Disclosing complaints or allegations of a public officers' misconduct sought pursuant to the New York State Freedom of Information Law

In the Matter of New York Civil Liberties Union [CLU] v New York City Department of Correction [DOC], 2023 NY Slip Op 00930, the Appellate Division noted that the personal privacy exemption in Public Officers Law §87(2)* allows state agencies to protect sensitive matters "which are of little or no public interest, and which may include unsubstantiated allegations," citing Matter of New York Times Co. v City of New York Off. of the Mayor, 194 AD3d 157.

However, cautioned the court, "Public Officers Law §87(2) does not create a categorical or blanket exemption from disclosure for unsubstantiated complaints or allegations of uniformed officers' misconduct ... Documents concerning unsubstantiated complaints or allegations should be disclosed to the extent that they can be redacted to prevent an unwarranted invasion of personal privacy, including the removal of identifying details [citations omitted]."

In this instance the Appellate Division held that DOC did not establish that identifying details in the records or data requested by CLU could not be redacted to prevent an unwarranted invasion of privacy. 

Accordingly, the Appellate Division held that Supreme Court properly required DOC to disclose the requested records, subject to redactions with specific justification under Public Officers Law §87(2). Supreme Court, said the Appellate Division, also properly required that DOC sufficiently document its justification for redactions to facilitate potential in camera** review by Supreme Court.

Addressing CLU's request for an award of attorney's fees and costs, the Appellate Division opined that "as this proceeding at this stage concerns a novel interpretation of legislation that both repealed a statute and enacted new provisions to a longstanding statutory scheme", it cannot be said that DOC had no reasonable basis for denying access to the records at issue.

* See Public Officers Law §89(2), concerning personal privacy exceptions authorized by law. 

** Judicial review of a matter in the privacy of the judge's chambers."

Click HERE to access the Appellate Division's decision posted on the Internet.

See, also, Matter of Puig v New York State Police, https://www.nycourts.gov/reporter/3dseries/2023/2023_00258.htm

School board policy requiring speakers at board meetings to disclose their name and address challenged

A school board's policy requires speakers at board meetings to provide their names and addresses.  Petitioner in this Education Law §310 appeal to the Commissioner of Education sought to avoid giving her last name or street address in order to speak at a school board meeting. Petitioner asked the Commissioner of Education to removal from the school board president for enforcing this policy, which Petitioner alleged violated the board’s Ethics Code.  Petitioner also contended that the Commissioner should invalidate the board’s policy that speakers be required to give their name and address before speaking because it allegedly violated New York State's Open Meetings Law.

The Commissioner dismissed Petitioner's application on number of procedural grounds, including lack of jurisdiction, noting Public Officers Law §107 vests consideration of alleged violations of the Open Meetings Law in the Supreme Court of the State of New York. 

The Commissioner's decision cites Comm on Open Govt OML-AO-5607 (2019) and Comm on Open Govt OML-AO-2717 (1997), advisory opinions issued by Committee staff*, which posit that while the public entity may request an individual to provide his name and address, "a person may not be required [sic] to do so in order to attend, speak or otherwise participate relative to a meeting of a public body".

As the school board indicated that after receipt of the instant appeal it “voted against suspending its policy to conform to ... these opinions" issued by Committee staff, the Commissioner said that she would transmit her decision in this matter "to the Committee on Open Government for appropriate action."

* The Committee's staff prepares written advisory opinions in response to particular sets of facts and circumstances.

Click HERE to access the Commissioner's decision posted on the Internet.

Self-insured employer's claim for reimbursement for workers' compensation payments it made to a firefighter for a work-related injury rejected

In this appeal the City of Newburgh Fire Department [Department] challenged the Workers' Compensation Board's [WCB] decision that the Department, a self-insured workers' compensation employer, was not entitled to reimbursement or credit for certain payments it made to a Claimant [Firefighter].

Firefighter suffered a disabling work-related injury in the course of his performing his firefighting duties and established a claim for workers' compensation benefits. Ultimately classified as permanently partially disabled, Firefighter was paid his full salary during his period of disability by the Department. The Department filed requests for reimbursement of those wages against any award of workers' compensation benefits.*

In April 2016 Firefighter's application for performance of duty disability retirement pursuant to Retirement and Social Security Law §363-c was approved and provided for a 50% pension. Although full wage payment to Firefighter pursuant to General Municipal Law §207-a(1) were discontinued upon Firefighter's disability retirement, the Department commenced paying Firefighter the difference between the amount received from his pension and the amount of his regular wages under color of General Municipal Law §207-a[2].

In 2019, Firefighter submitted a request for additional benefits, claiming that his "permanency classification" entitled him to retroactive workers' compensation awards from April 2016 and continuing, which payments had been discontinued. The Department sought credit against any workers' compensation awards based upon its supplemental pension payments pursuant to General Municipal Law §207-a(2).

Ultimately Firefighter was awarded benefits "retroactive to April 30, 2016 and continuing". However, the Workers' Compensation Law Judge [WCLJ] found that the Department was not entitled to reimbursement against the workers' compensation awards for pension payments made to Firefighter under General Municipal Law §207-a(2).

The Department appealed but ultimately the WCB affirmed the decision of the WCLJ, noting that "any determination as to the setoff/reimbursement of the workers' compensation payments against the pension supplement the [Department] pays pursuant to General Municipal Law §207-a(4-a) was outside its jurisdiction." The Department's subsequent application "for reconsideration and/or full Board review was denied" and it appealed this ruling by the WCB.

The Appellate Division said was "unpersuaded by the [Department's] contention that because [Firefighter] is receiving a performance of duty disability pension, as opposed to an accidental disability retirement pension, the matter is distinguishable from Matter of Harzinski v Village of Endicott (126 AD2d 56 [3d Dept 1987]) and, as such, [the Department] is entitled — pursuant to Workers' Compensation Law §25(4)(a) or §30(2) — to reimbursement of its General Municipal Law §207-a(2) payments against [Firefighter's] workers' compensation awards."

Workers' Compensation Law §25(4)(a), said the court, provides that in the event an "employer has made advance payments of compensation, or has made payments to an employee in like manner as wages during any period of disability," the employer "will be entitled to reimbursement out of any unpaid workers' compensation award (emphasis provided by the court in its decision)" and Workers' Compensation Law §30(2) provides for the reimbursement of "any salary or wages paid" to a firefighter pursuant to General Municipal Law §207-a against any workers' compensation award.

Explaining that "because the supplemental retirement benefits paid by the [Department] were not wages, the workers' compensation awards were not reimbursable to the [Department] by way of Workers' Compensation Law §25(4)(a) or §30(2)," the Appellate Division sustained the WCB's determination.

To the extent that the Department argued that limiting "any offset or reimbursement to future General Municipal Law §207-a(2) supplemental payments" as set forth in General Municipal Law §207-a(4-a) is inappropriate and thwarts the statutory scheme,** the court said the Board made no determination with regard to the applicability of that statute, noting that its determination in that regard would be inappropriate. In the words of the court: "The employer does not challenge this finding on appeal and, as such, it is not properly before us."

* Any award of workers' compensation to Firefighter was to be designated reimbursable to the employer.

** General Municipal Law §207-a(4-a) provides that "[a]ny benefit payable pursuant to [General Municipal Law §207-a(2)] to a person who is granted retirement for disability incurred in performance of duty pursuant to [Retirement and Social Security Law §363-c] shall be reduced by the amount of the benefits that are finally determined payable under the workers' compensation law by reason of accidental disability."

 

Click HERE for access to the decision of the Appellate Division posted on the Internet.

 

New York Public Personnel Law E-books available from BookLocker

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more about this electronic handbook, click HERE. 

A Reasonable Disciplinary Penalty Under the Circumstances- The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. For more information click HERE. 

Disability Benefits for fire, police and other public sector personnel - an e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information about this e-book click HERE. 

The Layoff, Preferred List and Reinstatement Manual -This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions. Click HERE for more information.

Advisory Memorandum 23-01, Paid Parental Leave, issued by the New York State Department of Civil Service

The text of Advisory Memorandum 23-01 will be found at:
https://www.cs.ny.gov/ssd/Manuals/SPMM/2800AutoPositPersnl/Advisory 

Advisory Memorandum 23-01, in a PDF format is available at:
https://www.cs.ny.gov/ssd/pdf/AM23-01.pdf.

To view previous Advisory Memoranda issued by the Department of Civil Service, visit: https://www.cs.ny.gov/ssd/Manuals/SPMM/