A police officer's personnel records are exempt from disclosure pursuant to the Freedom of Information Law during and after he or she leaves public service

Public Officers Law §87[2][a]) provides that "[a]ll personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency . . . [,] shall be considered confidential and not subject to inspection or review without the express written consent of such police officer . . . except as may be mandated by lawful court order."

The custodian of the relevent records denied Plaintiff's New York State's Freedom of Information Law [FOIL request for documents concerning complaints filed concerning a retired New York City police officer [Detective], together with reports of the outcome of any investigations into such complaints. Plaintiff had sought such records on the theory that such records were not, or were no longer, "personnel records used to evaluate performance toward continued employment or promotion" of police officers, firefighters and correction officers.*

Arguing that Civil Rights Law §50-a(1) was inapplicable because [1] the police officer was now retired and [2] the requested records are not "personnel records" because the custodian of the records was employed by an agency independent from the former Detective's employer, Plaintiff challenged the custodian's decision by initiating a CPLR Article 78 action seeking a court order to compel production of any such records. Supreme Court, in effect, denied the petition and dismissed the proceeding and Plaintiff appealed the Supreme Court's ruling.

The Appellate Division disagreed with Plaintiff's contention that Civil Rights Law §50-a(1) does not apply to the records demanded held by the custodian, explaining:

1. An agency "may deny access" to records that "are specifically exempted from disclosure by state or federal statute."

2. Civil Rights Law §50-a(1) provides that "[a]ll personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency . . . [,] shall be considered confidential and not subject to inspection or review without the express written consent of such police officer . . . except as may be mandated by lawful court order."

3. In Matter of Prisoners' Legal Services of New York v New York State Dept. of Correctional Servs., 73 NY2d 26, the Court of Appeals held "whether a document qualifies as a personnel record under Civil Rights Law §50-a(1) depends upon its nature and its use in evaluating an officer's performance — not its physical location or its particular custodian."

The Appellate Division then observed that records of civilian complaints, "regardless of where they are kept," could be used to harass or embarrass police officers, which is exactly what Civil Rights Law §50-a was intended to prevent and the Court of Appeals has recently held that disciplinary records arising from civilian complaints against police officers are the very sort of record presenting a potential for abusive exploitation and intended to be kept confidential under Civil Rights Law §50-a.**

Focusing on the application of these provisions to "former police officers," the court said it agreed with ruling by the Appellate Division, Third Department, in Matter of Columbia-Greene Beauty Sch., Inc. v City of Albany, 121 AD3d 1369 that "a police officer's personnel records continue to be exempt from disclosure after he or she departs from public service."

Rejecting Plaintiff's contention that the potential for personnel records to be used to embarrass or harass police officers during litigation ceases to exist after their retirement, the Appellate Division opined that "[a] retired police officer might 'still [be] involved in an open or pending case' and ... in that context, the requested documents have the potential to be used to degrade, harass, embarrass or impeach his [or her] integrity." Indeed, observed the court, Detective "has been called to testify numerous times since his retirement."

Holding that the custodian of the records met its burden of showing "a substantial and realistic potential for the abusive use of the requested material against [Detective]," the Appellate Division sustained the lower court's ruling denying access to the records demanded by Plaintiff.

* Civil Rights Law §50-a.1.

** See Matter of New York Civ. Liberties Union v New York City Police Dept., 32 NY3d 556

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_02875.htm

Factors considered by courts in evaluating the disciplinary penalty imposed on an employee found guilty of misconduct

Supreme Court denied an Educator's petition seeking to vacate the determination of the New York City Board of Education [DOE] terminating her from employment after a Disciplinary Hearing Officer had found her guilty of a number of charges and specifications.

The Appellate Division said that the hearing officer's findings had a rational basis and were supported by adequate evidence and  included a finding that Educator had  abdicated her responsibilities as a teacher in violation of school protocol by "leaving a student in crisis with a school aide," and other incidents that the court's decision characterized as "causing unwelcome confusion for the student and her family."

Citing Bolt v New York City Department of Education, 30 NY3d 1065, the Appellate Division noted that considering "controlling precedent," its sense of fairness was not shocked by DOE's imposing the penalty of termination following the Educator's being found guilty of the several charges and specifications filed against her.  The Appellate Division also noted Educator's "poor judgment, and her failure to take responsibility for her actions or demonstrate any remorse gave no indication that her inappropriate behavior was likely to change."

The court then opined that absent a disciplinary penalty being obviously disproportionate to the misconduct and in contravention of the public interest and policy reflected by the agency's mission, in this instance "the mere fact that a penalty is harsh, and imposes severe consequences on an individual," did not affront its sense of fairness that it shocked the conscience of the court.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_02962.htm

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A Reasonable Disciplinary Penalty Under the Circumstances - Determining 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

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Setting the terms and conditions of a disciplinary probationary period

Pleading nolo contendere* to criminal charges that he had recklessly operated his personal automobile while off-duty, a New York City police officer and the New York City Police Department "disposed" of the subsequent administrative disciplinary action taken against the officer by entering into a "settlement agreement." Under the terms of the settlement agreement the officer was placed on "disciplinary probation" for a specified period. This meant that the tenure he previously enjoyed was suspended for the duration of the disciplinary probationary period agreed upon and he could be summarily dismissed at any time during the probationary period by the appointing authority without notice and hearing.

While in disciplinary probationary status the police officer was arrested on assault charges alleged by a third party, which led to the officer being summarily dismissed from his position. 

Subsequently the assault charges were withdrawn. The officer then sued, seeking a court order directing his reinstatement to his former position, an awarded of back pay and an order directing the Police Department to give him a "name-clearing hearing." Supreme Court dismissed his CPLR Article 78  petition and the officer appealed the ruling to the Appellate Division.

Addressing the police officer's contention that he was unlawfully terminated and therefore should be reinstated to his former position with back salary and benefits, the Appellate Division said that as a probationary employee the officer could be dismissed without a hearing or a statement of reasons. Only in the event the officer demonstrated that his dismissal was made in bad faith or was for a constitutionally prohibited reason or was prohibited by statutory or case law could the officer claim wrongful discharge.**

In contrast, in the event the stipulation establishing the employee's "disciplinary probation period" sets out the acts or omissions that could trigger the individuals being summarily termination from his or her position, the employee may be summarily terminate without notice and hearing only in the event he or she is found to have violated the specified term or condition stipulated in the disciplinary probationary period agreement.

This point is illustrated in ruling by the Appellate Division in Taylor v Cass, 505 NY2d 929.

Under the terms of a disciplinary settlement, Taylor could be terminated without any hearing if, in the opinion of his superior, his job performance was adversely affected by his consumption of alcohol. 

Taylorwas subsequently summarily terminated from his position for allegedly sleeping on the job without notice and hearing and initiated an Article 78 proceeding against his former employer seeking reinstatement to his former position.

Although the employer contended that it terminating Taylor without a hearing was permitted under the terms of the disciplinary settlement agreement, the Appellate Division disagreed and directed the agency to reinstate Taylor to his position with back pay and benefits.

The court pointed out that the reason given for summarily terminating Taylor -- sleeping on the job -- was not a reason justifying his being summarily dismissed from his position authorized by the settlement agreement. The court explained that under the terms of the settlement agreement Taylor could only be terminated without a hearing if he was found to have violated the specific reason set out in the agreement, i.e., his performance of his duties was unsatisfactory because of his consumption of alcohol. 

* Nolo contendere is a plea by which a defendant in a criminal prosecution accepts his or her of conviction of the charge or charges as though he or she had entered guilty plea but does not actually admit guilt. A plea of "nolo contendere," however, has the same primary legal effects as had the individual entered a plea of "guilty as charged."

** See Green v New York City Police Department, et al., 235 AD2d 475.  The Appellate Division  also rejected the police officer's demand for "a name-clearing hearing," explaining that a former employee is entitled to a name clearing hearing only if he or she can demonstrate that the employer publicly disclosed false and stigmatizing reasons for his or her termination.

The Taylor decision is posted on the Internet at:

https://www.leagle.com/decision/19861007122ad2d8852320

Evaluating conflicting testimony and the credibility of witnesses in a disciplinary hearing

A court may not weigh the evidence or reject the choice made by the hearing officer in a disciplinary proceeding where there is conflicting evidence and room for choice exists. Where  there is room for choice, the court may not substitute its judgment for that of the hearing officer regarding the credibility of the witness.*

In Crossman-Battisti v Traficanti, Appellate 235 A.D.2d 566, the Appellate Division rejected the employee's claim that all the witnesses had motives to lie and fabricate their testimony, finding that there was no basis "to disturb the resolution of issues of credibility implicit in [the employer's] determination [and] the duty of weighing the evidence and making the choice between conflicting inferences which can be drawn from the evidence is for the administrative agency, not the courts."

Citing  Matter of Di Vito v State of New York, Dept. of Labor, 48 N.Y.2d 761, the Appellate Division explained that considering "the broad discretion afforded to an administrative agency in cases involving internal discipline," it would not substitute its judgment for that of the appointing authority.

Addressing the employee's "retaliation defense" for whistle-blowing asserted in her answer [see Civil Service Law §75-b(3)], the court opined that the whistle-blowerdefense "applies only where the disciplinary proceeding is based solely on the employer's unlawful retaliatory action." Where, as here, explained the Appellate Division, "the employer presented evidence of specific incidents of inappropriate conduct which are found to demonstrate a separate and independent basis for the action taken, a defense under Civil Service Law §75-b cannot be sustained."

As to the penalty imposed by the appointing authority, termination of the employee, the court ruled that "there is no basis to disturb the penalty of dismissal imposed in this case, which we do not find so disproportionate to the offenses as to be shocking to one's sense of fairness," applying the Pell Doctrine.**

The Appellate Division sustained the agency's terminating the employee after finding her guilty of "unauthorized activity, altercations with other employees, unauthorized absences and abuse of leave time."

* Kolanik v Safir, 231 A.D.2d 720.

** Matter of Pell v Board of Educ., 34 N.Y.2d 222.

The decision is posted on the Internet at:

https://www.leagle.com/decision/1997801235ad2d5661271

Establishing a prima facie case of unlawful discrimination triggers the McDonnell Douglas Corp. protocols used to evaluate employee's claims

In this appeal the United States Circuit Court of Appeals, Second Circuit, considered the employee's [Plaintiff] challenge to a federal district court's summarily dismissing his Title VII  complaint  "in the entirety" on the motion of his former employer [Defendant] and the lower court's dismissal of his New York City Human Rights Law"* allegations. Essentially Plaintiff alleged that Defendant had unlawfully discrimination against him on the basis of his race, ethnicity, or national origin in violation of Title VII.

The Circuit Court observed that summary judgment must be granted to the moving party “if the pleadings, the discovery and disclosure materials [in] the files, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” The court then explained that a petitioner's federal law unlawful discrimination claims are to be analyzed under the three-step McDonnell Douglas burden-shifting framework, in which the employee must initially present a prima facie case of unlawful discrimination.**

By establishing a prima facie case of unlawful discrimination, the employee shifts the burden of going forward to the employer, requiring the employer to articulate a legitimate, non-discriminatory reason for its actions.

In the event the employer presents a legitimate, non-discriminatory reason for its actions, the burden of going forward then shifts back to the employee, who must now show that the employer’s explanation or justification for its action is merely a "pretext" in order for the individual to go forward with his or her claim of unlawful discrimination.

In this action the federal district court held that although the Plaintiff satisfied the requirements of articulating a prima facie case of unlawful employment discrimination, the Defendant, citing the Plaintiff's poor work performance, had set out a legitimate, non-discriminatory basis for its dismissing Plaintiff from his position. The district court then rejected Plaintiff's contention that the Defendant's allegation of "poor work performance"  as its justification for Plaintiff's termination was "mere pretext" for its action.

Thus, in the words of the Circuit Court, the central issue on appeal is were the reasons advanced by the Defendant as justification for its action "pretext." The Circuit Court decided that the Plaintiff had, in fact, demonstrated the existence of a triable issue of fact as to whether Defendants' proffered reason for his dismissal was mere pretext.

The court observed that in both Plaintiff's federal district court complaint and in an exhibit to his complaint to the New York State Division of Human (sic), Plaintiff asserted that he had overheard one of the named Defendants state during a phone to another party that she “know[s] how to terminate this stupid [referring to Plaintiff's nationality] guy” and submitted other evidence of discriminatory animus towards him, including additional comments made by said Defendant to others.

In reviewing a district court’s grant of summary judgment de novo, and "construing the evidence in the light most favorable to the non-moving party," here the Plaintiff, and drawing all reasonable inferences in the non-moving party's favor,” the Circuit Court concluded that "it [was] for the jury to determine whether to credit Plaintiff's representation, and vacated both of the federal district court’s rulings.

The Circuit Court then remanded the matter to the federal district court "for further proceedings consistent with this order."

* The Circuit Court noted that with respect to Plaintiff's New York City Human Rights Law claim, which it considered separately, it was “construing [its] provisions broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible", citing Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102.

** McDonnell Douglas Corp. v. Green, 411 U.S.792.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/958d92a9-8f01-4893-bdc0-4a764f2d7068/4/doc/17-1051_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/958d92a9-8f01-4893-bdc0-4a764f2d7068/4/hilite/