An entity claiming that it is not subject to the State’s Freedom of Information Law has the burden to provide documentary evidence that conclusively establishes such a defense as a matter of law

An entity claiming that it is not subject to the State’s Freedom of Information Law has the burden to provide documentary evidence that conclusively establishes such a defense as a matter of law

Nassau Community Coll. Fedn. of Teachers, Local 3150 v Nassau Community Coll., 2015 NY Slip Op 02972, Appellate Division, Second Department

The Nassau County Community College Foundation [Foundation] denied Nassau Community College Federation of Teachers, Local 3150’s [Local 3150] request for certain information pursuant to the Freedom of Information Law [FOIL], Public Officers Law, Article 6. Foundation contended that it “is not a governmental agency and, therefore, is not subject to FOIL”.

In response to Local 3150’s Article 78 petition, Foundation moved to dismiss the petition insofar as it was  asserted against it. Supreme Court granted Foundation's motion but the Appellate Division reversed the lower court’s ruling and reinstated Local 3050’s petition insofar as asserted against the Foundation.

What is an “agency?” The Appellate Division said that an "agency" is "any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature," citing Public Officers Law §86[3].

The court then noted that Nassau Community College [College] is a public college, chartered under Education Law Article 126, sponsored and partially funded by Nassau County, and Foundation is a not-for-profit corporation created in 1979 to support the College's mission.

The Appellate Division explained that FOIL "was enacted to promote open government and public accountability and imposes a broad duty on government to make its records available to the public" and all "public agencies" are subject to FOIL,” citing Perez v City University of New York, 5 NY3d 522.

As to Foundation’s motion to dismiss Local 3150’s petition with respect to it, the Appellate Division said that Foundation had the burden to provide documentary evidence that "utterly refute[d] [Local 3150’s] factual allegations, conclusively establishing a defense as a matter of law.

Foundation failed to meet this burden, said the court, as it did not establish that it lacks the attributes of a public entity. Accordingly, Foundation was deemed a public agency and Supreme Court should have denied Foundation’s motion to dismiss Local 3150’s petition insofar as asserted against it.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02972.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending April 11, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending April 11, 2015

Click on text highlighted in color to access the full report

Audits of political subdivisions of the State recently audited:

 Town of Blooming Grove,

 Village of Cayuga Heights,

 Greenville Fire District #1,

 Hauppauge Fire District,

 Village of Holley,

 Town of Olean Fire Company No. 1 and the

 Plattsburgh Public Library.

Buffalo City Schools employee found to be simultaneously working in a second job

A Buffalo City School District technician pleaded guilty Thursday in Erie County Court after admitting he worked for a second school district at the same time before his scam was discovered by State Comptroller Thomas P. DiNapoli’s office.

http://www.osc.state.ny.us/press/releases/apr15/040915a.htm?utm_source=weeklynews20150412&utm_medium=email&utm_campaign=040915arelease

Comptroller finds almost 700 public authorities operate with little oversight and transparency About 675 local authorities operate in New York state and provide a host of important services to citizens. However, the 639 authorities operating outside of New York City employ more than 4,300 employees, report approximately $1.5 billion in spending and $18 billion in outstanding debt, and operate with little oversight.

http://www.osc.state.ny.us/press/releases/apr15/040915.htm?utm_source=weeklynews20150412&utm_medium=email&utm_campaign=040915release

New appointments to Governor Cuomo’s administration

New appointments to Governor Cuomo’s administration

Source: Office of the Governor

Governor Andrew M. Cuomo recently announced the following eight appointments to his administration.

Matthew Driscoll will be nominated to serve as Commissioner of the Department of Transportation. Mr. Driscoll previously served as President and CEO of the New York State Environmental Facilities Corporation, where he implemented new business models which have resulted in record-setting investments in New York State’s clean water infrastructure. Mr. Driscoll has also held a number of cabinet positions in Governor Cuomo’s administration, including Co-Chair of the New York State Storm Recovery Task Force, member of the Strategic Implementation Assessment Team to assist in the progress of the Regional Economic Development Council, and board member of the Financial Restructuring Board, which delivers targeted restructuring solutions to assist New York municipalities under fiscal stress. Prior to these roles, Mr. Driscoll was twice elected mayor of the City of Syracuse. As Mayor, Mr. Driscoll’s action plan for energy conservation, sustainability initiatives and environmental protection efforts earned Syracuse national recognition. He also instituted a performance-based accountability program for city government, called SyraStat, which saved millions of dollars for city taxpayers. Mr. Driscoll’s nomination will require Senate confirmation.

Ron Thaniel has been appointed Deputy Secretary for Transportation. Mr. Thaniel has nearly two decades of transportation experience at federal, state, local and international levels on investments needed to rebuild and modernize transportation infrastructure. He previously served as Founder and Principal of Thaniel Government Relations LLC, a transportation consulting firm. Prior to that, Mr. Thaniel was Executive Director of the National Association of City Transportation Officials in New York, where he advised city transportation commissioners on the federal reauthorization for highway and transit programs. Mr. Thaniel served as Assistant Executive Director for The United States Conference of Mayors in Washington, D.C. from 2002 to 2007 and again from 2008 to 2011, where he led transportation policy and represented mayors before Congress and federal agencies and before international organizations and governments. Mr. Thaniel was also Director of Government Affairs – Northeast United States for Amtrak and was transportation aide to former Minneapolis Mayor Sharon Sayles Belton. Featured by Governing Magazine as “The Man Behind U.S. Transportation’s Future,” Mr. Thaniel has served on executive committees of numerous national transportation organizations, and is a member of the Washington, D.C. transportation think tank Eno Center for Transportation Policy. Mr. Thaniel has a B.A. from Morgan State University and an M.P.A. from Hamline University.

Karen Rae has been appointed Senior Advisor for Innovative Project Delivery for Empire State Development. Ms. Rae, a nationally-recognized transportation expert with over 35 years of related experience, previously served as Governor Cuomo’s Deputy Secretary for Transportation, a position she held since 2011. In this role, she oversaw and coordinated budget, policy and the Governor’s initiatives within the transportation portfolio, including the New York State Department of Transportation, New York State Thruway/Canals corporation, MTA, Department of Motor Vehicles, Port Authority of NY/NJ and New York State Bridge Authority. She has been directly involved in representing Governor Cuomo during the passage of New York State’s first Design/Build legislation, coordinating transportation agencies efforts to expedite environmental review and procurement of the project. Before joining the Cuomo Administration, Ms. Rae served as Deputy Administrator of the Federal Railroad Administration in the Obama Administration, where she managed the federal high speed rail initiative and developed national freight and passenger rail policy. Prior to this role, Ms. Rae was Deputy Commissioner of Policy and Planning at the New York State Department of Transportation and, prior, Director of the Virginia Department of Rail and Public Transportation, leading the effort to successfully negotiate a public/private partnership agreement and securing authorization to advance the Dulles Rail Project. Ms. Rae was named WTS International Woman of the Year in 2010. She has a B.S. from East Stroudsburg State College.

Lola W. Brabham has been appointed Executive Deputy Commissioner of the Department of Civil Service. Previously, Ms. Brabham served as Deputy Commissioner for Administration and Chief and Financial Officer for the State Department of Labor and, prior, was Assistant Chief Budget Examiner for the State Division of the Budget. She was Assistant Secretary for Health, Medicaid and Oversight and Director of Human Services in the Executive Chamber under Governor David Paterson. She was also a Legislative Budget Analyst for the Assembly Committee on Ways and Means and, early in her career, was Chief of Staff to Assemblyman N. Nick Perry. Ms. Brabham has a dual B.A. in Criminal Justice and Sociology from the State University of New York and an M.P.A. from Rockefeller College of Public Affairs and Policy.

Christopher J. Schoepflin has been appointed Western New York Regional Director, Director of Special Initiatives & President of USA Niagara. Mr. Schoepflin has served as President of the Corporation since 2005 and will be gaining additional responsibilities as Regional Director and Director of Special Initiatives. He previously served as Senior Project Manager for the Corporation and, prior to his time there, worked for the Buffalo Sabres for ten years, including five as a member of the senior management team. Mr. Schoepflin has a B.S. in Business Administration from the State University of New York.

Felisa Hochheiser has been appointed Special Counsel to the President & CEO for Ethics, Risk and Compliance for Empire State Development, where she will work with ESD’s Director of Compliance and Senior Counsel for ethics. For over five years, Ms. Hochheiser served as Director of Investigative Reporting and Special Counsel in the Office of the New York State Inspector General, where she led major investigations into criminal activity and abuses of office in New York State. Prior to that, she was principal law clerk to New York State Supreme Court Justice Richard Lee Price. She was also an associate at Hochheiser & Hochheiser, LLP. Ms. Hochheiser obtained a B.A. from Barnard College, Columbia University and a J.D. from the Benjamin N. Cardozo School of Law.

Barbara Comninos Kruzansky has been appointed Special Counsel to the Commissioner for Ethics, Risk and Compliance for the Office of Children and Family Services. Ms. Kruzansky most recently served as Lawyer in Residence at Albany Law School’s Government Law Center, where she worked on priority projects for the Law School’s legal and public policy research center. She previously served as a Senior Court Attorney for the New York State Court of Appeals. Ms. Kruzansky has a B.S. from Cornell University and a J.D., summa cum laude, from Albany Law School of Union University.

Adam W. Silverman has been appointed Special Counsel to the Commissioner for Ethics, Risk and Compliance for the Department of Corrections and Community Supervision. Mr. Silverman previously served as an associate at Greenberg Traurig LLP focusing on complex civil litigation, regulatory and administrative law, governmental investigations and litigation, and media and First Amendment law. Prior to joining Greenberg Traurig LLP, he served in the New York State Attorney General’s Office as an Assistant Attorney General in the Litigation Bureau. While there, Mr. Silverman represented state agencies and their employees and was trial counsel for state employees in six different federal lawsuits. He spends his free time as a volunteer attorney at The Legal Project in Albany, NY, where he was the recipient of the Stanley A. Rosen Memorial Award for Service to Victims of Domestic Violence in 2014. Mr. Silverman has a B.A. from The George Washington University and a J.D. from Albany Law School.

A court’s review of an adverse disciplinary decision promulgated after a hearing is limited to considering whether the determination was based on substantial evidence

A court’s review of an adverse disciplinary decision promulgated after a hearing is limited to  considering whether the determination was based on substantial evidence
2015 NY Slip Op 02963, Appellate Division, Second Department;

2015 NY Slip Op 03040, Appellate Division, First Department

An employee asked the court to review a disciplinary determination by the appointing authority that had adopted the findings and recommendation of a Committee of Aldermen made after a hearing. The Committee had found the employee guilty of two charges of misconduct or insubordination. The  penalty imposed by the appointing authority: termination of employment with the jurisdiction.

The Appellate Division dismissed the employee’s Article 78 petition explaining that the standard of review in an administrative determination made after a trial-type hearing directed by law is limited to considering whether the determination was based on substantial evidence.

The court said that “it is the function of the administrative agency, not the reviewing court, to weigh the evidence, assess the credibility of witnesses, and determine which testimony to accept and which to reject.” In the event there is conflicting evidence and room for choice exists, a reviewing court may not weigh the evidence or reject the choice made by the administrative agency.

Finding that there was substantial evidence supported the determination of the appointing authority that the employee committed certain acts of misconduct or insubordination, the court sustained the appointing authority’s decision. As to the penalty imposed, dismissal, the Appellate Division said that the penalty did not constitute an abuse of discretion as a matter of law “as it was not so disproportionate to the offenses as to be shocking to one's sense of fairness,” citing Kreisler v NYC Transit Authority, 2 NY3d 775.

Similarly, the Appellate Division affirmed a decision of the New York City Commissioner of Police that found a New York City police officer guilty of various disciplinary charges and dismissed him from employment as a police officer.

The court said that substantial evidence supported the Commissioner’s findings that the officer had [1] engaged in misconduct in two separate incidents and [2] that he gave false statements to the Civilian Complaint Review Board which investigated one of the incidents.

The officer had also admitted that he failed to properly secure his off-duty firearm and that he was in possession of an unregistered weapon belonging to his brother.

Citing Berenhaus v Ward, 70 NY2d 436, the Appellate Division said “There exists no basis to disturb the credibility determinations of the Assistant Deputy Commissioner of Trials” and the penalty imposed, termination of the police officer from his position, did not shock the court’s “sense of fairness,” citing Kelly v Safir, 96 NY2d 32.

These decisions are posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02963.htm and:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03040.htm

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Public policy favors the protection of employees’ seniority rights

Public policy favors the protection of employees’ seniority rights

Appeal of Alexander and Gonzalez from action of the Board of Education of the East Ramapo Central School District, Augustina West and Dionne Olamiju regarding termination of employment. Decisions of the Commissioner of Education, Decision No. 16,731

Angela Alexander (Alexander) and Madeline Gonzalez (Gonzalez) appealed the decisions of the Board of Education of the East Ramapo Central School District (Board) to terminate their services as administrators in the course of the abolishment of certain positions. The Commissioner of Education sustained their appeals.

Alexander was granted tenure in the tenure area of “Elementary Assistant Principal,” effective August 19, 2005; Gonzalez was granted tenure in the tenure area of “Elementary Assistant Principal,” effective July 1, 2005.

During the 2011-2012 school year, the school district excessed all elementary assistant principals as well as the two least senior secondary principals, effective June 30, 2012. Alexander and Gonzalez were notified that their positions as Elementary Assistant Principals were abolished and that their employment was terminated effective June 30, 2012. Alexander and Gonzalez filed an Article 78 proceeding in Supreme Court, Rockland County, seeking a determination that they were improperly terminated from their positions as Assistant Principals. Supreme Court dismissed the petition on the grounds that the Commissioner of Education had primary jurisdiction* over the dispute.

Alexander and Gonzalez contended that they hold tenure in the broader “Assistant Principal” tenure area and that the Board wrongfully granted them tenure in the more narrow area of “Elementary Assistant Principal” without their written consent. In addition, they argued that the Board’s decision to excess principals according to their seniority using the narrower tenure area violates applicable law and that they more senior than the two individuals who were continued in service.**

Initially the Commissioner addressed the issue of timeliness of this appeal, explaining that “An unsuccessful attempt to litigate a dispute in court which does not result in a final determination on the merits may be accepted as an excuse for failing to file a timely appeal to the Commissioner when the appeal is commenced within a reasonable time after the dismissal or abandonment of the court proceeding.” As Alexander and Gonzalez had commenced this appeal within 30 days of the Supreme Court’s decision, the Commissioner ruled the appeal was timely.

Addressing the merits of the appeal, the Commissioner noted that Education Law §3013(2) provides, in pertinent part, that when a position subject to this provision is abolished, “the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.”

Although there are no clearly defined guidelines for determining the parameters of administrative tenure areas, a board of education may establish one district-wide administrative tenure area or multiple defined administrative tenure areas, the Commissioner noted that “Public policy favors the protection of employees’ seniority rights,” explaining that “As tenure areas narrow, seniority rights become less meaningful” while “As tenure areas broaden, seniority rights take on greater significance.”

Citing Steele v. Bd. of Educ. of the City of New York, 40 NY2d 456, the Commissioner said that where tenure areas have been narrowed the employer must demonstrate that it, in fact, established the narrow, specific, tenure area ‘consciously’ and ‘by design’ and that the employee has been sufficiently alerted to that fact.”

Here the Board carried the burden of proving its intention to create narrower, multiple defined tenure areas for its administrators and that Alexander and Gonzalez were sufficiently alerted to the fact. In order to establish that Alexander and Gonzalez belonged in the tenure areas claimed by the Board, the Commissioner said that Board had to show that it had “adequately demonstrated that at the time of their appointments, the two categories had “traditionally been treated separately” by the district, and that [Alexander and Gonzalez] were ‘sufficiently alerted to the fact [that] they were entering ... entirely separate and independent’ areas, apart from that of the broad ‘Assistant Principal’.”

The Board submitted an affidavit from its Assistant Superintendent of Personnel/Secondary Education and other records indicating that:

1. Since 2000, the district has granted tenure to assistant principals only in the administrative tenure areas of “Secondary Assistant Principal” and “Elementary Assistant Principal.” 

2. Prior to 2000, assistant principals were granted tenure in the following tenure areas: “High School Assistant Principal,” “Junior High School Assistant Principal” and “Elementary Assistant Principal.”

3. A May 2000 agreement between the district and the East Ramapo Building Administrators Association (ERBAA), Alexander's and Gonzalez’s recognized collective bargaining unit, whereby 11 administrative members then serving in the high school assistant principal tenure area and the junior high school assistant principal tenure area agreed to be placed in the new secondary assistant principal tenure area.  

However, said the Commissioner, the 2000 agreement “does not apply to [Alexander and Gonzalez] or the narrower tenure area of ‘Elementary Assistant Principal.’” Accordingly, the Commissioner ruled that the documentation submitted by the Board failed to demonstrate that Alexander and Gonzalez were sufficiently alerted of the district’s alleged determination not grant tenure in the “Assistant Principal” tenure area after 2000. 

Although the Board submitted a copy of a Memorandum of Understanding in which Gonzalez acknowledged she was “serving in the position of Elementary Assistant Principal” and there was an agreement to adjust her salary, the Commissioner said that “nowhere in this document does Gonzalez consent to serving in the ‘Elementary Assistant Principal tenure area’, which is the issue in this case” and that this documentation was “unpersuasive to demonstrate Gonzalez’s consent to change tenure areas."

Viewing the totality of the evidence presented, the Commissioner held that the Board’s actions fail to support a determination that, upon hiring, Alexander or Gonzalez were either apprised that their tenure area would be the “Elementary Assistant Principal” tenure area, or that they acquiesced to placement within a new tenure area. Tenure areas, said the Commissioner, are fixed at the time a person is appointed and cannot be applied retroactively without the person’s consent.  

Noting that the record clearly indicates that Alexander and Gonzalez were appointed to probationary positions in the “Assistant Principal” tenure area the Commissioner said that although Board’s minutes and Notices of Tenure served on Alexander and Gonzalez state that each was appointed to tenure in the “Elementary Assistant Principal” tenure area, the Board has not met its burden of demonstrating that Alexander and Gonzalez were sufficiently alerted to their appointment in the “Elementary Assistant Principal” tenure area at the time of appointment or that they consented to a change in tenure area after such appointment.  

Thus, in abolishing the elementary assistant principal positions, the Board was required to excess the administrator(s) “having the least seniority in the system within the tenure of the position abolished”

The Commissioner then remanded the matter to the Board for a determination of Alexander's and Gonzalez’s seniority rights in the assistant principal tenure area and, based on such seniority, their right to reinstatement in the district as assistant principals on July 1, 2012, in accordance with this decision, including whether Alexander and Gonzalez are entitled to be restored to tenured positions as an “Assistant Principal”, “effective July 1, 2012, with back pay and retroactive benefits.”

* The doctrine of primary jurisdiction provides that where the courts and an administrative agency have concurrent jurisdiction over a dispute involving issues beyond the conventional experience of judges the court will stay its consideration of the matter until the relevant administrative agency has applied its expertise to the salient questions [Staatsburg Water Co. v Staatsburg Fire Dist., 72 NY2d 147].

** The School District contended that the two retained individuals were sent Notices of Tenure and of Appointment indicating that they received tenure as “Assistant Principals” but were actually tenured as Secondary Assistant Principals.

The Commissioner’s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume54/d16731

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