Public personnel law e-books available for purchase 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 of the State of New York or a political subdivision of New York State in instances where the employee has been found guilty of misconduct or incompetence. For more information click HERE. 

Disability Benefits: payable to firefighters, police officers 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 New York State laws, rules and regulations, and selected court and administrative decisions. Click HERE for more information.

Freedom of Information Law (FOIL)

 

Matter of Digital Forensics Unit v Records Access Officer

2023 NY Slip Op 01476

Decided on March 21, 2023

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: March 21, 2023
Before: Manzanet-Daniels, J.P., Singh, Kennedy, Shulman, JJ.

Index No. 100836/19 Appeal No. 17552 Case No. 2021-03350

In the Matter of Digital Forensics Unit, Legal Aid Society, Petitioner-Appellant,

v

Records Access Officer, New York City Police Department, Respondent-Respondent.

Twyla Carter, The Legal Aid Society, New York (Benjamin S. Burger of counsel), for appellant.

Sylvia O. Hinds-Radix, Corporation Counsel, New York (Julie Steiner of counsel), for respondent.

Judgment, Supreme Court, New York County (Carol R. Edmead, J.), entered August 26, 2021, denying the petition to compel respondent to disclose "all current NYPD rosters of officers (of all ranks) in all precincts" pursuant to the Freedom of Information Law (FOIL), granting respondent's cross motion to dismiss the petition, and dismissing this proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

The court committed no procedural error in granting respondent's cross motion to dismiss the petition. Initially, petitioner's contention that the court improperly considered the affidavit of respondent's Deputy Commissioner for Intelligence and Counterterrorism (the Miller affidavit) is unpreserved (see Islam v City of New York, 111 AD3d 493, 494 [1st Dept 2013]). In any event, respondent was entitled to submit the affidavit on its cross motion, and the court properly considered it in evaluating the merits of petitioner's claim (see Basis Yield Alpha Fund [Master] v Goldman Sachs Group, Inc., 115 AD3d 128, 134-135 [1st Dept 2014]; see also Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).

The parties' submissions established that respondent's denial of petitioner's FOIL request based on the public safety exemption was not "affected by an error of law" (CPLR 7803[3]; see also Public Officers Law § 87[2][f]; Matter of Barry v O'Neill, 185 AD3d 503, 505 [1st Dept 2020]). Respondent satisfied its burden of showing that the requested information fell "squarely" within the exemption (see Matter of New York Comm. for Occupational Safety & Health v Bloomberg, 72 AD3d 153, 158 [1st Dept 2010]), by making a "particularized showing" that publicly releasing the information would create "a possibility of endangerment" to the safety of the public (Matter of Empire Ctr. for Pub. Policy v New York City Off. of Payroll Admin., 187 AD3d 435, 435 [1st Dept 2020] [internal quotation marks omitted], lv denied 36 NY3d 906 [2021]; see also Matter of Bellamy v New York City Police Dept., 87 AD3d 874, 875 [1st Dept 2011], affd 20 NY3d 1028 [2013]). As articulated in respondent's determination denying petitioner's FOIL request, the disclosure of the rosters of all the NYPD precincts could permit individuals intent on causing harm to deduce which precincts have less resources and manpower, and tailor their conduct by targeting those areas. Further, the Miller affidavit described the potential harm to police officers as well as their families from the publication of their full names. Whether petitioner intends to publish the information on a publicly available website is irrelevant to the applicability of the exemption since "access to government records does not depend on the purpose for which the records are sought" (Matter of Gould v New York City Police Dept., 89 NY2d 267, 274 [1996]; see also Matter of Bellamy v New York City Police Dept., 59 AD3d 353, 355 [1st Dept 2009]). Further, although respondent has since separately published the full names and precinct locations of NYPD officers, the court properly considered the record that was before the records access officer in 2019.

The advisory opinion of the Committee on Open Government concluding that the denial of the FOIL request was "unsupportable" is not binding, especially given that it did not address respondent's expressed concern regarding the risk to public safety arising from the exposure of the availability of police resources and manpower in the different precincts (Matter of Buffalo News v Buffalo Enter. Dev. Corp., 84 NY2d 488, 493 [1994]; Matter of Thomas v New York City Dept. of Educ., 103 AD3d 495, 498 [1st Dept 2013]).

Respondent's disclosure of disciplinary information on its website in response to the repeal of Civil Rights Law § 50-a (see Uniformed Fire Officers Assn. v De Blasio, 846 Fed Appx 25, 29 [2d Cir 2021]) has no bearing on the propriety of the denial of petitioner's FOIL request, since respondent's creation of the online database occurred after the determination.

We have considered petitioner's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: March 21, 2023

 

Challenging the disqualification of a candidate for failure to meet the psychological requirements for appointment to the position

A candidate for appointment to a position of police officer [Plaintiff] was disqualified by the responsible civil service commission [Commission] for failure to meet the psychological requirements of the position. Plaintiff appealed the Commission's determination. Supreme Court denied Plaintiff's appeal, dismissed the proceeding and denied Plaintiff's motion for leave to reargue the petition. Plaintiff appealed Supreme Court's ruling.

The Plaintiff had passed the written portion of the County Police Officer Examination and his name was placed on eligible list. Plaintiff was subsequently given a conditional offer of employment, subject to his successful completion of physical and psychological screenings, among other things. Following a complete psychological screening, the Commission's staff psychiatrist concluded that Plaintiff was not capable of performing the duties of a police officer and the Commission disqualified Plaintiff "for failure to meet the psychological requirements of the position."

Plaintiff appealed the Commission's determination, submitting an independent evaluation by a psychiatrist, who disagreed in detail with the conclusions of the prior evaluators, and numerous letters of recommendation. The Commission referred Plaintiff to another staff psychiatrist for an additional interview and review of his file. This second staff psychiatrist also concluded that Plaintiff was not capable of performing the duties of a police officer. The Commission affirmed its original determination disqualifying Plaintiff for appointment as a police officer and denied Plaintiff's request to administratively reargue his appeal the Commission's determination.*

Supreme Court denied the Plaintiff's petition challenging the Commission's decision and dismissed the proceeding. Petitioner appealed the Supreme Court's ruling.

The Appellate Division, noting that reinstating Plaintiff's name to the subject eligible list is no longer possible as the eligible list had expired. The court then explained that an "appointment of an individual from a constitutionally valid expired list violates Article V, §6 of the NY Constitution" citing Matter of City of New York v New York State Div. of Human Rights, 93 NY2d 768.**

Nevertheless, in light of the conditional offer of employment given to Plaintiff, and his request for back pay, the Appellate Division denied the Respondents' request that the Appellate Division dismiss Plaintiff's appeal as academic. It then held Supreme Court had properly denied the petition and dismissed the proceeding, explaining "An appointing authority has wide discretion in determining the fitness of candidates, and this discretion is particularly broad in the hiring of law enforcement officers, to whom high standards may be applied," citing Matter of Coyle v Kampe, 185 AD3d 1028, and other decisions.

In the words of the Appellate Division, "So long as the administrative determination is not irrational or arbitrary and capricious, this Court will not disturb it". Further, opined the court, in determining whether a candidate is medically qualified to serve as a police officer, "the appointing agency is 'entitled to rely upon the findings of its own medical personnel, even if those findings are contrary to those of professionals retained by the candidate'" and it is not for the courts to choose between the diverse professional opinions."

In response to Plaintiff's request for copies of the underlying psychological reports for review and challenge by his own expert, the Appellate Division ruled that Plaintiff was not entitled to such documents and opined that Supreme Court had been provided with sufficient material to be able to determine that the Commission's determination was neither irrational nor arbitrary and capricious.

The Appellate Division, in affirming Supreme Court's ruling, and awarded the Respondents one bill of costs.

*  The Appellate Division noted "no appeal lies from an order denying reargument"

** See, also, Cash v Bates, 301 NY 258, in which the Court of Appeals held that an appointment to a civil service title from an expired civil service eligible list is a "legal impossibility."

Click HERE to access the text of the Appellate Division's decision.

 

Courts will not assume the role of overseers to conform an arbitration award to its sense of justice

In a proceeding pursuant to CPLR Article 75 in which the employer [Village] sought an order vacating an arbitration award, Village appealed Supreme Court's decision denying the Village's petition. The Appellate Division affirmed the Supreme Court's ruling.

Village employs court attendants to work in the Village's Justice Court. Work assignments for court attendants were historically determined through a seniority bidding process. The Village changed the process by which that work was assigned and began assigning shifts to court attendants without regard to seniority.

The employee organization [CSEA] representing the court attendants filed a grievance, alleging that the new process by which the Village determined work assignments for court attendants violated, among other things, the "Maintenance of Standards" provision of the relevant collective bargaining agreement [CBA]. The Maintenance of Standards clause of the relevant CBA provided "Any benefits heretofore enjoyed by an employee shall not be deemed to have been altered, modified or changed unless expressly so modified, altered or changed by this agreement."

Ultimately an arbitrator determined that the Village's new process for assigning work to court attendants violated the CBA's "Maintenance of Standards" provision. Village commenced the instant proceeding pursuant to CPLR Article 75 seeking a court order vacating the arbitration award, contending that the arbitration award was contrary to public policy.

Supreme Court denied the Village's petition and the Village appealed. Citing Matter of New York State Correctional Officers and Police Benevolent Assn. v State of New York, 94 NY2d 321, and other decisions. the Appellate Division affirm the lower court's ruling. The court explained "Collective bargaining agreements commonly provide for binding arbitration to settle contractual disputes between employees and management [, and] [i]n circumstances when the parties agree to submit their dispute to an arbitrator, courts generally play a limited role".

Further, said the Appellate Division, "An application to vacate an arbitration award may be granted only in narrow circumstances, such as where "an arbitrator . . . exceeded his [or her] power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made." Further, opined the court, an arbitrator "exceed[s] [his or her] power within the meaning of the CPLR only when [he or she] issue[s] an award that violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

Noting that a party seeking to overturn an arbitration award bears a heavy burden and must establish a ground for vacatur by clear and convincing evidence, the Appellate Division's decision pointed out that "Courts are bound by an arbitrator's factual findings, interpretation of the contract and judgment concerning remedies" and courts may not examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because a court believes its interpretation would be the better one.

Indeed, observed the Appellate Division, even where an arbitrator "makes errors of law or fact, courts will not assume the role of overseers to conform the award to their sense of justice", citing Matter of New York State Correctional Officers and Police Benevolent Assn. v State of New York, 94 NY2d at 326; and Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d at 479-480).

Concluding that the Supreme Court properly determined that the arbitrator's award was neither irrational nor violated a strong public policy, and that the arbitrator did not exceed a specifically enumerated limitation on his authority, the Appellate Division ruled that  Supreme Court properly denied the Village's petition to vacate the arbitration award.

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

DiNapoli releases fiscal stress scores

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

On March 22, 2023, State Comptroller Thomas P. DiNapoli announced that five villages were designated in fiscal stress under his Fiscal Stress Monitoring System (FSMS). DiNapoli evaluated all non-calendar year local governments and designated one village in “moderate fiscal stress” and four villages as “susceptible to fiscal stress.”

The village of Coxsackie (Greene County) was classified in “moderate fiscal stress.” The four villages classified as “susceptible to fiscal stress” are: Chateaugay (Franklin County), Canajoharie (Montgomery County), Huntington Bay (Suffolk County), and Mohawk (Herkimer County). No municipalities were designated in the highest category of “significant fiscal stress” in this round of scoring.

“Federal pandemic relief packages provided significant aid to local governments over the past three years, helping to balance their books during unprecedented circumstances,” DiNapoli said. “Now that funding is winding down and local officials will have to closely monitor their financial conditions. I encourage local governments to use our self-assessment tool to help them budget and avoid potential pitfalls in the coming years.”

The latest round of fiscal scores evaluated local governments with fiscal years ending between Feb. 28 and July 31. DiNapoli’s office evaluated the fiscal health of 519 villages, which predominantly have a fiscal year ending on May 31, based on self-reported data for 2022. The scores also cover the 17 cities with non-calendar fiscal years, including the “Big 4” cities of Buffalo, Rochester, Syracuse and Yonkers, each of which have fiscal years ending on June 30.

In total, 95 local governments, including the cities of Lackawanna, Olean, Rensselaer, Salamanca and Syracuse, did not file their data in time to receive a FSMS score, a date that is at least three months past their statutory filing deadline. This is a significant increase of 30% from last year. Salamanca and Rensselaer have not filed their data in time to receive fiscal stress scores since 2015 and 2013 respectively.

DiNapoli’s office continues to make sure local governments are aware of both the statutory filing deadlines, as well as the critical filing dates for receiving a fiscal stress score.

“It is important that local officials file timely financial reports disclosing to the public the information they are using to make financial decisions, but we are seeing an increasing number that do not,” DiNapoli said. “When a local government fails to keep this legally required financial information current and accessible, it undermines confidence and accountability in a local government’s finances and forgoes an opportunity to learn of future risks from our early warning system.”

DiNapoli noted the city of Amsterdam in Montgomery County was classified in “moderate fiscal stress” last year and is now classified as “no designation,” while the city of Long Beach in Nassau County was classified in “susceptible to fiscal stress” last year and is now classified as “no designation.”

The system, which has been in place since 2012, assesses levels of fiscal stress in local governments using financial indicators including year-end fund balance, cash position, short-term cash-flow borrowing and patterns of operating deficits. It generates overall fiscal stress scores, which ultimately drive final classifications. The system also analyzes separate environmental indicators to help provide insight into the health of local economies and other challenges that might affect a local government’s or school district’s finances. This information includes population trends, poverty and unemployment.

DiNapoli’s office has a self-assessment tool that allows local officials to calculate fiscal stress scores based on current and future financial assumptions. Officials can use this tool to assist in budget planning, which is especially helpful during periods of revenue and expenditure fluctuations.

In January, DiNapoli released fiscal stress scores for school districts. In September, his office will release scores for municipalities with a calendar-year fiscal year, which includes all counties, towns, most cities and a few villages.

List of Villages and Cities in Fiscal Stress Municipalities in Fiscal Stress

List of Villages and Cities that Failed to File Financial Information Municipalities that Failed to File or Inconclusive List

Complete List of Fiscal Stress Scores Data Files

FSMS Search Tool Tool