciplinary charges were amended based on criminal charges filed against him as a result of an arrest in another jurisdiction.

Battisti argued that because Civil Service Law §75(3-a), as well as Administrative Code of City of NY §14-115, cap suspensions without pay of public employees awaiting hearing and determination of disciplinary charges at 30 days, he is entitled to be credited with 69 days of member service credit and thus is eligible for a retirement allowance based on his total member service.

NYPD’s answer on this point indicated that it had issued a check to Battisti reflecting its internal determination that he had been improperly suspended without pay for 39 days and was entitled to compensation for those days. This left just 60 days of suspension without pay. Further, said the Appellate Division, NYPD did not dispute the fact that all days for which a member of NYPD is paid are to be included in the calculation of time for purposes of all benefits, including pension.

The Appellate Division concluded that, assuming arguendo, that the NYPD properly suspended petitioner without pay for two 30-day periods based on distinct offenses resulting in 60 days of suspension without pay, based on NYPD's calculations it appears that Battisti had completed twenty years of creditable service as of the effective date of his termination.

Finding that NYPD had not set forth any legal basis for its subsequent internal determination to treat nine of the 39 days that had been credited to Battisti as suspensions without pay, notwithstanding the limit set by Civil Service Law §75(3-a), the Appellate Division ruled that “[a]bsent such explanation for excluding the nine days from the calculation of creditable service, the determination to deny [Battisti] a pension was arbitrary and capricious in that it was taken "without regard to the facts."

*The court said that Battisti’s“arguments concerning [a witness’s] credibility and motive to lie at the [disciplinary] hearing are beyond the review of this Court,” citing, Berenhaus v Ward, 70 NY2d 436.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07065.htm

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