Determining if a "non-governmental entity" is an "agency" within the meaning of the New York State's Freedom of Information Law and thus subject to its provisions

As the Court of Appeals opined in Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, New York State's Freedom of Information Law [FOIL] "expresses this State's strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies."* For the purposes of FOIL, the term agency includes "any ... governmental entity performing a governmental ... function for the state or any one or more municipalities thereof." 

On occasion, however, a nongovernmental organization may be found to fall within the ambit of the term "agency" as described in FOIL and thus be deemed to be subject to its mandates with respect to the public's access to its records and documents.

Among the attributes of an entity that may be considered by courts in determining whether a nongovernmental organization is "an agency" for the purposes of FOIL are the following:

1. Is the organization required to disclose its annual budget?

2. Are the organization's offices in a public building?

3. Is the organization subject to a governmental entity's authority with respect to the hiring or firing personnel?

4. Does the organization have a board comprised primarily of governmental officials?

5. Was the organization created exclusively by a governmental entity?

6. Does the organization describes itself as an agent of a governmental entity?

When an emergency medical technician [Plaintiff] submitted a FOIL requests for certain records related to the rejection of Petitioner's application to be reinstated as a member of the Cortlandt Community Volunteer Ambulance Corps, Inc. [Ambulance], Ambulance "declined the requests on the ground that it was not an 'agency' required to comply with FOIL as defined in Public Officers Law §86(3)." In response, Plaintiff filed a petition pursuant to CPLR Article 78 seeking a court order directing Ambulance to produce the requested records, which petition Supreme Court granted.

Ambulance appealed and the Appellate Division vacated the Supreme Court's order and "on the law and the facts," denied Plaintiff's petition "in its entirety" and dismissed the proceeding. The Appellate Division had determined that Ambulance "does not fall within the definition of an agency" for the purposes of FOIL and thus was not subject to the requirements of FOIL.

Ambulance, said the court is a "not-for-profit corporation" that has contracted with the Cortlandt Ambulance District No. 1 [District], a subsidiary of the Town of Cortland, to provide emergency medical services to persons located within the District for a fixed annual sum.

The contract between the parties provides that Ambulance is to comply with "all orders, rules, regulations and demands made by the Town" in order to provide "adequate ambulance protection to residents within the District" and this constituted the only involvement of the Town and District with respect to operation of Ambulance. Neither the Town nor the District had formed and incorporated Ambulance and neither has the authority to select or appoint Ambulance's directors, officers, or members of Ambulance. For its part, Ambulance is not required to submit its budget to the Town or District for review nor does either the Town or the District have authority to approve Ambulance's budget or review or audit Ambulance's financial books and records.

The Appellate Division also noted that Ambulance receives the majority of its funding from sources other than the payments it receives from the District pursuant to the contract and purchases all of its equipment, supplies, and services from its own assets. 

Further, Ambulance receives no funding from the Town or District apart from the agreed upon contract payments and Ambulance is solely responsible for the maintenance and expenses related to its buildings, has the authority to hire staff, who are solely its employees, and it obtains its own workers' compensation policy for coverage of its employees and members. None of Ambulance's personnel are covered by the workers' compensation policy maintained by the District or the Town for their respective employees and volunteers and neither the District nor the Town has authority to review or approve contracts entered into by Ambulance for professional or other services it deems necessary for its operation.

Considering the defacto relationship of the parties, the Appellate Division concluded that "Under these circumstances, it cannot be said that Volunteer Ambulance is a 'governmental entity performing a governmental . . . function' so as to render it an agency subject to the mandates of FOIL."

In contrast, in Ryan v Mastic Volunteer Ambulance Co., 212 AD2d 716, the Appellate Division determined that Mastic Volunteer Ambulance Company [Mastic] was an "agency" within the meaning of FOIL.

The Ryan court found that Mastic performed a governmental function and it performs that function solely for the Mastic Ambulance District, a municipal entity and a municipal subdivision of the Town of Brookhaven. Further, Mastic submitted a budget to, and receives all of its funding from, the Town and Mastic's allocation of its funds is "scrutinized by the Town."

Thus, concluded the court, Mastic "clearly falls within the definition of an agency" as defined in FOIL and is subject to its provisions."

* The basic concept underlying FOIL is that all government documents and records, other than those having access to them specifically limited or prohibited by statute, are to be made available to the public upon request. The custodian of the records or documents requested may elect, but is not required, to withhold those items that are otherwise within the ambit of the several exemptions permitted by FOIL otherwise consistent with law. As to the release of public records specifically limited by statute, examples include Education Law §1127 [Confidentiality of records] and §33.13 of the Mental Hygiene Law [Clinical records, confidentiality]. 

The Cortlandt Community Volunteer Ambulance decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_02881.htm

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