An agency may decline to acknowledge that requested records exist in response to a Freedom of Information Law request

An agency may decline to acknowledge that requested records exist in response to a Freedom of Information Law request

Abdur-Rashid v NYC Police Department, 2018 NY Slip Op 02206, Court of Appeals

Hashmi v NYC Police Department, 2018 NY Slip Op 02206, Court of Appeals

The Chief Judge of the Court of Appeals described the issue presented in this appeal as follows: "May a public entity decline to acknowledge that requested records exist in response to a Freedom of Information Law request,  Public Officers Law §84 et seq. [FOIL], when necessary to safeguard statutorily exempted information."

A majority of the court held that the public entity may, affirming the Appellate Division's determination.

The court was split, in whole or in part, in this important decision, with the opinion by Chief Judge DiFiore in which. Judges Fahey, Garcia and Feinman concur while Judge Wilson dissented in part in an opinion and Judge Stein dissented in an opinion in which Judge Rivera concurs, the full text of decision, including Judge Wilson's and Judge Stein's opinions, are posted on the Internet.

Click on the following URL to access the decision:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02206.htm

The anatomy of an administrative disciplinary decision

The anatomy of an administrative disciplinary decision

Marentette v City of Canandaigua,, 2018 NY Slip Op 01764, Appellate Division, Fourth Department

The §75 disciplinary Hearing Officer found the Fire Chief [Chief] of the City of Canandaigua guilty acts of misconduct, having committed acts of insubordination by repeatedly violated the directive of his superior, making unauthorized entries on his subordinates' time sheets, and acts of incompetence by authorizing the expenditure of public funds on several occasions in violation of the City's procurement policies.

The Hearing Officer recommended that the Chief be demoted. The appointing authority determined that termination was warranted given the gravity of the misconduct, the Chiefs "disciplinary record," earlier "unsuccessful attempts at remediation," and the loss of trust in the Chief.

In response to the Chief's appeal of the decision of the appointing authority, the Appellate Division, sustained the actions of the disciplinary action Hearing Officer and the appointing authority and:

1. Rejected the Chief's argument that preponderance of the evidence is the applicable evidentiary standard in this case explaining that "It is well established that substantial evidence is generally the applicable evidentiary standard for disciplinary matters involving public employees under Civil Service Law §75, and that due process requires application of the preponderance of the evidence standard only "when the penalty of dismissal is accompanied by some added stigma." Here, said the court, there was nothing in the record suggesting that stigma has resulted from the Chief's termination in that he has not been "[effectively] prohibited from obtaining future . . . employment [as a firefighter or an officer of a fire department], or that he is subjected to a public registry of any sort";

2. Ruled that the determination that the Chief committed acts of insubordination and incompetence was supported by substantial evidence; i.e., by "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.";

3. Said that the Chief's exculpatory explanations for his conduct raised an issue of credibility that the Hearing Officer was entitled to resolve against him.;

4. Was unpersuaded by the Chief's contention that the termination of his employment was unjustified under the circumstances, indicating that the court's review of the penalty imposed by the appointing authority "is extremely limited" does not include "any discretionary authority or interest of justice jurisdiction in reviewing the penalty imposed."; and

5. Citing Kelly v Safir, 96 NY2d 32, [rearg denied 96 NY2d 854], concluded that the penalty of termination was "not so disproportionate to the offense[s] as to be shocking to one's sense of fairness"  and thus "did not constitute an abuse of discretion as a matter of law ... particularly in light of [the Chief's] conduct underlying the charges and his history of disciplinary infractions during his tenure as Fire Chief."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_01764.htm

Jurisdictional classification and reclassification of positions in the Classified Service

Jurisdictional classification and reclassification of positions in the Classified Service

Spence v New York State Department of Civil Service, 2017 NY Slip Op 08570, Appellate Division, Third Department

Jurisdictional classification involves the assignment of positions in the classified service to the competitive, non-competitive, exempt or labor classes.* In contrast, position classification is a grouping of positions, under common and descriptive titles, that are substantially similar in the essential character and scope of their duties and responsibilities and in the qualifications for appointment to such positions.

In this Article 78 action, Wayne Spence, as President of the New York State Public Employees Federation, [PEF], challenged the decision of the New York State Civil Service Commission [Commission] placing positions of "Empire Fellow" in the State's Empire Fellow Program in the noncompetitive class.

The Empire Fellow Program was created as part of an initiative to recruit and train professionals for policy making roles in state government. Empire Fellows work for two years under the auspices of the Office of General Services [OGS], which assigns them to perform work under senior officials throughout New York State's Executive branch of government that involves the formulation, preparation and execution of high-level projects.

Initially the Commission placed these positions in the exempt class. Subsequently OGS asked the Commission to jurisdictionally reclassify these positions to "Empire Fellow in the noncompetitive class" of the Classified Service and to reflect this change in it Rules for the Classified Service.

PEF opposed the jurisdictional reclassification of these positions and commenced this CPLR Article 78 proceeding. Supreme Court dismissed the petition and PEF appealed the ruling.

The Appellate Division affirmed the lower court's ruling, explaining Administrative determinations concerning position jurisdictional classifications are subject to only limited judicial review and will not be disturbed in the absence of a showing that the decision is "wholly arbitrary or without any rational basis."

Although, said the court, it is "well settled that appointments and promotions within the civil service system must be merit-based and, when 'practicable,' determined by competitive examination," the Commission may nevertheless place a title in the noncompetitive class where "it is impracticable to determine merit and fitness ... by competitive examination." In addition, opined the Appellate Divisions, impracticability could arise "due to either the confidential nature of the position or because the character of the position renders an examination inadequate to measure the qualifications of the prospective employee."

The Appellate Division noted that the "knowledge, skills and abilities" needed to analyze and develop policy could be assessed by competitive examination and titles involving those skills have been classified as being in the Competitive Class and candidates for appointment to such positions have been tested for such skills. But, said the court, "A competitive examination could not discern ... whether a potential fellow had the 'diplomacy, sound judgment and discretion' needed to both responsibly handle restricted information and maintain the trust of the senior appointed officials with whom he or she would closely work."

Also noted was the fact that "new fellows would need to be selected every two years"** which OGS contended made competitive testing impracticable due to respondent Department of Civil Service's "lack of experience in testing for fellowship-type positions, and the conflict between the two-year [f]ellow appointment cycle and the time and resources needed to develop a new competitive testing regimen."

These factors, said the court, provide a rational basis for the Commission's jurisdictional  classification of the Empire Fellow title as positions in the noncompetitive class and that it would "not interfere with its judgment" despite "a substantial variance of opinion" as to the best jurisdictional classification.

Another aspect of jurisdictional reclassification” of a position is the status of the individual in the newly jurisdictionally reclassified position. For example, should a position in the noncompetitive class jurisdictionally be reclassified to the competitive class, in Fornara v Schroeder, 261 NY 363, the Court of Appeals held that if the then incumbent held tenure in the noncompetitive class position, he or she will be continued in service as a tenured permanent employee in the competitive class position without further examination.

In addition, an employee in the classified service may retain certain statutory rights upon the changing of the jurisdictional classification of his or her position from the classified service to the unclassified service. For example, §355-a.10.a. of the Education Law, in relevant part, provides that “The incumbent of any position in the classified service which is determined to be in the unclassified service shall … retain the rights and privileges of the classified service jurisdictional classification with respect to discipline, dismissal and suspension for as long as such person remains in the redesignated position.”

* Positions in the Classified Service,  Civil Service Law §§41-44, are deemed to be in the Competitive Class unless placed, or approved for placement, in another jurisdiction class by the Civil Service Commission or otherwise so designated by law. §35 of the Civil Service Law addresses position in the Unclassified Service.

** §41.2 of the Civil Service Law, in pertinent part, "Upon the occurrence of a vacancy in any position in the exempt class, the state or municipal civil service commission having jurisdiction shall study and evaluate such position and, within four months after the occurrence of such vacancy, shall determine whether such position, as then constituted, is properly classified in the exempt class. Pending such determination, said position shall not be filled, except on a temporary basis.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_08570.htm

Fiscal stress remains low among villages

Fiscal stress remains low among villages
Ten Villages, Two Cities Cited in Latest Fiscal Stress Scoring

Click on text highlighted in color to access the full report.

State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System has identified 10 villages and two cities in New York in some level of fiscal stress in 2017. The system evaluated all non-calendar year local governments and designated one village and one city in “significant fiscal stress,” four villages in “moderate fiscal stress” and five villages and one city as “susceptible to fiscal stress.”

“Our indicators show fiscal stress is relatively low among New York's villages,” said DiNapoli. “I continue to encourage local officials to be mindful about how practices today might impact budgetary solvency in the future. Our monitoring system helps keep local officials and the public informed on this important community issue each year, including the economic and demographic drivers of fiscal stress.”

DiNapoli’s office evaluated 529 villages, which predominantly have a fiscal year ending on May 31. The most recent round of scoring also assessed the 17 cities in New York with non-calendar fiscal years.

This is the fifth year DiNapoli’s office has assessed levels of fiscal stress in local governments. Using financial indicators that include year-end fund balance, cash position, short-term borrowing and patterns of operating deficits, DiNapoli’s monitoring system creates an overall fiscal stress score which ultimately drives final classifications.

For the fiscal year ending 2017, the city of Long Beach (Nassau Co.) and the village of Island Park (Nassau) were designated in “significant fiscal stress.”

The villages of Andover (Allegany), Ellenville (Ulster), Granville (Washington) and Valley Stream (Nassau) were listed in “moderate fiscal stress.” The city of Yonkers (Westchester) and the villages of Baldwinsville (Onondaga), Canisteo (Steuben), Catskill (Greene), Dering Harbor (Suffolk) and Walden (Orange) were designated as “susceptible to fiscal stress.”

The fiscal stress scores also show that in 2017:

Three villages moved out of fiscal stress and four villages moved into a fiscal stress category; and

Forty-four villages failed to file the necessary and required annual financial reports and did not receive a score.

In January, DiNapoli released fiscal stress scores for school districts. In September, his office will release scores for municipalities with a calendar-year fiscal year, which includes all counties, towns, 10 villages, and the majority of cities.

DiNapoli's office recently implemented system enhancements which were developed with direct input from local government and school district officials. The changes provide local officials with more easy-to-understand information that can help them address specific challenges facing their communities.

For a full list of villages and cities in fiscal stress, visit:

http://www.osc.state.ny.us/localgov/fiscalmonitoring/localgovernments/munis-stressed.htm

To search the complete list of fiscal stress scores, visit:

http://wwe1.osc.state.ny.us/localgov/fiscalmonitoring/fsms.cfm

Distinguishing between official acts and unofficial acts for the purposes of claiming qualified immunity from lawsuits in New York State courts

Distinguishing between official acts and unofficial acts for the purposes of claiming qualified immunity from lawsuits in New York State courts

Zervos v Trump, NYS Supreme Court, Index No. 150522/17

Judge Jennifer G. Schecter, citing Clinton v Jones, 520 US 681 [Clinton], held that a sitting president is not immune from being sued in state courts for unofficial acts* and denied President Donald J. Trump's [Defendant] motion to dismiss Summer Zervos' [Plaintiff] petition.

Plaintiff had alleged that in 2007 Defendant had subjected her to unwelcome "sexually inappropriate misconduct" and then defamed her after she had "publicly described her interactions with [Defendant] in detail, including his unwanted sexual misconduct" at a press conference on October 16, 2016.

Plaintiff alleged later that same day, Defendant responded in a statement that was widely reported and appeared on his campaign website that "[t]o be clear, I never met [Plaintiff] at a hotel or greeted her inappropriately a decade ago. That is not who I am as a person and it is not how I've conducted my life." Subsequently Defendant stated Plaintiff's "allegations are 100% false". . They are made up, they never happened ..." at campaign rallies.

A false statement tending "to expose a person to public contempt, hatred, ridicule, aversion or disgrace constitutes defamation" and in this action Plaintiff alleged that the public statements made by the Defendant that Plaintiff's "allegations are 100% false ... They are made up, they never happened" constitute defamation.

The court explained that "No one is above the law" and as the Supreme Court held in Clinton, "the President of the United States has no immunity and is 'subject to the laws' for purely private acts." Any such immunity was grounded "the nature of the function performed, not the identity of the actor who performed it."

Then-President William Jefferson Clinton was required to defend himself against a civil-rights action that included a state-law defamation claim in federal court and the Supreme Court rejected Clinton's argument that "interactions between the Judicial Branch and the Executive, even quite burdensome interactions, necessarily rise to the level of constitutionally forbidden impairment of the Executive's ability to perform its constitutionally mandated functions" and the rule is no different with respect to commencing litigation related to a  President's unofficial conduct in a state court.

The court noted that in Davis v Blenheim, 24 NY3d 262 , the New York State Court of Appeals determined that a defamation action could be maintained against a defendant who called individuals claiming to have been victims of sexual abuse liars and stated that he believed that they were motivated by money to go public. The Court concluded that the statements were susceptible to a defamatory connotation because they communicated that defendant had information unknown to others that justified his statements that the individuals were neither credible nor victims of abuse.

Judge  Schecter opined that "Defendant -- the only person other than plaintiff who knows what happened between the two of them -- repeatedly accused plaintiff of dishonesty not just in his opinion but as a matter of fact. He not only averred that plaintiff told 'phony stories' and issued statements that were 'totally false' and 'fiction,' he insisted that the events 'never happened' and that the allegations were '100% false [and] made Up.'" The court said that "[a]  reader or listener, cognizant that Defendant knows exactly what transpired, could reasonably believe what Defendant's statements convey: that Plaintiff is contemptible because she 'fabricated' events for personal gain."

Referring to the means of communication used by Defendant, the court said the "[m]ost importantly, in their context, Defendant's repeated statements -- which were not made through op-ed pieces or letters to the editor but rather were delivered in speeches, debates and through Twitter, a preferred means of communication often used by Defendant -- cannot be characterized simply as opinion, heated rhetoric or hyperbole." Further, the fact that Defendant's statements about Plaintiff's veracity were made while he was campaigning to become President of the United States, "does not make them any less actionable."

Accordingly, Judge Schecter ruled that the Plaintiff's complaint sufficiently stated a cause of action.

* The distinction made between "official actions" and "personal activities" is reflected in §17 [Defense and indemnification of state officers and employees in civil actions]; §18 [Defense and indemnification of officers and employees of public entities in civil actions]; and §19 [Reimbursement of defense costs incurred by or on behalf of state employees in criminal action] of the Public Officer Law. Essentially these sections provide that the employer shall provide for the defense and indemnification of the officer or employee in any civil action or proceeding in any state or federal court arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the officer or employee was acting within the scope of his or her public employment or duties.

The decision is posted on the Internet at:

https://www.politico.com/f/?id=00000162-44a5-de1c-abfe-6cbd18470002