Members of the public are deemed to have knowledge of an agency’s administrative action that has been posted on the Internet

Members of the public are deemed to have knowledge of an agency’s administrative action that has been posted on the Internet 
Eskridge v Nassau County BOCES, Decisions of the Commissioner Education, Decision No. 16,932

Meredith Eskridge appealed the decision of the Board of Cooperative Educational Services of Nassau County [BOCES] denial of her request to be placed on the preferred eligibility list for a position as a teacher of deaf and hard of hearing. 

Earlier BOCES had advised Eskridge that the Bethpage Union Free School District was “taking back” the program of hearing impaired services and that “her seniority, tenure and sick days would move with her.” Bethpage appointed Eskridge with tenure in the special subject tenure area of Education of Deaf Children effective October 12, 2011.  On August 25, 2011, Bethpageappointed Eskridge as a teacher in the general special education tenure area, subject to the satisfactory completion of a two year probationary period.

On January 3, 2012, BOCES appointed Amanda Pirolo to the position of Teacher-Deaf and Hard of Hearing - Hearing and Vision Services-Special Education Program.

Bethpage terminated Eskridge’s .4 probationary appointment in the special education tenure area effective February 28, 2012, thereby reducing her employment with the district to a .6 tenured part time position in the special subject tenure area of education of deaf children. 

Eskridge challenged BOCES decision not to placing her name the preferred list by initiating an Article 78 proceeding in Nassau County Supreme Court. She contended that BOCES had violated Education Law §3014-b by failing to place her on the preferred eligibility list and failing recall her to a position as teacher of the deaf in its “Deaf  and Hard of Hearing-Hearing and Vision Services-Special Education” Program.  The court dismissed her petition on jurisdictional grounds and referred the matter petition to the Commissioner of Education for determination. The Commissioner assumed jurisdiction.

In response to Eskridge’s allegations Bethpageargued that:

1. Eskridge failed to properly serve Amanda Pirolo with a copy of her petition; 
2. Pirolo’s name should be removed from the petition because she has not been employed by BOCES as a teacher of the deaf since 2012;
3. Eskridge failed to name the current holder of the position, Paula Hastings, in the caption of her appeal and therefore she has failed to join necessary parties;
4. Eskridge’s appeal was untimely; and
5. Eskridge “failed to state a claim.”

Addressing the issue to timeliness, the Commissioner ruled Eskridge’s petition was timely, explaining that “[a]n 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 30 days of receipt of the [court’s] determination.”

Ultimately many of the technical defects in Eskridge's appeal were cured consistent with the advisory given to Eskridge by the Commissioner’s Office of Counsel that “if the corrected version was served and filed within two weeks of July 3, 2012, the appeal would be deemed to have been initiated on the day a copy of the returned petition was personally served upon respondents.” Eskridge complied and as the original petition was served on the BOCE respondents within 30 days of the Supreme Court’s decision, the Commissioner deemed the appeal timely.

Pirolo’s answer stated that she has not been employed by BOCES as a teacher of the deaf since June 2012 and that Paula Hastings was appointed by BOCES to such a position on or about October 23, 2012. Accordingly, the Commissioner ruled that with respect to Pirolo was moot.

However, said the Commissioner, Eskridge’s appeal with respect to BOCES’s refusal to add her name to the preferred list was not moot but Eskridge’s appeal was dismissed “for failure to join a necessary party.”*

In response to a request from the Commissioner’s Office of Counsel, BOCES had provided a copy of the minutes from the BOCES October 23, 2012board meeting. The minutes reported that Hastingswas appointed to the position effective October 15, 2012. The Commissioner said that Eskridge’s contention that she was not aware of Hastings’ appointment was unpersuasive as the relevant information was reflected in the Board’s minutes and “publicly available on BOCES’s website.”** 

Dismissing Eskridge’s appeal regarding BOCES appointment of Hastings as untimely, the Commissioner explained that “this appeal was commenced in July 2013, more than eight months after Hastingswas appointed and Pirolo was no longer serving in the position at that time. As Hastingswould be adversely affected by a determination in favor of Eskridge, the Commissioner held that the appeal must be dismissed for failure to join Hastingsas a necessary party. 

Observation: Assuming, but not deciding, that Eskridge accepted a full-time position with the Bethpage Union Free School District, the precedent followed in such situations is that upon acceptance of a full-time position with a School District in compliance with Education Law §3014-b, the individual does not have a right to remain on a preferred eligible list at BOCES. In earlier Decisions of the Commissioner it was held that Education Law §§2510 and 3013 are designed to protect the rights of teachers whose positions are abolished generally. In contrast, Education Law §3014-b is intended to protect the rights of BOCES teachers whose positions are eliminated specifically because of program takebacks. When a teacher is excessed because of a BOCES program takeback, §3014-b(1) provides that " . . . each teacher employed in such a program by such a board of cooperative educational services at the time of such takeover by the school district shall be considered an employee of such school district, with the same tenure status he [or she] maintained in such board of cooperative educational services." 

* A necessary party is a party whose rights would be adversely affected by a determination of an appeal in the petitioner's favor, here Paula Hastings.

**A footnote in the Commissioner’s decision provides a link to the BOCES “Agenda for the Regular Meeting of Tuesday, October 23, 2012” which sets out on page 69 of a “BOCES packet” a reference to a personnel action involving Hastings. See

http://nassaubocesny.iqm2.com/Citizens/FileOpen.aspx?Type=1&ID=1149&Inli... (link is external) 

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume56/d16932

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Seeking documents that the custodian of the records contends may be denied pursuant to one or more Freedom of Information Law “exemptions from disclosure”

Seeking documents that the custodian of the records contends may be denied pursuant to one or more Freedom of Information Law “exemptions from disclosure”

Rose v Albany County Dist. Attorney's Off., 2016 NY Slip Op 05536, Appellate Division, Third Department

Nakia Rose was convicted of numerous crimes* People v Rose, 72 AD3d 1341 [2010], lv dismissed 16 NY3d 745 [2011]). He thereafter submitted a Freedom of Information Law (Public Officers Law Article 6 [FOIL]) request to Albany County District Attorney's Office [ODA] seeking the disclosure of "29 categories of documents relating to the criminal investigation that led to his conviction."**

The Office of the District Attorney [ODA] denied the request for the documents, and Rose  initiated this CPLR Article 78 proceeding. Although Rose subsequently received some of the requested documents, Supreme Court sustained OAD's denial of other documents. Rose appealed and the Appellate Division remitted the matter to Supreme Court for an in camera*** inspection of the documents with regard to two groups of documents that Rose had requested consisting of:

[1] "[a]ll notes, memos, teletypes, letters, records, and other communications to/from the State police, Albany police, Albany Dept. of Public Safety, or federal authorities regarding [petitioner] and/or the investigation underlying the charges against him;" and

[2] "[a]ll letters or communications written by any employee of [the ODA], or on its behalf, to any governmental agency or private entity concerning any prosecution witness, including but not limited to letters and communications to the Division of Parole, Probation Department, Human Resources Administration, NYC Housing Authority, Department of Homeland Security, and Immigration."

Supreme Court then conducted an in camerainspection of all 257 documents in the two groups provided by the ODA. Providing a detailed description of each document and the basis for the disclosure or nondisclosure of each of the 257 documents, the court concluded that 32 of the documents were subject to disclosure in redacted form and dismissed Rose’s petition with regard to the remaining documents. Supreme Court also denied Rose's request for attorney fees.

Responding to Rose’s appeal of this ruling by Supreme Court, the Appellate Division rejected Rose’s contention that he was entitled to disclosure of all of the documents as the result of “an alleged failure by Supreme Court to provide sufficient factual explanation for its determination as to each document.” The court explained that it was well established that Rose’s entitlement to the documents depends upon whether ODA did or did not meet its burden of establishing that the documents fall within an exemption to a FOIL disclosure and Rose’s “entitlement” to any of the documents was not dependent on the specificity of a “trial court's written findings.”

The Appellate Division also held that Supreme Court had properly limited its scope of review in accordance with its earlier “unambiguous directive that the scope of remittal was limited to addressing whether or not documents responsive to [Rose’s] request … were exempt from disclosure.”

In addition, the Public Officers Law §87(2)(g) exempts inter-agency or intra-agency materials from FOIL disclosure to the extent that such materials do not contain "(i) statistical or factual tabulations or data; (ii) instructions to staff that affect the public; [or] (iii) final agency policy or determinations." This exemption for inter-agency or intra-agency materials, said the Appellate Division, "applies to 'opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making,’" agreeing with Supreme Court that the ODA met its burden of establishing that documents at issue were exempted inter-agency or intra-agency materials.

However, said the Appellate Division, Supreme Court should have directed the disclosure of documents which were not sought to be exempted by the ODA and it should not have relied on a justification for withholding documents that was not advanced by the ODA.

As to the "safety exemption" set out in Public Officers Law §87[2][f] the Appellate Division indicated rather than withholding certain of the documents entirely, they could be disclosed subject to appropriate redactions.

As NYPPL has noted in earlier summaries of court and administrative decisions involving FOIL requests, 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, submitting a formal FOIL request is not a condition precedent to obtaining public records where access is not barred by statute. 

Submitting a formal FOIL request is necessary only in the event the custodian of the public record[s] sought declines to simply provide the information or record requested. In such cases the individual or organization must file a formal FOIL request in order 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 statutory exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded. Further, in some instances, however, a statutory exception may have “sublimated” as the Appellate Division observed in DeFreitas v New York State Police Crime Lab., 2016 NY Slip Op 05676, quoting Matter of Lesher v Hynes, 19 NY3d 57, “the exception in Public Officers Law §87(2)(e)(i) [interfere with law enforcement investigations or judicial proceedings] no longer applies because petitioner's criminal proceedings and judicial review have concluded.”

* See People v Rose, 72 AD3d 1341

** The facts of that case are more fully discussed in a previous decision by the Appellate Division, Ross v Albany County Dist. Attorney’s Office, 111 AD3d 1123, Leave to appeal dismissed, 16 NY3d 745, posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_07796.htm .

*** A review of the document by the court “in private.”

The decision in Rose v Albany County Dist. Attorney's Off.,2016 NY Slip Op 05536, is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2016/2016_05536.htm

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Recent decisions by New York City Office of Administrative Tribunals and Hearings Administrative Law Judges

Recent decisions by New York City Office of Administrative Tribunals and Hearings Administrative Law Judges

Making false and misleading statements in an official report

OATH Index No. 1619/16

A correction officer [Officer] was charged with making false and misleading statements in a written report concerning force used by another correction officer against an inmate. Video showed that the other officer pulled the inmate’s arm through the food slot and hit the inmate at least once. The Officer’s report stated that there was an “altercation” and included the word “arm” to indicate where force was applied.

Administrative Law Judge John B. Spooner found that Officer’s report was deficient because it did not provide the detail required by the use-of-force directive  but that it was not intentionally false,. Judge Spooner dismissed the charge that Officer did not report that the other officer had struck the inmate because there was insufficient proof that Officer saw a blow.

The ALJ recommended Officer be suspended without pay for 5 days. 

The decision is posted on the Internet at: http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-1619.pdf

Improperly indicating availability for working overtime

OATH Index No. 2741/15

OATH Administrative Law Judge Kevin F. Casey found that a carpenter improperly documented his overtime availability, did not respond to his supervisors’ phone calls regarding availability for overtime, failed to keep his supervisor’s informed about his progress on assignments, disobeyed instructions for filling out timesheets, and refused to comply with orders to refrain from adding extraneous comments to work tracking forms.

Judge Casey recommended that the carpenter be suspended without pay for 20 days.

The decision is posted on the Internet at: http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-2741.pdf

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Attempting to avoid disciplinary action

Attempting to avoid disciplinary action

2016 NY Slip Op 05608, Appellate Division, Third Department

A New York State Trooper [ST] was allegedly involved in "an incident" in the course of performing official duties. The Internal Affairs Bureau of the Division of State Police [IBA] investigated the incident and recommended that "appropriate administrative action" be taken against ST. Two days after the IAB issued its report, but before any formal disciplinary charges were served on ST, ST submitted a notice of his "intent to retire."

ST subsequently applied for an identification card indicating that he was a State Police Retired Member.* The Superintendent rejected ST’s application for such an identification card after concluding that  ST "had engaged in serious misconduct and retired in order to avoid disciplinary action.” Accordingly, the Superintendent explained, ST had not retired in good standing

ST commenced a CPLR Article 78 proceeding, claiming that the Superintendent’s determination was arbitrary and capricious and without a rational basis because ST “was not facing any charges of serious misconduct at the time that he retired.”

The Appellate Division affirmed the Supreme Court’s dismissal of ST’s the petition, explaining that the court’s review of an Article 78 challenge to an administrative determination such as the one brought by ST was limited to whether the administrative determination was arbitrary and capricious, lacked a rational basis or was affected by an error of law. Further, said the Appellate Division, a court would not substitute its judgment for that of the appointing authority if that conclusion was reasonably supported by the record.

The court's decision notes that in denying ST’s request for the identification card, the Superintendent considered the IAB's report and ST’s personnel records. These records  indicted that [1] ST had been "the subject of recent counseling and below standard performance ratings" and [2] ST had been the subject of “six founded personnel complaints” during his tenure as a trooper and was "the subject of a pending personnel complaint” at the time of his retirement.

The Appellate Division said that the record established that although disciplinary charges had not been served upon ST prior to his submitting a notice that he intended to retire, the formal submission of his notice of an intention to retire "effectively suspended any internal disciplinary proceedings against him."**

Although ST denied that he engaged in misconduct or retired to avoid disciplinary action, the Appellate Division concluded that the record supported the Superintendent's determination that ST was not eligible for the requested identification card because he engaged in serious misconduct shortly before his retirement and did not retire in good standing.

Finding that the Superintendent’s determination was not arbitrary and capricious nor lacking in a rational basis, the Appellate Division declined to disturb it.

* The significance of the possession of such identification is that 18 USC §926C provides that "an individual who is a qualified retired law enforcement officer and who is carrying the identification required . . . may carry a concealed firearm." Executive Law §231, amended  effective January 20, 2015, provides that Superintendent of State Police "shall develop and distribute uniform identification cards to all sworn members of New York [S]tate [P]olice, upon such members' retirement in good standing" and the phrase "retirement in good standing" means that the State Police member "retired from his or her employment for reasons other than the avoidance of disciplinary charges."

** 4 NYCRR 5.3 Resignation, provides, in pertinent part, that when charges of incompetency or misconduct have been or are about to be filed against an employee of the State as the employer, the appointing authority may elect to disregard the resignation filed by the employee and to prosecute such charges and, in the event that the employee is found guilty of such charges and the penalty imposed is dismissed from the service, his or her termination "shall be recorded as a dismissal rather than as a resignation." Many local civil service commissions have adopted a similar rule. The decision in Blair v Horn, 2008 NY Slip Op 32581(U) [Not selected for publication in the Official Reports] suggests that a court could deem a retirement to be the equivalent of a resignation for the purposes of 4 NYCRR 5.3(b). See, also, Elmira CSD v Newcomb, 266 AD2d 622, motion for leave to appeal dismissed, 94 NY2d 899.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05608.htm