The Freedom of Information Law and Collective Bargaining

The basic concept underlying FOIL is that all government documents and records, other than those having access specifically limited by statute,* are available to the public. The custodian of the records or documents requested may elect, but is not required, to withhold those items that otherwise within the ambit of the several exceptions to disclosure permitted by FOIL. In other words, there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded. 

In Uniformed Fire Officers Association et al. v. de Blasio et al., Nos. 20-2789-cv, 20-3177-cv,  the United States Circuit Court of Appeals, Second Circuit, addressed a number of issues arising after the repeal of §50-a of New York State's Civil Rights Law. §50-a had for decades shielded the disciplinary records of sworn law enforcement personnel from public disclosure.

In addition, the Circuit Court noted the following:

1. Citing Matter of M. Farbman & Sons v. N.Y.C. Health and Hosps. Corp., 62 N.Y.2d 75, the Circuit Court noted that with respect to records that must be disclosed under FOIL, a public employer cannot bargain away its FOIL disclosure obligations; and

2. Citing Trump v. Deutsche Bank AG, 943 F.3d 10 627, vacated and remanded on other grounds, 140 S. Ct. 2019, the Circuit Court commented that a federal district court may grant a preliminary injunction where the moving party "demonstrates irreparable harm and meets either of two standards: (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation, and a balance of hardships tipping decidedly in the movant’s favor”. 

* The release of some public records pursuant to a FOIL request may be limited by statute such as Education Law §1127 - Confidentiality of records and §33.13 of the Mental Hygiene Law - Confidentiality of clinical records. 

Click HERE  to access the full text of the decision by the Circuit Court, which opinion, in particular, contains the two observations set out below.

  

 

An employer may rely on its medical expert's opinion if there are conflicting medical opinions as to an applicant's ability to perform the duties of the position

Supreme Court granted the New York City Fire Department's [NYFD] motion to dismiss Plaintiff's CPLR Article 78 petition challenging NYFD's decision disqualifying him for appointment the position of firefighter for medical reasons. Plaintiff's appeal from the Supreme Court's decision was sustained by the Appellate Division, which found that NYFD's decision was not arbitrary and capricious, or without a rational basis.

Citing Matter of Rivers v New York City Dept. of Sanitation, 49 AD3d 436, the court said that the record indicated that Plaintiff "had profound sensorineural hearing loss in his left ear," which, under the standards promulgated by the National Fire Protection Association (NFPA), was grounds to disqualify him from appointment to the position of firefighter

NYFD's physician had considered Plaintiff's medical submissions and letters from his former colleagues, but ultimately determined that his unequal hearing would interfere with his ability to perform search and rescue operations safely, as well as tasks requiring an ability to localize faint sounds in high-noise environments.

NYFD's physician also opined that Plaintiff's hearing loss in his left ear was progressive and would further impair his ability to serve as a firefighter. 

Although Plaintiff's physicians had reached a different conclusion, the Appellate Division said that these different conclusions on the part of Plaintiff's physicians  "does not render [NYFD's] medical examiner's conclusions arbitrary and capricious."

Click HERE to access the Appellate Division's decision.

 

Terminating the services of an employee during a probationary period

In York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees before the completion of their required probationary period 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.”

Such may not the case where the individual is serving a disciplinary probationary period imposed as part of the "settlement of disciplinary charges" filed against the employee by the appointing authority.

Supreme Court had granted Plaintiff's CPLR Article 78 petition seeking [1] to annul a determination by the appointing authority [Employer] terminating Plaintiff from his position and [2] an order reinstating him to his former position with back pay. The Employer appealed the Supreme Court's ruling and the Appellate Division unanimously reversed the lower court's decision "on the law".

Plaintiff had contended that Military Law §243.9* controlled with respect his status as a probationary employee serving a "disciplinary probationary period" in this instance. The Appellate Division disagreed, holding that Plaintiff was not entitled to receive credit towards his "dismissal probationary period" for the time he was absent on military duty pursuant to §243.9 of the Military Law because "the statute is clear on its face that it applies only to probationary periods related to 'any position' to which [an individual] may ... be appointed or promoted."

Contrary to Plaintiff's argument, the Appellate Division opined that §243.9 does not, by its plain terms, apply to the dismissal of an individual serving a "disciplinary probationary period" imposed as part of a negotiated settlement agreement with an employer to resolve disciplinary charges filed against the individual. Further, said the court, "[i]f the legislature had intended the statute to apply more broadly, it would have so provided."

In addition, the Appellate Division's decision notes that "[b]ecause [Plaintiff] remained on dismissal probation at the time he was terminated, a hearing was not required."

Typically an individual serving a disciplinary probationary period may be summarily terminated from employment in the event a term or condition of the disciplinary probation is violated as demonstrated by the decision in Ramos v Coombe, 237 AD2d 713, leave to appeal dismissed 89 NY2d 981. 

In Ramos the Appellate Division held that an employee serving a disciplinary probationary period may be terminated without a hearing for violating the terms of the disciplinary probation.

In contrast, in Taylor v Cass, 122 AD2d 885, an employee won reinstatement with full retroactive salary and contract benefits after the court determined that the employee had been improperly dismissed while serving a "disciplinary probation."

The terms of the employee's probation provided that he could be terminated without any hearing if, in the opinion of his superior, his job performance was “adversely affected” by his intoxication on the job during the next six months. The employee was subsequently terminated without a hearing for “failing to give a fair day’s work” and for “sleeping during his scheduled working hours.” 

The Appellate Division concluded that the employee's dismissal was improper because the employee had not been  terminated for the sole reason specified in the settlement of the disciplinary action: intoxication on the job.

* §243.9 of the Military Law, probationary service, provides as follows: If a public employee or other person enters military duty before the expiration of the probationary period in any position to which he may have theretofore been appointed, or to which he may thereafter be appointed or promoted pursuant to subdivision six of this section, the time he is absent on military duty shall be credited as satisfactory service during such probationary period.  

Click HEREto access the decision of the Appellate Division in the instant case.

 

Municipal audits issued during the week ending February 26, 2021

New York State Comptroller Thomas P. DiNapoli announced the following municipal audits were issued during the week ending February 26, 2021.

Click on the text highlighted in color to access the complete audit report.

MUNICIPAL AUDITS

Danby Fire District – Claims Audit (Tomkins County)The board did not adequately audit claims. They authorized some unallowable claims to be paid prior to the audit. The district made 14 disbursements totaling more than $9,200 that should not have been paid prior to board approval. The district did not follow its credit card usage policy requiring documentation for four credit card purchases totaling almost $1,000.

 

Delhi Joint Fire District – Cash Receipts and Disbursements (Delaware County) The board ensured that $746,000 in cash receipts were properly deposited, recorded and disbursed. However, the board did not adequately audit claims and a cash receipts log was not maintained. The treasurer’s records were not reconciled to ensure that all receipts were deposited. In addition, $4,700 in fees were waived without evidence of board approval.

 

Sea Breeze Fire District – Board Oversight (Monroe County) The board did not provide adequate oversight of the district’s financial operations, nor comply with mandatory training requirements. The board also did not actively manage district assets and ensure the treasurer maintained basic accounting records including adequate bank and debt obligation records. The board failed to comply with legal mandates to perform an annual audit, file financial reports or audit and approve claims. As a result, the board could not effectively monitor the district’s operations and financial condition.

 

Town of Worth – Audit Follow-Up Letter (Jefferson County)Auditors conducted a follow up review of the town’s progress in implementing recommendations from a prior audit on the town’s financial operations. Auditors found little progress had been made. Of the nine audit recommendations, two recommendations were partially implemented and seven recommendations were not implemented.

 

Boosting economic development in a post-pandemic economy

Government Technology, Oracle, and leaders from the city of Vallejo, California, recently hosted a webinar titled How the City of Vallejo Boosted Economic Development in a Post-Pandemic Economy.*

The webinar focused on how the city recently adopted a new system that enables it to collect fees and manage planning entitlement, building permits and code enforcement processes more efficiently. Residents of the city can now conduct business with the city electronically, which has reduced call volumes and processing backlogs and improved the city’s ability to collect vital fees and accelerate critical planning and development processes.

Government Technology's Registration Coordinator Erica Lindley [elindley@govtech.com] invites readers to listen to the free webinar recording here.

* This information is posted pro bono.