Employee alleges termination for planning to testify against the employer in an age discrimination case constituted a violation of the First Amendment

Employee alleges termination for planning to testify against the employer in an age discrimination case constituted a violation of the First Amendment

Stilwell v City of Williams, USCA, 9^th Circuit, Case #14-15540

Source: FindLaw, part of Thomson Reuters

FindLaw reports that “In a suit brought by a City employee who alleged that he was fired for planning to testify against the City in a lawsuit relating to age discrimination, the District Court's grant of summary judgment to defendant is vacated and remanded where: 1) plaintiff was engaged in speech as a citizen for First Amendment purposes because his sworn statements and imminent testimony about the City's retaliatory conduct were outside the scope of his ordinary job duties and were on a matter of public concern; and 2) he retaliation provision of the Age Discrimination in Employment Act (ADEA), did not preclude plaintiff’s 42 U.S.C. section 1983 First Amendment retaliation claim.”

In Connick v Myers, 461 US 138, the U.S. Supreme Court said that federal courts will consider retaliation allegations based on an employee's claim of free speech where the speech concerns matters of public concern in contrast to speech involving “only matters of a personal interest” to the employee.*

A second test that must be met by a public employee claiming that his or her employer's action violates his or her right to free speech: Did the employee's statement outweigh the employer's interest in terminating or otherwise disciplining an employee whose conduct “hinder effective and efficient fulfillment of its responsibilities to the public?”

In Santer v Board of Educ. of E. Meadow Union Free Sch. Dist., 23 NY3d 251, the Court of Appeals held that  public employer may impose restraints on First Amendment activities of its employees that are job-related that would be unconstitutional if applied to the public at large, explaining “that viewing the record evidence in light of established federal precedent … the teachers' interests in engaging in constitutionally protected speech in the particular manner that was employed on the day in question were outweighed by the District's interests in safeguarding students and maintaining effective operations,” at a school.**

Other decisions in which a public employee's right to free speech was considered include Tytor v Laramie County School District, CA10 [unpublished]; Jeffries v Harleston, CA2, 52 F3d 9; and Barnard v Jackson County, CA8, 43 F3d 1218. 

* In evaluating the validity of a restraint on government employee speech, courts must “arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees” [see Matter of Pickering, 391 US at 568]. However, the Pickering’s balancing test applies only when the employee speaks “as a citizen upon matters of public concern” rather than “as an employee upon matters only of personal interest.”

** See http://publicpersonnellaw.blogspot.com/2014/05/a-public-employer-may-impose-restraints.html, a NYPPL summary of the Santer ruling.

The text of the Stilwell decision is posted on the Internet at:

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/05/14-15540.pdf

State Comptroller Thomas P. DiNapoli forwards auditor’s findings for review by the Public Officers Law violations to the State’s Joint Commission on Public Ethics

State Comptroller Thomas P. DiNapoli forwards auditor’s findings for review by the Public Officers Law violations to the State’s Joint Commission on Public Ethics

Source: Office of the State Comptroller

SUNY Downstate Medical Center (Downstate) consultant, Pitts Management Associates, Inc. (PMA), charged Downstate $83,156 in questionable travel and lodging expenses, exceeding the conditions of the contract, including pricey rooms at the Carlyle Hotel and a “team dinner” that included cocktails, according to a report released on August 8, 2016,  by State Comptroller Thomas P. DiNapoli.

Comptroller DiNapoli said “My auditors exposed questionable expenses and ethical lapses that have no place in state government. Auditors found “tens of thousands in monthly hotel costs and expensive dinners on the public’s dime at a time when Downstate was supposed to be getting its fiscal house in order.”

Indicating that Downstate “failed to protect the public’s money,” the Comptroller urged the Joint Commission on Public Ethics “to review this questionable behavior.”

Downstate hired PMA to provide organizational restructuring and consulting to identify solutions to fiscal difficulties as reported in a 2013 Comptroller audit that revealed Downstate was facing potential insolvency. PMA had two subsequent contracts with Downstate worth $35.8 million.

DiNapoli’s report found several instances in which Downstate’s then administration failed to act in the state’s best interest by eliminating certain cost controls over PMA travel expenses, including a prohibition on reimbursement for alcohol. In addition, the then president charged his Bermuda airfare and some of his lodging at the Fairmont Hamilton Princess hotel to his state-issued credit card for a six-day birthday bash for PMA’s chair, prompting a referral by the Comptroller to the state Joint Commission on Public Ethics.

According to the report, PMA’s questionable expenses included:

1. Lodging costs of $17,688, including $14,193 in weekend hotel expenses for a consultant who had traveled home and did not require overnight accommodations, and a $1,419 charge for a single night’s stay at the Carlyle for the PMA Chairman;

2. Inappropriate meal expenses of $13,629, including free meals for Downstate staff, which is prohibited for state employees;

3. A non-itemized $2,039 “team dinner” at Manhattan’s Docks Oyster Bar and Seafood Grill with nearly $400 for alcohol. The total far exceeded the allowable U.S. General Services Administration and New York state dinner rates;

4. An alleged ‘travel expense’ of $32,500 for a management software license; and

 
5. Transportation expenses totaling $33,203, nearly half of which lacked proper documentation and included $537 for limousine drivers to wait outside restaurants for hours for PMA consultants to finish dinner.

DiNapoli recommended that Downstate:

1. Recover $41,512, including $32,500 for software license fees;

2. Review the then president’s actions and ensure time cards and expenses are properly documented and business-related;

3. Develop a policy for consulting contracts that includes reimbursement for meals, transportation and lodging that conforms to the GSA Rates and/or the New York State Travel Manual; and

4. Perform an independent examination of all travel-related expenses – that PMA charged and Downstate approved – for reasonableness, and recover as appropriate.

In response, Downstate acknowledged that improvements are needed in the procurement and payment areas and agreed to recover the $41,512 in miscellaneous expenses including the software license fees.

The Comptroller’s report and Downstate’s full response is posted on the Internet at: http://www.osc.state.ny.us/audits/allaudits/bseaudits/bse20160808.pdf

Payment for time involved in donning and doffing of uniforms

Payment for time involved in donning and doffing of uniforms

Perez v The City of New York, USCA, Second Circuit, Docket #15-315 [Source: Justia Daily Opinion Summaries]

Justia reports that “[s]everal active and former Assistant Urban Park Rangers (AUPRs) employed by the [New York] City's Parks Department alleged that they, and others similarly situated, were not paid in accordance with the requirements of the Fair Labor Standards Act (FLSA), 29 U.S.C. 201 et seq. The district court granted partial summary judgment for defendants and closed the case without further proceedings.

“On the current record, the [Circuit] court could not conclude as a matter of law that plaintiffsʹ donning and doffing of uniforms were not integral and indispensable to their principal activities as AUPRs - the sole ground on which the district court granted partial summary judgment. Therefore, the [Circuit] court remanded to allow the district court to decide, in the first instance, whether plaintiffsʹ donning and doffing are nevertheless non‐compensable as a matter of law under the de minimisdoctrine or the terms of a collective bargaining agreement.” 

The Perez decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/0367b0f4-1f0c-43d3-a008-02e76a26f61f/5/doc/15-315_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/0367b0f4-1f0c-43d3-a008-02e76a26f61f/5/hilite/

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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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant New York State laws, rules and regulations, and selected court and administrative decisions involving layoff and related matters. For more information click on http://booklocker.com/5216.html

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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