Termination for ordinary disability pursuant to §73 of the Civil Service Law

§73 of the Civil Service Law, "Separation for ordinary disability," in pertinent part provides that in the event an employee on leave for ordinary disability pursuant to §72 of the Civil Service Law has been continuously absent from and unable to perform the duties of his position for one year or more by reason of a disability, other than a disability resulting from occupational injury or disease as defined in the Worker's Compensation Law, "his employment status may be terminated and his position may be filled by a permanent appointment."

The Town terminated a police sergeant [Petitioner] employed by the Town's Police Department pursuant to Civil Service Law §73. Petitioner, contending that the determination to terminate his employment was made in violation of lawful procedure and was affected by error of law, challenged the Town's action. Supreme Court denied Petitioner's CPLR Article 78 petition and dismissed the proceeding.

The Appellate Division subsequently affirmed the Supreme Court's ruling, opining that although an administrative determination may be annulled when it "was made in violation of lawful procedure [or] was affected by an error of law" there were no relevant issues of fact that would have necessitated a post-termination hearing, citing Prue v Hunt , 78 NY2d 364.* 

However, a §73 termination is not pejorative and a former employee may, within one year after the termination of the disability, apply to the civil service department or municipal commission having jurisdiction over the position last held by such employee for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission. 

If the former employee is found medially qualified to perform the duties of his former position he is to be reinstated. In there is no vacancy to which he may be appointed, the former employee's name is to be placed on a preferred list. Further, the individual is eligible for appointment to a vacancy in a similar position or a position in a lower grade in the same occupational field in his former department or agency. 

* NYPPL's summary of the Court of Appeals' decision in Prue is posted on the Internet at https://publicpersonnellaw.blogspot.com/2012/02/pre-termination-hearings-required-when.html 

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_04944.htm

 

 

Attorney disciplined after pleading guilty to misprision of felony

Misprision of felony" originated in English common law and constitutes a crime  wherein an individual having knowledge that a felony has been committed fails to inform the appropriate authorities of that event. 

This Appellate Division decision reports that an attorney [Respondent] "pleaded guilty, in the United States District Court for the Western District of New York to misprision of a felony* in violation of 18 USC §4." Respondent had served as the settlement attorney representing "The Funding Source" [TFS] in a number real estate transactions that involved loans insured by the Federal Housing Administration [FHA].

In the course of his participation in a number of New York State real estate transactions the Appellate Division found that Respondent had learned that his co-defendants were engaged in a scheme to fraudulently obtain mortgages on behalf of unqualified borrowers that were insured by the FHA. This involved the submission of certain documents knowing that certain information in those documents was false.** 

The Appellate Division's decision reports that although Respondent did not know the full extent of the scheme, he "became aware he was being used to defraud financial institutions and he failed to notify authorities of his codefendants' use of fraud to obtain funds from TFS." The decision also notes that "Respondent also took affirmative steps to conceal the fraud by signing, or having his paralegal sign, documents sent to the banks."

Respondent, said the court, had received fees in transactions in which he served as settlement attorney. In other transaction, in which Respondent was one of the three sellers and also represented the purchaser, the Appellate Division noted that he had received his initial investment plus a profit. 

With respect to such monies, the Appellate Division observed that "Respondent has paid restitution ... for the seven transactions in which he had served as settlement attorney."

Ultimately the Appellate Division granted the parties' in the instant action joint motion for discipline by consent and Respondent was "suspended from the practice of law in the State of New York for a period of two years, effective ... April 18, 2019, and until further order of this Court." 

* Citations to selected New York State decisions referencing "Misprision of Felony" are set out below. Click on the text highlighted in colorto access the text of the decision.

Matter of Fishman, 22 A.D.3d 100, 2005 NYSlipOp 06802

Matter of Calonge v Calonge, 52 AD3d 1111, 2008 NYSlipOp 05630;

Matter of Marino, 73 A.D.3d 5, 2010 NYSlipOp 01800;

Matter of McKenzie, 177 AD3d 134, 2019 NYSlipOp 06729;

People v Jenkins, 55 Misc 3d 1207(A), 2017 NYSlipOp 50449(U); and

People v Williams, 20 AD3d 72, 2005 NYSlipOp 04317.

** Respondent stipulated that [1] he stands convicted of a "serious crime" (see 179 AD3d 19);  [2] he violated the New York Rules of Professional Conduct; and [3] he is subject to discipline by the Appellate Division pursuant to 22 NYCRR 1240.12(c)(2). 

The instant decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_04813.htm 

 

Freedom of Information Law Rulings

Summaries of selected Freedom of Information Law [FOIL] court and administrative rulings posted on New York Public Personnel Law

Click on the text highlighted in color to access the text of the posting.

A “conclusory affidavit” by the custodian of the records that are the target of a FOIL request insufficient to trigger a FOIL “statutory exception”

A FOIL request seeking the names of a public retirement system’s retirees may be denied by the custodian of the records as exempt from disclosure

A Freedom of Information demand may trump an agreement to keep some or all of the terms of a disciplinary action settlement "confidential"

A Freedom of Information request for records concerning law enforcement operations may be denied

A peer-review panel member’s evaluation of an individual may be withheld from disclosure pursuant to a FOIL request

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

A state may deny access to records available to its citizens pursuant to its Freedom of Information Law to individuals not citizens of that state who make a FOIL request for such records

Access to documents under FOIL limited

Action for alleged defamation follows disclosure of document pursuant to a FOIL request 

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

An attorney’s advice sent by one layperson to another layperson not an attorney-client communication subject to a FOIL exception

An autopsy of a Freedom of Information request

An entity claiming that it is not subject to the State’s Freedom of Information Law has the burden to provide documentary evidence that conclusively establishes such a defense as a matter of law

An individual terminated pursuant to Civil Service Law §71 must be reinstated consistent with §71 once the individual has been found qualified to return to work by a medical officer selected by personnel department or civil service commission having jurisdiction

Another FOIL Lesson: Be mindful of your audience

Applying the exemption from releasing documents and records to the public pursuant to a FOIL request

Attorney-Client privilege and e-mail communications

Certain information contained in personnel records may be redacted in complying with a Freedom of Information request

Certain personnel records are exempt from disclosure pursuant to Public Officers Law §87(2)(a) and Civil Rights Law §50-a even in a redacted form

Challenging the denial of a Freedom of Information Law request on the representation that the records are exempt from disclosure

Charging a fee for the cost of reviewing and redacting requested video footage sought pursuant to New York State's Freedom of Information Law

Commissioner of Education does not have jurisdiction to resolve FOIL or Title IX appeals

Complying with administrative procedural requirements prior initiating litigation seeking information pursuant to the Freedom of Information Law

Conditioning the disclosure of material sought pursuant to a FOIL request upon the prepayment of costs authorized by statute

Confidentiality of disciplinary records based on an agreement not to disclose their contents

Confidentiality of police records

Correspondence exchanged between public officers and agencies and private consultants are within the ambit of the Freedom of Information Law

Court cites the “principle of stare decisis” in affirming a custodian of public record’s denial of a Freedom of Information Law request

Courts are to determine the appropriate balance between personal privacy and public interests in considering the appeal of a denial of a Freedom of Information [FOIL] request

Custodian of a public record may decline to release pre-decision materials prepared to assist in final decision making being sought pursuant to a Freedom of Information request

Decision highlights some essentials of the Freedom of Information Law

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

Disclosing the unlisted telephone numbers called by public officials pursuant to a FOIL request

Disclosure of public information or records to one is disclosure to all Disclosure of the terms of settlement agreements pursuant to a FOIL demand

Disclosure of public records pursuant to the Freedom of Information Law

Documents concerning an employee’s separation and post-termination employment benefits available under New York's Freedom of Information Law

Documents containing information used to evaluate the performance of specified public employees are not subject to disclosure pursuant to a Freedom of Information request

Duplicative FOIL requests

E-mails between a public employer and an applicant for public employment may be subject to disclosure pursuant to the Freedom of Information Law

Employee disciplined for alleged acts of misconduct that took place 20 years earlier

Employee organization may not rely of a FOIL request to obtain the names of charter school employees

Entities subject to the Open Meetings Law and the Freedom of Information Law

Exceptions to providing public records pursuant to New York State's Freedom of Information Law [FOIL]

Expanding exemptions from FOIL to protect "technology assets used to maintain public information"

FOIL amended

Exploring claimed procedural obstacles to demands for certain records pursuant to New York's Freedom of Information Law

Exploring claimed procedural obstacles to demands for certain records pursuant to New York's Freedom of Information Law

Failure of the custodian of a public record sought pursuant to a Freedom of Information Law request to respond to the request within the relevant time limit deemed a denial of the request

Failure to respond to a request for documents sought pursuant New York State's Freedom of Information Law

Filing a FOIL request for personnel records

Footage at issue captured by a body-worn-camera held not a "personnel record" within the meaning of §50-a of the Civil Rights Law

Freedom of information [FOIL] requests for information concerning health insurance plans

Freedom of information and speech

Freedom of Information in cases involving the termination of an employee – an advisory opinion

Freedom of Information requests

Freedom of Law only applies to public entities

Governor Cuomo signs Executive Order 8-149 providing for expediting the Freedom of Information Law appeals process

Home addresses of State employees and retirees may be excluded from disclosure in response to a FOIL request

If the custodian of a record demanded pursuant to the Freedom of Information Law refuses to provide the record, the custodian has the burden of showing that an exemption applies 

Misconduct off-duty and FOIL

Names of retired New York City police officers not available pursuant to a FOIL request

Neglecting to advise a party of the availability of an administrative appeal defeats a failure to exhaust administrative remedies defense

New York State's E-mail management and preservation policy

New York’s Freedom of Information Law does not permit the custodian of the records to routinely charge for employee time spent searching for documents responsive to a FOIL request

Objecting to producing certain documents demanded pursuant to a non-judicial subpoena duces tecum

Obtaining police personnel records pursuant to a Freedom of Information Law [FOIL] demand

Only a governmental not-for-profit corporation’s records is subject to FOIL

Police agency's records concerning breath alcohol measurement instruments may be obtained pursuant to a Freedom of Information Law request

Processing a Freedom of Information request

Processing Freedom of Information Law requests for disciplinary records of law enforcement personnel involving "unsubstantiated and unfounded complaints against an officer"

Providing the names and home addresses of employees of a private contractor to an employee organization to be determined by applying a “balancing test” to avoid an "unwarranted invasion" of privacy

Public Authority agrees to pay legal expenses incurred as a result of its not responding to a Freedom of Information request

Public benefit corporations are subject to the Open Meetings Law and the Freedom of Information Law as long as they remain public benefit corporations

Public employees personal E-mails exempt from disclosure from FOIL Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
 
Redacting certain content in a public record when responding to a Freedom of Information request

Redacting the name of the accused employee from the decision following a disciplinary hearing

Releasing the body camera footage recorded by equipment worn by a police officer

Remedying an inadvertent disclosure of records provided pursuant to a Freedom of Information Law request

Responding to a Freedom of Information Law request by neither confirming nor denying the existence of such information or data

Sanctions ordered after lawsuit filed pursuant to the Freedom of Information Law ruled frivolous

Seeking documents that the custodian of the records contends may be denied pursuant to one or more Freedom of Information Law “exemptions from disclosure”

Seeking information pursuant to a Freedom of Information [FOIL] request

Seeking public documents and records pursuant to New York State's Freedom of Information Law

Seeking public records the custodian contends are exempt from disclosure within the meaning of the Freedom of Information Law

Some guidelines to consider in determining the records to be delivered, in whole or in part, in responding to a Freedom of Information Law request

Some limitations to obtaining information pursuant to New York State's Freedom of Information Law

Standards used by courts in evaluating the denial of a Freedom of Information request for public records

State Senate required to provide employee payroll records in response to a Freedom of Information Law request

The “law enforcement exemption” in POL §87(2) (e) (iv) is not applicable to FOIL requests for documents that might result in administrative disciplinary action

The “personal records” exemption from disclosure set out in Civil Rights Law §50-a (1) applies to both active and former employees of the agency

The custodian of a public record must articulate particularized and specific justification for denying access to a record requested pursuant to the Freedom of Information Law

The custodian of public records demanded pursuant to a FOIL request electing to withhold some or all such records has the burden of demonstrating that the information requested falls within a statutory exemption

The custodian of the records has the burden of proving that information it withheld in responding to a FOIL request is within a FOIL exemption

The denial of a FOIL request by an entity subject to the Freedom of Information Law may not be based on the purpose for which the document or record was produced or the function to which it relates

The Freedom of Information Law does not require an agency to formulate a final determination in the event there is none in existence

The Freedom of Information Law typically does not require an entity to create records not in existence in order to satisfy a FOIL request

The government must honor its promise not to disclose the names of individuals asked to disclose certain information – at least for the present

Where disclosure is not barred by statute, claims of “unwarranted invasion of personal privacy" are resolved by a court weighing "privacy interests" against the public's interest in the information

Writ of mandamus to compel disclosure of records pursuant to FOIL

 

Former Lake George Watershed Coalition Director sentenced to 8-24 years for stealing nearly $250,000 in state grant funds

On September 10, 2020, State Comptroller Thomas P. DiNapoli and Warren County District Attorney Jason Carusone announced that David Decker, former director of the Lake George Watershed Coalition,* was sentenced to 8-24 years in prison by the Warren County Court after a jury convicted him of 6 felonies, including grand larceny in the second degree, scheme to defraud in the first degree and four counts of offering a false instrument for filing in the first degree, related to his diversion of federal and state grant funds meant to improve the area surrounding Lake George.

The jury convicted Mr. Decker after hearing evidence that he was double billing two different grants for the same work, one from the Town of Queensbury and another from the U.S. Department of Agriculture, Forest Services, in the amount of $135,000. Additionally, evidence at the trial showed that Decker pocketed over $100,000 in state grant funds meant to reimburse subcontractors whom he never paid. While the victims went unpaid, bank records showed that Mr. Decker withdrew funds from the Watershed Operating account at the Saratoga Race Course, Foxwoods MGM, Harrah’s and Turning Stone casinos. The records also show that he paid his personal credit card bills as well as numerous other personal expenses and inappropriately transferred grant money to his personal investment funds.

Mr. Decker was also convicted of filing four false tax returns which failed to report income from funds diverted from the grant programs as well as a for-profit basketball league for children.

“Mr. Decker helped himself to hundreds of thousands of dollars meant to help his community,” said State Comptroller Thomas P. DiNapoli. “Thanks to my partnership with District Attorney Carusone, the Department of Taxation and Finance, and the Warren County Sherriff’s Department, Decker’s shameless exploitation of his position of trust was exposed and he has now been held accountable for his actions.”

“David Decker’s years of illegal conduct harmed local businesses, government entities and not for profit organizations,” said District Attorney Jason Carusone. “The jury’s verdict and the court’s sentence send a strong message to the defendant that his ongoing criminal activity will not be tolerated. I thank the exceptional work of assistant district attorney Ben Smith along with special assistant district attorney Christine Stevens who jointly prosecuted the case. I also wish to thank the Warren County Sheriff’s Office, the New York State Office of the State Comptroller, and the New York State Department of Taxation and Finance for their hard work through the course of a lengthy investigation and trial.”

“State grant funding is meant specifically for the betterment of local communities,” New York State Commissioner of Taxation and Finance Michael Schmidt said. “When that money is instead used for someone’s personal gain, they must be held accountable. We cannot stand by while the public trust is so blatantly violated. I commend the efforts of all partners involved in this case.”

* The Lake George Watershed Coalition is a consortium of municipalities and organizations surrounding Lake George including Warren County, the towns of Queensbury and Bolton and the village of Lake George, and was created in 2001 to preserve the beauty and health of Lake George by coordinating state and federal grant funds.

 

Reporting on-the-job misbehavior

A computer "application" - #NotMe - provides employers with a tool that permits employees to make timely submission of complaints of alleged supervisor or co-worker misconduct to personnel officers, human resource teams, compliance officers or designated individuals. Click on https://www.not-me.com/organizations for information concerning this program.