Seeking public records the custodian contends are exempt from disclosure within the meaning of the Freedom of Information Law

Seeking public records the custodian contends are exempt from disclosure within the meaning of the Freedom of Information Law

Spring v County of Monroe, 2016 NY Slip Op 05465, Appellate Division, Fourth Department

Todd Springinitiated an Article 78 proceeding seeking disclosure of approximately 200 documents, emails, memoranda, and reports pursuant to the Freedom of Information Law (FOIL). The Monroe County [County] custodian of the documents and records had declined to provide the material demanded, which were characterized as being “confidential records” and thus could be “exempted” under one or more of the exceptions permitted by the Freedom of Information Law.*

After conducting an in camera review of the records at issue, Supreme Court directed the County to provide Todd with several of the documents it claimed were “exempt” and County appealed the court’s decision.

The Appellate Division, notwithstanding its holding that Supreme Court erred in applying the “arbitrary and capricious standard of review” and instead should have determined whether the Records Appeal Officer's determination "was affected by an error of law,” elected to conduct a de novo review of the documents at issue.

Applying the appropriate standard with respect to the disputed documents in the “confidential record,” the Appellate Division concluded that:

1. E-mail correspondence between Spring and the "in-house" counsel for the County found in the confidential record at certain pages were exempt from FOIL disclosure as "counsel for the County represented Spring only in Spring's capacity as a County employee." Accordingly, only the County could waive the attorney-client privilege protecting the correspondence. The fact that Spring believed that he was the client was, said the court, “of no moment;”

2. E-mail correspondence found in the confidential record at certain pages between a County employee and counsel employed by the County were protected by attorney-client privilege;

3. A “draft informal dispute resolution [IDR]” request found in the confidential record at certain pages was exempt from FOIL disclosure inasmuch as it was protected by attorney-client privilege, by attorney work product privilege, and as inter-agency material pursuant to Public Officers Law §87(2)(g). The Appellate Division noted that draft IDR request "does not contain statistical or factual tabulations or data … or final agency policies or determinations but rather consisted “solely of . . . evaluations, recommendations and other subjective material and was therefore exempt from disclosure;"

4. Documents found in the confidential record at certain pages representing a "chronological explanation" of a County Human Resources investigation were exempt from disclosure by attorney-client privilege and under Public Officers Law §87(2)(g);

5. Documents found in the confidential record at certain pages were exempt from disclosure under Public Officers Law §87(2)(g) as those documents contained "opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making;" and

6. The hearing transcript found in the confidential record at certain pages constituted pre-decisional intra-agency material and was exempt from FOIL disclosure.

With respect to the remaining materials at issue, the Appellate Division said that it concluded that the County failed to show that the Freedom of Information Law permitted their exemption from disclosure.

* The release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise a FOIL request is not required as a condition precedent to obtaining public documents or 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 desired information or records. It should also be noted that other than such disclosure being prohibited by law, there is no bar to providing information pursuant to a FOIL request, or otherwise, that could otherwise be denied pursuant to one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05465.htm

Determining if an incident qualifies as an accident for the purposes determining eligibility for accidental disability retirement benefits

Determining if an incident qualifies as an accident for the purposes determining eligibility for accidental disability retirement benefits 

Sica v DiNapoli, 2016 NY Slip Op 05420, Appellate Division, Third Department

An accident, for the purposes of the Retirement and Social Security Law [RSSL], is defined as “a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact”* that “must result from an activity that is not undertaken in the performance of ordinary job duties and that is not an inherent risk of such job duties.”**

Pat Sica, a firefighter with the City of Yonkers Fire Department for approximately 17 years, was injured when he was exposed to and inhaled carbon monoxide and cyanogen chloride, both colorless and odorless gases, while responding to an emergency at a supermarket. Subsequently Sica filed an application for accidental disability retirement benefits based upon, among other things, the supermarket incident.

The Retirement System denied Sica’s application on the ground that the supermarket incident did not constitute an accident within the meaning of RSSL§363. Sica appealed the System's decision and at the administrative hearing that followed he testified that in the course of his responding the medical emergency call from a local supermarket reporting an individual experiencing difficulty with breathing:

[1] he was directed to the walk-in freezer located at the back of the supermarket where he discovered two unconscious individuals:

[2] he provided cardiopulmonary resuscitation and breathing assistance to the unconscious victim inside the freezer until an ambulance crew arrived to assist;

[3] he had not smelled, heard, or saw anything that might have indicated that chemical gases or fumes were involved in the medical emergency; and

[4] he did not learn that chemical gases were present at the scene until he himself was transported to a hospital for medical evaluation.

The Hearing Officer concluded that the incident was an accident within the meaning of the RSSL as "[t]he combination of unforeseeable and exigent circumstances made it virtually impossible for [Sica] to recognize the danger." The Comptroller, however, ultimately sustained the initial denial of Sica's application for accidental disability retirement. Sica then commenced an Article 78 proceeding challenging the Comptroller's determination.

In analyzing Sica’s appeal of the Comptroller’s decision, the Appellate Division said:

[1] An applicant for accidental disability retirement benefits has the burden of establishing that the event producing the injury was an accident; and 

[2] The Comptroller's decision denying the application for accidental disability retirement benefits will be upheld where it is supported by substantial evidence. 

Here, however, the Appellate Division found that the Comptroller’s determination that the incident was not an accident for the purposes of eligibility for accidental disability retirement benefits was not supported by substantial evidence in the record before it.  

The court explained that it has "held that exposure to toxic fumes while fighting firesis an inherent risk of a firefighter's regular duties." In Sica’s situation, however, unlike its consideration of prior cases involving exposure to toxic gases or smoke, the Appellate Division noted that Sica was not responding to a fire that presented the inherent and foreseeable risk of inhaling toxic gases.

The record indicates that Sica “was neither aware that the air within the supermarket contained toxic chemical gases … nor did he have any information that could reasonably have led him to anticipate, expect or foresee the precise hazard when responding to the medical emergency at the supermarket.” 

In contrast, the Comptroller, in reversing the Hearing Officer’s determination, relied upon the job description for Sica’s position, which indicated that he was required to respond to medical emergencies and to be exposed to hazardous conditions such as fumes and toxic materials.

Relying on such a job description, said the court, “may wholly eviscerate accidental disability retirement protection for emergency responders in rescue situations,” explaining that “if a broadly written job description that requires the rescue of individuals in hazardous situations is allowed to replace a factual analysis of the particular circumstances of each incident, those who put themselves in harm's way may be left without recourse.”

Accordingly, the court opined, “Whether an incident is so ‘sudden, fortuitous . . ., unexpected [and] out of the ordinary’ … that it qualifies as an accident within the meaning of the [RSSL] remains a factual issue that should not be determined merely by reference to job descriptions.” 

Clearly the mischief in merely considering the job description is that emergency personnel will be rendered ineligible for accidental disability retirement in any rescue situation, without regard to how exigent, unexpected or unforeseeable the circumstances of their injury may be. This, said the court,  “cannot have been the Legislature's intent in establishing the accidental disability retirement program for rescue workers.”

The Appellate Division concluded that the Comptroller’s determination that Sica’s disability resulting from his exposure to carbon monoxide and cyanogen chloride while responding to a “medical emergency” did not constitute an accident within the meaning of Retirement and Social Security Law §363 was unsupported by substantial evidence in the record.

As the review of the administrative hearing and determination of Comptroller was limited to the question of whether substantial evidence in the record support such determination, the Appellate Division “declined to address in the first instance [the Comptroller’s] arguments regarding the presumption set forth by [the RSSL] §363-a or the issue of causation.”

The court, Justices McCarthy and Devine dissenting, annulled the Comptroller’s decision and remitted the matter to him “for further proceedings not inconsistent with this Court's decision.”

* See Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010

** See Matter of Schultz v DiNapoli, 137 AD3d 1454

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05420.htm

______________

The Disability Benefits E-book – 2016 Edition: This 810 page e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on http://section207.blogspot.com/

_______________

Selected reports issued by the Office of the State Comptroller during the week ending July 16, 2016

Selected reports issued by the Office of the State Comptroller during the week ending July 16, 2016

Source: Office of the State Comptroller

Click on text highlighted in color to access the entire report 

Bradford Fire Co. Treasurer Arrested for Stealing Public Funds

New York State Comptroller Thomas P. DiNapoli announced the arrest of Bradford Volunteer Fire Company Treasurer Sherry Hamilton. She was charged with grand larceny in the third degree, a class D felony, after an audit and investigation by DiNapoli’s office, working with the New York State Police and Steuben County District Attorney Brooks Baker, uncovered that Hamilton misappropriated more than $8,000 in fire company funds by allegedly taking "advance" payments on company activities and manipulating company bank accounts and records.

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse.  Individuals can report allegations of fraud involving public funds by calling the toll-free Fraud Hotline at 1-888-672-4555, by transmitting an e-mail to investigations@osc.state.ny.us, by filing a complaint online athttp://osc.state.ny.us/investigations/complaintform2.htm or by mailing a complaint to Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236.

Independent Review Finds State Pension Fund Strong, But Warns of Risks Posed by Limited Staffing

New York State Comptroller Thomas P. DiNapoli released an independent fiduciary and conflict of interest reviewof the New York State Common Retirement Fund (Fund) that commended the Fund for its strong policies and ethical management, stating that DiNapoli’s office "maintains a very high level of ethical, professional and conflict of interest standards." Funston Advisory Services, who conducted the review, repeatedly warned, however, that existing constraints on the Fund’s staffing and compensation could have current and future consequences.

Managed Care Companies Wasting Millions in State Medicaid Dollars

United HealthCare and Amerigroup, managed care organizations that contract with the Department of Health to provide health services under the state’s Medicaid program, made at least $6.6 million in improper and questionable payments to ineligible providers over a four-year period, including almost $60,000 in payments to pharmacies for medications that were prescribed by deceased doctors, according to an auditreleased by State Comptroller Thomas P. DiNapoli.

Audits of State entities released by State Comptroller DiNapoli

Port Authority of New York and New Jersey (PANYNJ): Inspecting Highway Bridges and Repairing Defects (Follow-Up) (2015-F-19)

An audit issued in May 2014 found the authority did not follow state Department of Transportation (DOT) requirements for classifying, reporting and repairing bridge defects. Instead, the PANYNJ followed its own methods and did not always comply with DOT’s requirement for an annual interim inspection if the repairs are not completed. Further, auditors noted that 10 of the 17 safety conditions sampled were not repaired for more than two years, including three which were open for five years. In a follow-up, auditors determined PANYNJ officials made progress in correcting the problems identified.

Higher Education Services Corporation: College of Westchester Tuition Assistance Program (2015-T-5)

Auditors determined that the procedures used by Westchesterofficials to certify students for state financial aid substantially complied with the governing law and regulations.

Office of General Services (OGS) and State Education Department (SED): Preferred Source Contracting (2014-S-77)

Although SED is responsible for monitoring the New York State Industries for the Disabled (NYSID) preferred source contracting program activities, it has provided only minimal oversight. As such, there is little assurance that NYSID is awarding contracts in a manner that best meets the purpose of the program, that member agencies and corporate partners are meeting contract requirements, and that the majority of the contracted work is being completed by disabled workers. Auditors also looked at the role that OGS plays in the program and found OGS is appropriately fulfilling its current responsibilities under the program. Nonetheless, auditors identified opportunities for OGS to improve its effectiveness.

From the LawBlogs – Week ending July 16, 2016

From the LawBlogs – Week ending July 16, 2016

[Internet links highlighted in color]

Posted by Justia

Prew v. Employee Ret. Sys. of City of Providence

“Petitioner, after more than fifteen years of service in the City of Providence, [Rhode Island] Police Department, was injured while on duty. The Department concluded that Petitioner’s injury interfered with her ability to handle a firearm. Later that month, Petitioner applied to the City of Providence Retirement Board for accidental-disability retirement. The Board voted to deny Petitioner’s application, finding that Petitioner’s condition was correctable with surgery and that Petitioner failed to mitigate her injury by undergoing surgery. The Supreme Court quashed the Board’s decision, holding that the Providence Code of Ordinances does not require an otherwise eligible employee to mitigate her injury by undergoing a surgical procedure in order to qualify for an accidental-disability pension. Remanded.”

N.B. Among the rulings by New York courts on the issue of "directing an employee to submit to surgery" are the following:

In Schenectady PBA v PERB, 196 A.D.2d 171, the Appellate Divisions said that General Municipal Law "§207-c evinces a legislative intent to balance a police officer's right to receive full salary and certain benefits while disabled due to an injury incurred in the line of duty, with certain rights of the employer, including the right to have the employee submit to medical and surgical treatment, and to obligate the injured officers to perform light duty if able," as §207-c expressly authorized an employer to discontinue paying benefits if the injured officer refused to accept light duty assignments or refused medical treatment.

In contrast, in Kauffman v Dolce, 216 A.D.2d 298 the critical issue concerned City of White Plains Firefighter Kauffman’s refusal to undergo surgery for a second time. The City terminated his General Municipal Law §207-a disability benefits on the ground that his refusal undergo the second surgery constituted a waiver of his right to these benefits. Supreme Court reinstated Kauffman's §207-a benefits, finding that his refusal to undergo surgery a second time was reasonable in light of the unsuccessful previous surgery and "the lack of the likelihood of success of the proposed surgery." The Appellate Division sustained the lower court's ruling, observing that the Court of Appeals' holding in Schenectady Police Benevolent Association v Public Employment Relations Board, 85 NY2d 480, that a municipality could require police officers receiving General Municipal Law 207-c benefits to undergo corrective surgery "under appropriate circumstances ... where reasonable,"  did not apply in Kauffman's situation.

A school teacher who had lost an eye as the result of an injury on the job refused to undergo eye surgery involving the other eye because of the problems which could result. Such refusal was held reasonable by the Workers' Compensation Board. When the insurance carrier appealed, the Appellate Division affirmed the Workers' Compensation Board's determination,  holding  that the Board's finding that the teacher's refusal was reasonable under the circumstances was supported by the record (Burroughs v Goshen Public Schools, 98 A.D.2d 891).

Posted by Employment Law Daily

Police officer’s racial profiling led to job loss

By David Stephanides, Esq.

A local police department was proud of its reputation for stopping alcohol- or drug-impaired drivers passing through its city, and it encouraged its officers to make a high volume of stops. A well-respected officer decided, on his own initiative, to be more aggressive with his traffic stops to get his numbers up (City of Chaska, Minnesota and Law Enforcement Labor Services, Inc., Local No. 210, St. Paul, Minnesota,Feb. 19, 2016, Richard Miller, Arbitrator).

Employee with mental health issues unqualified due to safety risk; no direct threat defense required

By Dave Strausfeld, J.D.

The Wisconsin Division of Motor Vehicles was not required to rely on a direct-threat defense in a discriminatory discharge suit brought by an employee with a mental health disability whose behavior raised safety concerns, so it did not need to bear the burden of proof associated with that affirmative defense, held the Seventh Circuit, affirming summary judgment dismissing her Rehabilitation Act claim. Rather, it could simply argue she failed to make a showing that she was “otherwise qualified” for her position, and on this issue she bore the evidentiary burden. Sending her for an independent medical examination did not necessarily trigger the direct-threat framework (Felix v. Wisconsin Department of Transportation, July 6, 2016, Rovner, I.).

First Amendment may protect officer from retaliation for aiding FBI investigation

By Dave Strausfeld, J.D.

The First Amendment might protect a police sergeant from retaliation for aiding an FBI investigation into corruption by police department and town officials, held the Fifth Circuit, reversing a summary judgment ruling. His involvement in the FBI investigation did not appear to be within the ordinary perimeters of his job duties, especially since he was forbidden to disclose it to anyone in the police department, so he appeared to be communicating with the FBI in his capacity as a “citizen.” But on a separate issue, he did not state a False Claims Act whistleblower retaliation claim against individual town officials because a 2009 amendment did not expand the FCA to provide individual liability (Howell v. Town of Ball, July 1, 2016, Jolly, E.).

An arbitration award must be vacated if a party's rights were impaired by an arbitrator exceeding his or her power in making the determination

An arbitration award must be vacated if a party's rights were impaired by an arbitrator exceeding his or her power in making the determination

Matter of O'Flynn (Monroe County Deputy Sheriffs' Assn., Inc.), 2016 NY Slip Op. 05261, Appellate Division, Fourth Department

The Monroe County Sheriff’s Department terminated then Deputy Sergeant Paul Doser from his position after Doser was involved in a one-car rollover accident and it was determined that he was driving while intoxicated (DWI).

The appointing authority filed disciplinary charges against Doser alleging: (1) Driving while intoxicated in violation of Vehicle and Traffic Law §1192(3); (2) Aggravated DWI with a blood alcohol content of .18 percent or greater in violation of Vehicle and Traffic Law §1192(2-a)(a); (3) Aggravated DWI with a child in the car in violation of Vehicle and Traffic Law §1192(2-a)(b); (4) Endangering the welfare of a child in violation of Penal Law §260.10(1); and (5) Engaging in conduct unbecoming of his position. 

Consistent with the controlling collective bargaining agreement (CBA), the Department held a administrative disciplinary hearing at which Doser was represented by the Monroe County Deputy Sheriffs' Association, Inc. [Association]. Doser was found guilty of all the charges filed against him and the penalty imposed was termination.

Doser then filed a grievance challenging the Department’s disciplinary decision and, pursuant to the CBA, a hearing was held before an arbitrator.

At the arbitration the arbitrator found that certain evidence, including the chemical test results measuring Doser's blood alcohol content, was inadmissible. Refusing to consider such evidence, the arbitrator found that the second and fifth charges were not supported by clear and convincing evidence and dismissed those charges but sustained charges one, three, and four.

Comparing the penalty imposed on Doser, termination, with the penalties imposed on other officers also involved in similar DWI-related violations, the arbitrator noted that none of the other officers had been terminated. Concluding that Doser's termination was arbitrary and capricious, the arbitrator ruled [1] that demotion, rather than termination, was the appropriate penalty and [2] that Doser was to be reinstated by the Department and compensated for lost pay.

The Department filed a CPLR §7511 petition seeking to vacate the arbitrator's determination and award. Finding that the arbitrator “exceeded his authority by improperly neglecting to consider certain evidence” received in the course of the disciplinary hearing, Supreme Court vacated the award in its entirety, and ordered a rehearing before a different arbitrator.

The Association appealed the Supreme Court’s decision. The Appellate Division, however, sustained the lower court’s ruling, explaining that CPLR §7511(b) provides that an arbitration award must be vacated if, as relevant in this appeal, “a party's rights were impaired by an arbitrator who exceeded his [or her] power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made."

The Appellate Division observed that "[i]t is well settled that a court may vacate an arbitration award only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power" and “[o]utside of these narrowly circumscribed exceptions, courts lack authority to review arbitral decisions, even where an arbitrator has made an error of law or fact." The court concluded that the arbitrator, in this instance, had “clearly exceeded his authority as provided by the CBA.”

Rather than comply with the provisions in the CBA that "[t]he arbitrator shall review the record of the disciplinary hearing and determine if the finding of guilt was based upon clear and convincing evidence," the arbitrator, instead of reviewing the record from the hearing, considered only a portion of the record after having decided to exclude certain evidence from his review.

Having failed to review all the evidence that, in this instance, the arbitrator was required to review, the Appellate Division concluded that Supreme Court had properly found that the arbitrator exceeded his authority and vacated the arbitration award. In so doing, the Appellate Division rejected the Association’s argument that “any error in this regard was harmless.” Rather, said the court, the arbitrator’s refusal to consider the inappropriately-excluded evidence directly resulted in the dismissal of two out of the five charges.

In addition, the Appellate Division rejected the Association’s claim that even if that error did not impact the arbitrator's determination as to the penalty to be imposed, the imposition of the penalty of termination was arbitrary and capricious in and of itself. The Appellate Division disagreed, explaining by the arbitrator's  making comparisons between the conduct alleged against Doser and that committed by other officers in other, similar, cases after excluding certain evidence against Doser resulted making a comparison without the benefit of a full review of the record.

As to the objection of the Association to Supreme Court’s ordering a rehearing before a different arbitrator, the Appellate Division said that in “vacating an arbitration award, a court has the discretion to ‘order a rehearing and determination of all or any of the issues either before the same arbitrator or before a new arbitrator.’" As the arbitrator making the decision challenged by the Department exceeded his authority under the CBA, the Appellate Division said it conclude that the court did not abuse its discretion in ordering that a different arbitrator conduct the rehearing and affirmed the Supreme Court’s order vacating the initial arbitrator’s opinion and award and ordering a rehearing before a different arbitrator.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05261.htm

______________

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

______________