Terminating the Special Counsel

In May 2017 Acting Attorney General Rod J. Rosenstein appointed Robert S. Mueller III, a former Director of the Federal Bureau of Investigation, as Special Counsel pursuant to the authority set out in 28 CFR 600. Mr. Mueller serves at the pleasure of Acting Attorney General.

Periodically there has been speculation in the media concerning possible efforts to terminate the Special Counsel from the position.

With respect to the removal of a Special Counsel, 28 CFR 600.7(d) provides as follows:

(d) The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General [or, in the instant situation, Acting Attorney General Rosenstein or his successor, if any]. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal.

Subparagraph (d) of Mr. Rosenstein's "ORDER NO. 3915-2017"* to Mr. Mueller setting out the terms and conditions of his appointment as Special Counsel provides that "(d) Sections 600.4 through 600.10 of the Code of Federal Regulations are applicable to the Special Counsel."

Also, 28 CFR 600.9 Notification and reports by the Attorney General, in pertinent part, provides:

(a) The Attorney General will notify the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress, with an explanation for each action -

            (1) Upon appointing a Special Counsel;

            (2) Upon removing any Special Counsel; 

* ORDER NO. 3915-2017 

APPOINTMENT OF SPECIAL COUNSEL

TO INVESTIGATE RUSSIAN INTERFERENCE WITH THE

2016 PRESIDENTIAL ELECTION AND RELATED MATTERS

By virtue of the authority vested in me as Acting Attorney General, including 28 U.S.C. §§509, 510, and 515, in order to discharge my responsibility to provide supervision and management of the Department of Justice, and to ensure a full and thorough investigation of the Russian government's efforts to interfere in the 2016 presidential election, I hereby order as follows:

(a) Robert S. Mueller III is appointed to serve as Special Counsel for the United States Department of Justice.

(b) The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including:

            (i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; 

and

            (ii) any matters that arose or may arise directly from the investigation; 
and

            (iii) any other matters within the scope of 28 C.F.R. §600.4(a).

(c) If the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters.

(d) Sections 600.4 through 600.10 of Title 28 of the Code of Federal Regulations are applicable to the Special Counsel.

Date 5/17/17                                   s/Rod J. Rosenstein

                                                          Acting Attorney General

Reassigning a member of the President's Cabinet to another Cabinet position

Reassigning a member of the President's Cabinet to another Cabinet position
Statutory Authority: Article II.2.2 of the Constitution of the United States  

Recently there has been speculation in the media that should the incumbent Attorney General be dismissed or the position otherwise becomes vacant, the President could appoint another member of the Cabinet to the position without having to submit the nomination to the Senate for its advice and consent.

It appears that such an effort would unconstitutional except with respect to a "recess appointment" as was demonstrated during Andrew Jackson's presidency.

Roger B. Taney, then serving as President Jackson's Attorney General [1831-1833] was appointed to, and then continued to serve in a recess appointment as Secretary of the Treasury [1833-1834].

Jackson subsequently nominated Taney to become Secretary of the Treasury, an appointment necessarily to be "by and with the Advice and Consent of the Senate." The Senate, however, did not consent to Taney's nomination.*

This supports the argument that "transferring" a member of the Cabinet to another position in the Cabinet requires "the Advice and Consent of the Senate" unless made as a "recess appointment" and if so made, will ultimately require affirmative action by the Senate for the individual serving pursuant to the authority of the recess appointment to be continued in the office to which he or she has be "transferred."

* Subsequently Taney joined the Supreme Court [March 15, 1836 - October 12, 1864] and served as Chief Justice, succeeding John Marshall.

The Commissioner of Education will dismiss an appeal submitted pursuant to Education Law §306, in whole or part, if there are procedural defects or omissions

The Commissioner of Education will dismiss an appeal submitted pursuant to Education Law §306, in whole or part, if there are procedural defects or omissions

Appeal of April Trojahn, Decisions of the Commissioner of Education, Appeal #17,360

The Commissioner of Education will dismiss an appeal submitted pursuant to Education Law §306, in whole or part, if there are procedural defects or omissions. Listed below are ten common procedural errors or omissions that will result in the Commissioner of Education  declining to consider the merits of a §306 appeal:

1. A notice of petition that fails to comply with 8 NYCRR §277.1(b) is a fatal defective and does not secure jurisdiction over the intended individual. Such notice of petition  alerts a party to the fact that he or she is the subject of a proceeding and the failure to comply with 8 NYCRR §277.1(b) necessarily results in a jurisdictional failure and requires dismissal of the application.

2. The claim is beyond the jurisdiction of the Commissioner in an appeal being  brought pursuant to Education Law §310.

3. The claim has been untimely filed and such the failure to timely file the application has not been excused. For example, if an appeal to the Commissioner must be commenced within 30 days from the making of a decision or the performance of the act complained of, a delay in filing the application may excused by the Commissioner for good cause shown.

4. The Commissioner lacks jurisdiction. For example, the Commissioner will not adjudicate claims which may be raised in a court of competent jurisdiction nor impose discipline on district employees as employee discipline is within a school district's exclusive jurisdiction and generally subject to procedures established in statute or in applicable collective bargaining agreements and/or employment contracts.

5. If a petition seeks to have the Commissioner discipline a named individual who is a "school district employee" rather than a "school officer," school employees are not subject to discipline by the Commissioner pursuant to Education Law §306.* The Commissioner lacks jurisdiction to impose discipline on BOCES and school district employees, which includes the placement of letters of reprimand in an employee’s file. Such employee discipline is within a BOCES' or school district’s exclusive jurisdiction and generally subject to procedures established in statute or in applicable collective bargaining agreements and, or, employment contracts.

6. A necessary party has not been served. A necessary party is one whose rights would be adversely affected by a determination of an appeal in favor of a petitioner and must be joined as such. "Joinder" requires that an individual be clearly named as a respondent in the caption of the appeal and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense.

7. In the event the appeal seeks the removal of a school officer, the notice accompanying a removal application must specifically advise the school officer that an application is being made for his or her removal from office. For purposes of Education Law §306, “school officers” include trustees, members of boards of education, clerks, collectors, treasurers, district superintendents, or “other school officer[s].” The Commissioner of Education lack jurisdiction to remove a school district employee who is not a school officer as so defined.

8. The petition submitted to the Commissioner's Office of Counsel has not been "verified."

9. There must be proper service of the petition and the affidavit of service must be filed with the petition indicating that the petition was served as required by 8 NYCRR §275.8(a). §275.8(a) is set out below:

(a) Petition.

A copy of the petition, together with all of petitioner's affidavits, exhibits, and other supporting papers, except a memorandum of law (unless the appeal is a charter school location/co-location appeal pursuant to section 276.11 of this Title, in which case the memorandum of law shall be served with the petition) or an affidavit in support of a reply, shall be personally served upon each named respondent, or, if a named respondent cannot be found upon diligent search, by delivering and leaving the same at the respondent's residence with some person of suitable age and discretion, between six o'clock in the morning and nine o'clock in the evening, or as otherwise directed by the commissioner.

If a school district is named as a party respondent, service upon such school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education of such school district, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service.

If a board of cooperative educational services is named as a party respondent, service upon such board shall be made personally by delivering a copy of the petition to the district superintendent, to a person in the office of the district superintendent who has been designated by the board to accept service, or to any member of the board of cooperative educational services.

Pleadings may be served by any person not a party to the appeal over the age of 18 years.

If the last day for service of the petition falls on a Saturday or Sunday, service may be made on the following Monday; and if the last day for such service falls on a legal holiday, service may be made on the following business day.

10. Also it should be noted that the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310.

Below is a listing of the several Parts of 8 NYCRR addressing "Appeals and Other Proceedings Before the Commissioner." Below are links to these several Parts.

Part 275 Parties and Pleadings

Part 276 Rules of Practice

Part 277 Practice on Application for Removal of School Officers

Part 278 Practice on School District Reorganization Hearings

Part 279 Practice on Review of Hearings for Students with Disabilities

Part 280 Overlapping State and Federal Requirements

Part 281 Appeals to Commissioner Pursuant to Education Law Section 3020(3)

* Although all school officers are employees of the school district, not all school district employees are school officers.

The Trojahn decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17360

Some due process consideration in the event an employee is terminated from his or her probationary period

Some due process consideration in the event an employee is terminated from his or her probationary period

Marshall v Simon, 2018 NY Slip Op 02327, Appellate Division, Second Department

Terminated from his probationary employment as a correction officer, Evan Marshall, [Petitioner] challenged his dismissal, alleging, among other things, that his probationary period had ended prior to his termination and that he was therefore entitled to certain protections under the Civil Service Law as a "tenured" employee. In effect, Petitioner was contending that he had attained tenure by "tenure by estoppel,* sometimes referred to as "tenure by acquiescence" by operation of law.* 

Supreme Court denied Petitioner's claims and dismissed the proceeding. The Appellate Division affirmed, explaining "A probationary employee may 'be dismissed for almost any reason, or for no reason at all' [and] may be terminated without a hearing** and without a statement of reasons in the absence of a demonstration that the termination was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law."

It appears that Petitioner's probationary term was extended by the number of days that Petitioner had not perform the duties of the position due to absence from work. Citing Tomlinson v Ward, 110 AD2d 537, affirmed 66 NY2d 771, the Appellate Division observed that a probationary period "... is designed to enable the appointing officer to ascertain the fitness of the probationer and to give the probationer a reasonable opportunity to demonstrate the ability to perform the duties of the office [and] [t]he period should be measured by the number of days a probationer is actually working at the job".

For example, 4 NYCRR 4.5, which applies to Classified Service employees of the State as the employer, requires such an extension although it also permits an appointing authority to exercise discretion and consider a portion of such absence as probationary service. Although an appointing authority may be permitted to count part of such absences as time served in the probationary period, this is discretionary. In contrast, the State’s Military Law provides that a probationer who enters military service during his or her probationary period will be deemed to have satisfactorily completed his or her probationary period if honorably discharged from the service and timely returns to his or her position.

Finding that Petitioner's probationary period was properly extended for 25 days to reflect his absences from work, the court ruled that Petitioner's "termination therefore occurred while he was a probationary employee." Noting, further, that Petitioner did not demonstrate, or even adequately allege, that he was terminated in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law. the Appellate Division held that Supreme Court properly denied Marshall's petition and dismissed the proceeding.

* As the Court of Appeals ruled in McManus v Hempstead Union Free School District, 87 NY2d 183, a probationary employee may attain tenure by estoppel [sometimes referred to as “tenure by acquiescence”] when the appointing authority accepts the continued services of the individual, but fails to take the action required by law, rule or regulation to either grant or deny the individual tenure prior to the expiration of the employee’s maximum period of probation. One significant exception to this rule, in Mendez v Valenti, 101 AD2d 612, the Appellate Division held that in the event a probationary employee is continued on the payroll for a brief period after the expiration of his or her probationary period for administrative convenience, such as to coincide with the end of a payroll period, such continuation on the payroll does not automatically result in the individual attaining tenure by estoppel.

** After completing his or her minimum period of probation, a probationary employees may be discharged at any time without charges preferred, a statement of reasons given or a hearing held. A probationary employee so terminated, however, may be entitled to a "name-clearing" hearing where the basis for dismissal is of a "stigmatizing nature" as the individual so terminated is entitled to some due process to permit him or her to clear his or her name [see Matter of Stanziale, 55 NY2d 735]. In any event, absent a violation of a constitutional or statutory provision of law, reinstatement to his or her former position is not a remedy available to the individual should he or she prevail at his or her name-clearing hearing.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02327.htm

An autopsy of a Freedom of Information request

An autopsy of a Freedom of Information request
Gartner v New York State Attorney General's Off., 2018 NY Slip Op 02381, Appellate Division, Third Department

New York State's Freedom of Information Law [FOIL] is based on the concept that all government records and document should be available to the public except where such disclosure is prohibited by law.* Indeed, there is no bar to providing information pursuant to a FOIL request, or otherwise, that could be denied pursuant to one or more of the exceptions set out in FOIL that the custodian could rely upon in denying a FOIL request, in whole or in part. 

Further, a formal 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 formal FOIL request to obtain the desired information or records. 

Barbara Gartnersubmitted a Freedom of Information [FOIL] request to the Office of the New York State Attorney General [OAG] seeking certain information.. The OAG told Ms. Gartner that it had located 505 pages that were responsive to her FOIL request and specified the cost and method of obtaining those documents.

Ms. Gartner sent a check in the amount specified but OAG then informed her that "due to a change in circumstances" in related litigation "the 505 pages that were identified for disclosure were now being withheld as exempt." In response to her administrative appeal challenging this decision, it was determined that Ms. Gartner was entitled to the 195 pages of documents that were already publicly available on the Attorney General's website and five pages of partial redacted documents but  OAG could withhold the remaining pages.*

A few months later, following resolution of the relevant litigation, Ms. Gartner resubmitted her FOIL request. OAG denied the request, concluding that all documents were exempt. Following the denial of her administrative appeal of this decision, Ms. Gartner initiated a CPLR Article 78 proceeding challenging that denial. The parties negotiated a settlement in which Ms. Gartner agreed to withdraw her petition without prejudice in exchange for the disclosure of 305 of the 310 pages that were not already publicly available. As part of the settlement, the Attorney General's Office confirmed that the 505 pages that had previously been identified as responsive represented "the entire universe of documents that respond to the subject FOIL request."

Ms. Gartner reviewed the 305 pages she had received and then realized that they referenced other documents that she had not received. She then commenced this second CPLR Article 78 proceeding seeking an order compelling OAG to conduct a diligent search for responsive documents, permitting her or an independent third party to examine the files maintained by OAG to determine whether they provided all of the responsive documents, compelling OAG to disclose all records withheld or redacted or submit them for an in camera review by the court, and awarding her counsel fees.

OAG then voluntarily supplied unredacted copies of all pages that had previously been disclosed and the remaining five pages of the original 505 pages and subsequently provided Ms. Gartner with 56 additional pages. OAG then provided the court with 949 additional pages that they withheld based on claimed exemptions for intra-agency materials, inter-agency materials and attorney work product for its review in camera together with an affidavit listing which exemption applied to each group of pages.

Supreme Court concluded that the 949 pages were properly withheld under the stated exemptions, but awarded Ms. Gartner  counsel fees based on the way that OAG "had handled the FOIL request." Ms. Gartner appealed the court's decision.

Addressing Ms. Gartner contentions that OAG "must be ordered to conduct a further diligent search for responsive records, provide a new certification of a diligent search and/or allow petitioner or an independent party to conduct such a search" the Appellate Division said:

1. "When faced with a FOIL request, an agency must either disclose the record sought, deny the request and claim a specific exemption to disclosure, or certify that it does not possess the requested document and that it could not be located after a diligent search".

2. Supreme Court did not err in determining that OAG had conducted and certified a diligent search, as required.

3. There is no legal authority to allow a petitioner or independent third party to conduct a search of an agency's records to locate responsive documents and such a search would be improper because it would inevitably permit the person to view agency records that were not responsive or that were exempt from disclosure.

As to the propriety of OAG withholding of document, FOIL presumes that government documents are available for inspection and copying unless they are statutorily exempt by Public Officers Law §87(2). The Appellate Division then addressed the authority of the custodian of the documents demanded to withholding them, noting that the agency resisting disclosure under FOIL bears the burden of showing that the responsive document "falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access.

With respect to OAG's reliance on the exemptions for intra-agency and inter-agency materials and attorney work product the court explained that "An exemption from FOIL disclosure exists for intra-agency and inter-agency materials, but there are exceptions — meaning that disclosure is permitted — if the document consists of, among other things, 'statistical or factual tabulations or data' [and] Factual data . . . simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making."

Upon the Appellate Division's in camerainspection of the documents, it concluded that "most of the pages alleged to be intra-agency materials are exempt because they contain ideas or opinions exchanged between employees of the Attorney General's Office." However, continued the Appellate Division "the documents on pages 1 and 286 contain factual information without any opinion, rendering them nonexempt" while certain other documents are not exempt because they deal with the scheduling of meetings, rather than any deliberative process."

OAG also claimed that FOIL exempts intra-agency materials applies to inter-agency materials and communications shared between different government agencies to assist a decision maker in one agency in reaching a determination, the communications between the OAG and counsel for another State Agency. Pointing out that OAG and agency counsel were "not interacting with the Attorney General's Office in that capacity," nor was it assisting the government entity but rather OAG was more akin to a separate party to the litigation than an advisor to the government entity.

The court then ruled that considering these circumstances and the positions of the parties in these interactions, the inter-agency exemption does not apply and will not preclude disclosure of communications between these entities and thus the documents OAG alleged fell within this FOIL exemption are subject to disclosure.

With respect to OAG's arguments found on its assertion that numerous documents are exempt from disclosure because they represent attorney work product the court agreed that Public Officers Law §87(2)(a) exempts from FOIL disclosure any materials "specifically exempted from disclosure by state or federal statute" privileged communications between attorneys and their clients exchanged in the course of obtaining legal advice or services. However, observed the Appellate Division, not every word written by a lawyer "enjoys the absolute immunity of work product" and "the exemption should be limited to those materials which are uniquely the product of a lawyer's learning and professional skills, such as materials which reflect his or her legal research, analysis, conclusions, legal theory or strategy."

Nor may OAG claim the attorney work product privilege for work done by a private law firm on behalf of a non-government client which documents were then sent to the OAG as the confidentiality and the related privilege is waived by intentionally sending the documents to a third party.

The Appellate Division concluded that OAG had failed to meet its burden of establishing that the relevant pages — "drafts of legal documents and the letters and emails sent to and from counsel for any party to the various court proceedings" and Ms. Gartner is entitled to disclosure of those pages. In contrast, said the court, "the handwritten notes prepared by an Assistant Attorney General, and apparently never shared with anyone outside that office, are exempt as attorney work product."

* Education Law, §1127 - [Confidentiality of records] and §33.13, Mental Hygiene Law [Clinical records; confidentiality] are examples of such statutory prohibitions. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02381.htm