Governor Cuomo announces new administrative appointments

Governor Cuomo announces new administrative appointments

Source: Office of the Governor

On October 26, 2015 Governor Andrew M. Cuomo announced the following appointments and recommendations for appointment to the entities indicated.

Benjamin W. Lawsky has been recommended to the City of New Yorkfor appointment as Director of the Trust for Governor’s Island. Mr. Lawsky is currently the Chief Executive Officer of The Lawsky Group, a firm that specializes in helping companies, boards, and individuals manage their most complex, emergent and dynamic challenges. From 2011-2015, Mr. Lawsky was New York State’s Superintendent of Financial Services. Prior to serving as Superintendent of Financial Services, Mr. Lawsky was Governor Cuomo’s Chief of Staff, and before that a senior aide in the New York State Attorney General’s Office. Previously, Mr. Lawsky spent more than five years as an Assistant United States Attorney in the Southern District of New York. He began his career as Chief Counsel to Senator Charles Schumer on the Senate Judiciary Committee and as a Trial Attorney in the Civil Division of the Department of Justice. Mr. Lawsky is a graduate of Columbia Collegeand Columbia Law School.

Josh Vlasto has been appointed as the Governor’s designee to the Cornell University Board of Trustees. Mr. Vlasto is currently a vice president at MacAndrews & Forbes Incorporated. Mr. Vlasto previously served as Chief of Staff to Governor Cuomo and prior to that Deputy Communications Director. From 2004 to 2010, Mr. Vlasto worked for U.S. Senator Charles E. Schumer, first as Legislative Aide for transportation and homeland security and then Press Secretary 2007 to 2010. Mr. Vlasto graduated from the Cornell University School of Industrial and Labor Relations in 2004.

Matthew Wing has been recommended to Empire State Development Corporation for appointment as Director of the Brooklyn Bridge Park Development Corporation. Mr. Wing is currently the Northeast Communications Lead for Uber where he runs communications for its New Jersey, New York and Connecticut Markets. Prior to joining Uber, Wing served as Governor Cuomo's Press Secretary in his first term and as communications director for his re-election campaign in 2014. Prior to that he served as Communications Director and Deputy Advocate for Communications to then Public Advocate Bill de Blasio. He also briefly worked in the City Council, for the national labor federation Change to Win in support of Barack Obama's 2008 campaign, in the New York Attorney General's Office under then Attorney General Andrew Cuomo and was a Roth Fellow in the New York State Senate. He has a B.A. from Bard College.

Mark Colón has been appointed President and Deputy Commissioner of the Office of Housing Preservation at New York State Homes and Community Renewal (HCR), after having served as HCR's Deputy Counsel since 2008. Previously, Mr. Colon practiced law as an Associate at Dechert LLP and at Simpson Thacher & Bartlett LLP. Mr. Colon has also clerked for the Honorable Julio M. Fuentes, Third Circuit, U.S. Court of Appeals. He holds a B.A. from Hunter Collegeand a J.D. from Yale Law School, where he was the Managing Editor of the Yale Law and Policy Review.

Nora Yates has been appointed Assistant Deputy Secretary for Human Services. Previously, Ms. Yates served as the Director of the Community, Opportunity & Reinvestment (“CORe”) initiative, which was launched by Governor Cuomo in his 2013 State of the State agenda to enhance the well-being of communities and ensure that all New Yorkers have the opportunity to thrive in a safe and stable community, from a supported childhood to a productive adulthood. Ms. Yates joined the administration as an Empire State Fellow in the Executive Chamber and before the Fellowship, she served as Executive Director of the Pride Centerof the Capital Region and Field Director for the Empire State Pride Agenda, in Albany. Ms. Yates earned an M.S. in Public Administration from Sage Graduate School, and an M.A. and B.A. from the University at Albany.

Benjamin Voce-Gardner has been appointed Assistant Secretary for Public Safety for the Executive Chamber. Previously, Mr. Voce-Gardner served as a Litigation Associate at Zuckerman Spaeder LLP and as an Appellate Prosecutor in the United States Navy's Judge Advocate General's Corps. While in the Navy, he also held positions as Law Clerk for the Navy-Marine Corps Court of Criminal Appeals, and as a Trial Defense Attorney in San Diego. In 2008 he deployed to Baghdad, Iraqin support of Operation Iraqi Freedom. Mr. Voce-Gardner holds a J.D. from Boston College Law Schooland a B.A. from Connecticut College.

Colin Brennan has been appointed Press Officer for the Executive Chamber. Mr. Brennan previously worked as a Public Information Officer at the New York State Department of Health and Communications Manager at the New York State Thruway Authority. Mr. Brennan has a B.A. from the University at Albany.

Camonghne Felix has been appointed Speechwriter for the Executive Chamber. Ms. Felix has written for Teen Vogue since March 2015 and has been published by Huffington Post, Poetry Magazine and other publications. She's served as a mentor and facilitator for Urban World NYC since November 2014. Her previous experience includes work as a curriculum specialist with the Harlem Children’s Zone, work as a Campaign Lead at DoSomething.org, and as a research associate and speechwriter for the campaign of Assemblyman Michael Blake. Ms. Felix is pursuing an M.A. in Arts Politics from New York University.

Standards used by courts in evaluating the denial of a Freedom of Information request for public records

Standards used by courts in evaluating the denial of a Freedom of Information request for public records

Hearst Corp. v New York State Police, 2015 NY Slip Op 07729, Appellate Division, Third Department

The Hearst Corporation, publisher the Albany Times Union and one of its reporters,  Brendon Lyons, [Hearst] submitted a request to the NYS Division of State Police [DSP] pursuant to the Freedom of Information Law [FOIL] for the disclosure of all records relating to an alleged hit-and-run incident committed by an off-duty State Trooper.

  

DSP denied the request and after Hearst had exhausted its administrative remedies it filed a CPLR Article 78 proceeding seeking a judgment directing DSP to turn over the requested records, as well as costs and counsel fees.

Following the resolution of some procedural issues Supreme Court held a hearing at which DSP’s FOIL officer, by affidavit, set out the categories of records pertaining to the alleged incident, all of which, according to him, were collected or produced in an internal investigation by DSP pursuant to 9 NYCRR 479, Disciplinary Action.

Supreme Court did not review these records in camera* but found that all of the identified records were exempt from disclosure pursuant to Civil Rights Law §50-a (1) and dismissed the petition on that basis. Hearst appealed the Supreme Court’s ruling.

The Appellate Division set out the following standards regarding a public agency’s response to a FOIL request:

1. "[P]ursuant to FOIL's general mission, which is to promote open government and public accountability, a government agency must make its records available to the public unless an exemption expressly provides otherwise."**

2. "[E]xemptions are to be narrowly interpreted so that the public is granted maximum access to the records of government" and, thus, the party opposing disclosure bears the burden of establishing that the requested information "fall[s] squarely within a statutory exemption."

Noting that Civil Rights Law §50-a (1) exempts from disclosure the "personnel records" of police officers that are "used to evaluate performance toward continued employment or promotion," the Appellate Division rejected Hearst’s contention that information created or collected pursuant to a misconduct investigation is not protected by Civil Rights Law §50-a(1) unless agency can establish that it was thereafter actually relied on in a decision-making process related to the relevant officer's continued employment or promotion and “[p]roof that information was generated for the purpose of assessing an employee's alleged misconduct brings that information within the protection of Civil Rights Law §50-a(1).”

However, the Appellate Division continued, because uncontested evidence established that DSP’s investigation of the Trooper continued after he had resigned as an employee of DSP, the court said it agreed with Hearst that police departments who investigate persons who are no longer their employees are not conducting investigations of "personnel" within the meaning of Civil Rights Law §50-a(1).

The plain meaning of the word personnel identifies individuals with some current employment relationship with an organization, as confirmed by Civil Rights Law §50-a(1) as individuals who are not current employees cannot be considered for either "continued employment or promotion." The Appellate Division found that “Supreme Court erred in finding that [DSP met its burden of establishing that the materials resulting from its investigation after [the Trooper] had resigned were for the purpose of assessing his continued employment or promotion and that, as a result, Civil Rights Law §50-a(1) provided confidentiality to such materials.”

However, said the court, it was unable to address DSP’s alternative arguments for affirmance of the Supreme Court’s granting its motion to dismiss based on “additional exceptions to FOIL respectively apply to some or all of the requested information” as those materials are not within the record for the Appellate Division’s in camera review.

Accordingly, the Appellate Division remitted the matter to Supreme Court for its consideration of such arguments after an in camera review of the materials identified by DSP related to Hearst’sFOIL request.

* The term “in camera” refers to a closed and private session of a court or some other tribunal. As used here, it refers to the review of the documents in question by the court in his or her chambers, the public being excluded from that proceeding.

** 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. A FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the information. 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. Examples of New York statutes barring the release of a public record: Education Law, §1127 - Confidentiality of records and §33.13, Mental Hygiene Law - Clinical records; confidentiality of.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07729.htm

Selected Reports issued by the Office of the State Comptroller during the week ending October 24, 2015

Selected Reports issued by the Office of the State Comptroller during the week ending October 24, 2015

Click on text highlighted in color to access the full report

Municipal Audits released:
 

Forestburgh Fire District – Financial activities

http://www.osc.state.ny.us/localgov/audits/firedists/2015/forestburgh.pdf?utm_source=weeklynews20151025&utm_medium=email&utm_campaign=102115release

City of Glen Cove – Budget review

http://www.osc.state.ny.us/localgov/audits/cities/2015/glencove_br.pdf?utm_source=weeklynews20151025&utm_medium=email&utm_campaign=102115release

Spencer Volunteer Fire Company – Apparent misappropriation of funds

http://www.osc.state.ny.us/localgov/audits/firedists/2015/spencervolunteer.pdf?utm_source=weeklynews20151025&utm_medium=email&utm_campaign=102115release

Watervliet Housing Authority – Time and leave keeping records

http://www.osc.state.ny.us/localgov/audits/publicauth/2015/watervliethousing.pdf?utm_source=weeklynews20151025&utm_medium=email&utm_campaign=102115release

School Audits released:

Capital Region BOCES– Claims auditing

http://www.osc.state.ny.us/localgov/audits/schools/2015/capitalregionboces.pdf?utm_source=weeklynews20151025&utm_medium=email&utm_campaign=102115arelease

Skaneateles Central School District – Records and reports

http://www.osc.state.ny.us/localgov/audits/schools/2015/skaneateles.pdf?utm_source=weeklynews20151025&utm_medium=email&utm_campaign=102115arelease

Tuckahoe Union Free School District– Financial condition and information technology 

http://www.osc.state.ny.us/localgov/audits/schools/2015/tuckahoe.pdf?utm_source=weeklynews20151025&utm_medium=email&utm_campaign=102115arelease

Non-profit executive involved in six-year theft scheme convicted

Comptroller Thomas P. DiNapoli, Attorney General Eric T. Schneiderman and New York City Department of Investigation (NYC DOI) Commissioner Mark Peters announced the conviction of a nonprofit executive accused of pocketing taxpayer dollars intended for public services and capital improvements in New York City. A multi-agency joint investigation, including NYC DOI and two federal agencies, exposed the theft of approximately $300,000 in public funds provided by New York state, the New York City Council, and federal earmark grants. A jury convicted Dorothy Ogundu on 29 counts, including Grand Larceny in the Second Degree, and she faces up to 15 years in prison.
http://www.osc.state.ny.us/press/releases/oct15/102315a.htm?utm_source=weeklynews20151025&utm_medium=email&utm_campaign=102315arelease

Complying with the notice requirements set out in Civil Service Law §75-b, the so-called Whistleblower Statute

Complying with the notice requirements set out in Civil Service Law §75-b, the so-called Whistleblower Statute

Tipaldo v Lynn, 2015 NY Slip Op 07698, Court of Appeals

In this "whistleblower" action, the first issue to be resolved by the Court of Appeals is whether plaintiff John Tipaldo [Tipaldo] made a good faith effort to comply with the reporting requirements of Civil Service Law §75-b(2)(b).* The court held that Tipaldo had, under the circumstances, made a good faith effort to comply with the statute.

The genesis of Tipaldo's whistleblower action was his reporting of an alleged scheme by his superiors, defendants Christopher Lynn, then-Commissioner of the New York City Department of Transportation [DOT], and Richard Malchow, then-First Deputy Commissioner of the DOT, [the Defendants] to award a signage contract to Lynn's acquaintance in violation of New York City's public bidding rules. Tipaldo was  serving as DOT's Acting Assistant Commissioner for Planning and Engineering at the time.

On November 6, 1996, a number of DOT employees, including Tipaldo, were told that certain signs had been purchased from Commissioner Lynn’s friend. Tipaldo contended that he and other employees questioned the legality of the process and the DOT employees whose signatures were required to authorize the purchase refused to sign the authorization. On November 8, the Defendants solicited bids from the public. After the delivery and installation of the signs, DOT received several lower bids compared to the $6,000 paid to Commissioner Lynn's acquaintance. The Defendants then allegedly created a backdated memorandum stating that the need for the signs was "urgent" and that the order must be placed immediately rather than go through the competitive bidding process.

Tipaldo told his immediate supervisors about the Defendants' alleged misconduct and one or two business days later Tipaldo reported the Defendants' alleged actions to the Office of the Inspector General for the DOT and requested an investigation.

Tipaldo claimed that shortly after filing his report with the Inspector General, the Defendants retaliated against him by excluding him from meetings, removing him from supervising and managing several projects, and publicly making negative comments about him. Subsequently Tipaldo was removed from his then position of Acting Assistant Commissioner for Planning and Engineering and demoted. He initiated this action in 1997 pursuant to Civil Service Law §75-b, alleging that he was retaliated against for reporting improper governmental activity. He sought “a permanent injunction, reinstatement, all lost compensation, punitive damages, attorney's fees, and costs.”

The Defendants moved for summary judgment dismissing the complaint, arguing that Tipaldo had not complied with requirements of  Civil Service Law §75-b by not reporting the allegedly wrongful actions to the appointing authority before contacting the Inspector General's office. Tipaldo cross-moved for summary judgment. **

Supreme Court granted the Defendants' motion for summary judgment, agreeing with the Defendants that Tipaldo failed to state a cause of action by not reporting the Defendants' alleged misconduct to an appointing authority. 

Tipaldo appealed and the Appellate Division reversed the lower court’s ruling and granted Tipaldo's motion for summary judgment, stating, "[t]here is no dispute that retaliatory actions were taken against plaintiff, and although a cause of action pursuant to the subject statute requires plaintiff to have first reported the alleged violation to the internal [DOT] 'appointing authority,' here, that was defendants." The court determined that "plaintiff's good faith efforts in the manner and filing of his reporting, first informally to his immediate supervisors, and then soon thereafter to the [DOI], satisfactorily met the requirements of Civil Service Law §75-b (2)."

Ultimately the Court of Appeals affirmed the Appellate Division’s ruling, explaining that as the appointing authorities were Lynn and Malchow, Tipaldo “understandably did not report their alleged misconduct to them.” The court commented that the “scheme in which Lynn and Malchow purportedly engaged was quite deliberate. After entering into a contract with Lynn's acquaintance for the signs, they allegedly attempted to cover their tracks by publishing a notice seeking public bids and later releasing a memorandum stating that an immediate need for the signs required bypassing the normal bidding process. Thus, Lynn and Malchow would not likely have been receptive to plaintiff's complaints or reported themselves to the Department of Investigation.”*** 

The decision continues: “Under these particular circumstances, strict compliance with the reporting requirements of Civil Service Law § 75-b would not serve the purpose of the statute. Rather, courts should use their discretion in determining whether the overall actions of the plaintiff constitute a good faith effort to report the misconduct. In cases such as this — where the appointing authority is the one engaging in the alleged misconduct — an employee's good faith effort to report the misconduct should be evaluated with attention to the employee's practical inability to report to the appointing authority. The 'good faith' provision in the statute affords courts the discretion to determine whether a plaintiff has met its requirements and appears to adequately account for situations like the one presented here.”

The Court of Appeals held that:

[1] Tipaldo complied with the statutory reporting requirement by informing his immediate supervisors of the misconduct and thereafter reporting the misconduct to the DOT Inspector General;

[2] Whistleblowing is encouraged to prevent employer misconduct and provide appropriate remedies when it occurs; and

[3] Employees in situations like Tipaldo's should not be required to report to the appointing authority where such a report would prove impractical and possibly impede prompt resolution of the matter.

Finally, the court observed that “In view of the requirement, set forth in both New York City Mayoral Executive Order No. 16[3][d] and the DOT employee handbook, that employees such as Tipaldo disclose misconduct to the DOT Inspector General directly and without undue haste or face possible termination of their employment, we cannot say that Tipaldo lacked 'good faith' in reporting to his immediate supervisors only one or two business days before he reported his allegations to the DOT Inspector General.”

Affirming the Appellate Division's ruling, Court of Appeals said that given the conditions Tipaldo was facing, an overall view of his actions demonstrates good faith compliance with Civil Service Law §75-b..

* A second issued considered by the Court of Appeals: is prejudgment interest is available under Civil Service Law §75-b and Labor Law §740 (5)? The court held that prejudgment interest is available in actions of this kind.

** In the course of this litigation the Inspector General issued his determination, following an investigation, concluding that Tipaldo "suffered an adverse personnel action taken in retaliation for his having reported to the [DOI] information concerning conduct which he knew or reasonably believed to involve an abuse of authority on the part of another City official." The report recommended that Tipaldo be reinstated to his former position or a comparable position. Defendants initially declined to reinstate Tipaldo, but later issued an order of compromise offering to reinstate him to a comparable position with back pay and benefits, which offer Tipaldo rejected.

*** The Defendants conceded that there was no duly designated individual to whom Tipaldo could have reported his allegations.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07698.htm

Abolishing a position in the public service and the Doctrine of Legislative Equivalency

Abolishing a position in the public service and the Doctrine of Legislative Equivalency

Colabella v Town of Eastchester, 2015 NY Slip Op 07656, Appellate Division, Second Department

Citing Wipfler v Klebes, 284 NY 248, the Appellate Division said that “a public employer may abolish a civil service position when the ‘discontinuance of the position would promote efficiency and economy,’ provided that the employer acts in good faith.”*

In contrast, a public employer may not abolish a position as a subterfuge to avoid statutory or contractual protection afforded civil servants before they are discharged. However, in the event a public employer has abolished a position, an employee challenging that determination has the burden of proving that the employer engaged in a bad faith effort to circumvent the Civil Service Law.

In this action the petitioner, Antonietta Colabellachallenged a determination of the Town Board of the Town of Eastchester [Town] abolishing her full-time civil service position as a parking enforcement officer. It was undisputed that in 2011 the Town appointed four new part-time parking enforcement officers. The decisions states that these part-time employees, presumably appointed to positions jurisdictionally classified as positions in the noncompetitive class, were not represented by an employee organization. Colabella’sposition was abolished on January 1, 2012.

The Appellate Division said that “it is undisputed that four new part-time parking enforcement officers were hired in 2011; one of those employees was hired in October 2011” only a month before Colabellawas informed that her position would likely be abolished. 

The decision indicates that the Town failed to submit any evidence as to whether the decision to abolish Colabella’s position was made by Town Board resolution, or by some other means.

Applying the Doctrine of Legislative Equivalency, the Appellate Division said that a  position "created by a legislative act can only be abolished by a correlative legislative act," citing Torre v County of Nassau, 86 NY2d 421. In this instance the court found that the record did not indicate the specific mechanism by which Colabella’s position was abolished and while the Town submitted some evidence showing that it undertook various cost-cutting measures in connection with its 2012 budget, “the record contains no evidence as to any legislative or other deliberations underlying the determination at issue here” -- the abolishment of the position encumbered by Colabells.

Under these circumstances, the Appellate Division held that [1] the evidence raised issues of fact warranting a hearing as to whether Colabella’s position was abolished in a bad faith effort to circumvent the Civil Service Law, and [2] whether her position was abolished in conformity with the Doctrine of Legislative Equivalency."

On another point, the Town contended that Colabella could not “properly raise claims regarding alleged violations of the Taylor Law or as to certain job classification determinations made by the Westchester County Department of Human Resources.” However, said the court, Colabella did not make any such claims in her petition and thus "was not required to exhaust administrative remedies prior to bringing this proceeding, as this case does not involve a matter within the scope of the grievance provisions of the applicable collective bargaining agreement.”

* The Attorney General has opined that there must be an actual abolishment of the position in question in contrast to merely “creating a vacancy as the result of a layoff” in order to trigger the relevant statutory layoff procedures [1976 Opinions of the Attorney General 7].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07656.htm

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