Keeping the name and other personnel information contained in official documents disclosed to the public confidential

Supreme Court, New York County, dismissed the CPLR Article 78 petition filed by Plaintiff to annul a decision of the New York City Office of Trials and Hearings [OATH], denying Plaintiff 's request that OATH "redact his name and other personal information from any document it disclosed to the public" and order the municipal respondents to keep the OATH reports of Plaintiff and all others similarly situated confidential.

Plaintiff appealed the Supreme Court's ruling, contending that the report and recommendations issued by OATH were "confidential" within the meaning of Civil Rights Law §50-a.*

Citing Niagara Mohawk Power Corp. v New York State Department of Environmental Conservation, 169 AD2d 943, the Appellate Division dismissed Plaintiff's appeal as moot, explaining that because the report objected to by Plaintiff has been publicly available from multiple sources, including the OATH and LEXIS websites, for a considerable period of time, it could not provide Petitioner any meaningful relief.

In addition, it should be noted that with respect to the publication of reports of judicial, quasi-judicial, legislative and other official actions, §74 of New York State's Civil Rights Law provides that "A civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding, or for any heading of the report which is a fair and true headnote of the statement published." This section, however, does not apply to actions involving alleged libel contained in any matter "added by any person concerned in the publication or in the report of anything said or done at the time and place of such a proceeding which was not a part thereof."

* Civil Rights Law §50-a provides that " All personnel records used to evaluate performance toward continued employment or promotion, police officers, firefighters and correction officers are confidential."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05627.htm

Pew Charitable Trusts survey of state-run public pension systems

A Pew Charitable Trusts survey reports that poorly funded pension plans for state and local public employees experienced "financial erosion" in recent years despite strong investment returns.

These findings are presented in a new report from The Pew Charitable Trusts that surveys the health of state-run public pension systems.

Based on Governmental Accounting Standards Board criteria, in 2017 only 8 states were at least 90% funded. In contrast, as of 2017, 24 public retirement systems were reported as being below 70% funded according to the Pew report.

The New York State and Local Employees' Retirement System/New York State Police and Fire Retirement System report that for fiscal 2018, the most recent figures available, the market value of assets [MVA] was 98.0% funded and the actuarial value of assets [AVA] was 95.0% funded.

The New York State Teacher's Retirement System reports that as of July 1, 2018, the most recent figure available, the Teacher's Retirement System was 101% funded based on the market value of assets (MVA) and 99% funded based on the actuarial value of assets (AVA).

For information about Pew's "Retirement Savings" project, please visit: https://www.pewtrusts.org/en/projects/retirement-savings/about

Source: Government Executive Media Group Route Fifty article by Bill Lucia, Senior Reporter.

A probationary employee is entitled to serve for a specified minimum period of time to demonstrate his ability to satisfactorily perform the duties of the position to which he was appointed

Plaintiff brought this CPLR Article 78 to review a determination of the New York City Department of Correction terminating Plaintiff from employment as a correction officer prior to the end of his probationary period. Supreme Court denied the Plaintiff's petition and dismissed the action, which ruling was affirmed by the Appellate Division.

The Appellate Division explained that a probationary employee may "be dismissed for almost any reason, or for no reason at all," citing Matter of Venes v Community School Bd. of Dist. 26, 43 NY2d 520." In the words of the Appellate Division, "The employment of a probationary employee 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."

The Appellate Division's reference to "decisional law" points to significant exception to its statement that "... a probationary employee may be terminated without a hearing and without a statement of reasons....."

In York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.”

The rationale underlying this exception, requiring "notice and hearing in the event a probationer is being terminated prior to the completion of his minimum probationary period, is that the individual is entitled to serve for a minimum period to demonstrate his ability to satisfactorily perform the duties of the position to which he was appointed.

Addressing the merits of Plaintiff's, the Appellate said he failed to demonstrate, or even adequately allege, that his employment was terminated in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04706.htm

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The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State. To order your copy of The Discipline Book, please go to: http://thedisciplinebook.blogspot.com/

New York State's local government tax cap to remain at two percent for calendar 2020

Property tax levy growth for all counties, towns, fire districts, 44 cities and 10 villages having fiscal years that close on Dec. 31 will be capped at 2 percent for the 2020 fiscal year according to a statement released by New York State Comptroller Thomas P. DiNapoli dated July 11, 2019. 

The tax cap, which first applied to local governments in 2012, limits tax levy increases to the lesser of the rate of inflation or 2 percent with some exceptions, including a provision that allows municipalities to override the tax cap. During the 2014 through 2018 fiscal years, municipalities with a fiscal year ending on Dec. 31 had their levy growth capped at less than 2 percent.

For a list of allowable levy growth factors for all local governments, visit: https://www.osc.state.ny.us/localgov/realprop/pdf/inflation_allowablegrowthfactors.pdf

Paid Family Leave information for employers in the public sector and the private sector

New York State offers complete details and resources on Paid Family Leave at PaidFamilyLeave.ny.gov, including a special page for public employers. Help is also available via a toll-free Paid Family Leave Helpline at (844) 337-6303, Monday through Friday, 8:30 a.m. – 4:30 p.m.