Documents that are prepared within the meaning of the attorney-client privilege are exempt from disclosure pursuant to New York State's Freedom of Information Law

The Court of Appeals [Court] said that in this appeal it "must determine whether the Department of Corrections and Community Supervision [DOCCS] properly withheld 11 documents* prepared by counsel [Counsel] for the Board of Parole [Board] as privileged communications exempt from Freedom of Information Law [FOIL] disclosure.

The Court indicated that Counsel had prepared the documents to train and advise members of the Board on how to comply with their legal duties and obligations and reflected Counsel's legal analysis of statutory, regulatory and decisional law. The Court concluded that the 11 documents at issue "constitute attorney-client communications that were prepared 'for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship,' specifically, to provide guidance on matters relevant to the Commissioners' exercise of their discretionary authority."

Accordingly, opined the Court, "DOCCS properly invoked the statutory FOIL exemption for privileged matters", citing Public Officers Law §87[2][a] and CPLR §4503[a].

Following an in-camera review Supreme Court had earlier affirmed DOCCS' denial of disclosure of the 11 documents that were withheld and dismissed the petition.* 

The Appellate Division affirmed the Supreme Court's ruling in a 3-2 decision, concluding that the documents were protected by the attorney-client privilege**. 

The Court affirmed the lower courts' rulings.

Citing Public Officers Law §87[2][a] and Matter of Town of Waterford v New York State Dept. of Envtl. Conservation, 18 NY3d 652, the Court said that under New York State's FOIL, "documents are to be disclosed unless they fall within an enumerated statutory exemption" and, in the words of the Court, "the attorney-client privilege exemption also reflects the state's policy to protect attorney-client communications to foster candid discussion between lawyer and client*** and FOIL is "liberally construed and its exemptions narrowly interpreted" to achieve its legislative purpose of maximizing public access to government records." In addition, the Court, citing Matter of Town of Waterford, 18 NY3d at 657, indicated that the Government "bears the burden of establishing an exemption."

In sum, the Court held "DOCCS properly withheld the 11 documents relevant in this action as privileged communications because they are exempted from FOIL disclosure pursuant to §87(2)(a)" and "the order of the Appellate Division should be affirmed, with costs."

* During the pendency of this action, the Court of Appeals noted that the parties entered a settlement pursuant to which DOCCS disclosed approximately 400 additional documents, leaving undisclosed the 11 documents at issue in this appeal.

** The Court's decision notes "In order for the privilege to apply, the communication from attorney to client must be made 'for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship'" and "[t]he communication itself must be primarily or predominantly of a legal character" (See Spectrum Sys. Intl. Corp. v Chem Bank, 78 NY2d 371, 377-378, quoting Rossi, 73 NY2d at 593-594).

*** Other examples of such statutory exemptions: Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality.

Click HERE to access the decision of the Court of Appeals posted on the Internet.

 

Workers’ Comp 101 with the New York State Advocate for Injured Workers: A Webinar to be held on December 20, 2023

The Workers’ Compensation Board (Board) continues its webinar series for workers tomorrow Wednesday, December 20, 2023, 11:00 A.M. - 12:00 P.M.

During this session, the Board’s Advocate for Injured Workers will cover the basics of the workers’ compensation system, including employees’ rights if they become injured or ill on the job. The one-hour presentation will also cover:

● Employees’ benefits under workers’ compensation

● How to file a claim

● How to get help with your claim if needed

● Tips and best practices for injured workers

● Information to be aware of regarding COVID-19 claims

 The session is free and there will be time at the end for questions.

Register here.

 

For additional information:

1. Visit the Advocate for Injured Workers section of the Board’s website for additional resources.

2. You may also call the Advocate for Injured Workers at (877) 632-4996 or email advocateforinjuredworkers@wcb.ny.gov.

 

 

The absence of an expletive in the video recording of a school board meeting found to trump a community member’s unsworn assertion to the contrary

Petitioner, claiming a member of the school board used an expletive during a school board meeting ask the Commissioner to remove the member from the board for such alleged misconduct.

The Commissioner of Education explained that the Commissioner of Education "may remove a school officer or member of a board of education from office when it is proven to the satisfaction of the Commissioner that the officer or board member has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule, or regulation of the Board of Regents or the Commissioner"*.  

Noting that in an appeal to the Commissioner the petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief, in the instant appeal, the Commissioner found that the Petitioner failed to prove her allegation that a member of the school board had referred to a community member using an expletive during a board meeting.

The Commissioner found that although Petitioner’s version of event was corroborated by an email from a community member, the recording of the meeting itself did not reveal any such expletive was uttered.** 

Weighing the parties’ submissions on this issue, the Commissioner dismissed the appeal. The Commissioner found the video recording "to be more probative than the community member’s unsworn assertions" and ruled that the Petitioner had failed to meet her burden of proof".

 * See Education Law §306[1] and Application of Kolbmann, 48 Ed Dept Rep 370.

** Petitioner admitted that the comment “cannot [be] hear[d] on the posted video” and failed to submit a reply or any other evidence to corroborate her claim.

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

 

New York State employees, including PEF and CSEA Members, to receive payments for overtime worked during the COVID pandemic

On December 18, 2023, New York State Governor Kathy Hochul, Public Employees Federation President Wayne Spence, and Civil Service Employees Association President Mary Sullivan announced an agreement to award nearly $3 million in backpay to more than 2,100 New York State employees of the State as the employer  who worked overtime during the COVID-19 pandemic. 

More than 1,700 PEF members and more than 400 members of CSEA and other unions, as well as unrepresented employees, will receive payments for work completed beyond traditional work hours at the height of the pandemic.

“This agreement honors the tremendous contributions of New York State workers who went above and beyond to protect, inform, and serve their fellow New Yorkers at the height of the pandemic,” Governor Hochul said. “As we enter the holiday season, we’re putting hard-earned overtime pay back in the hands of the dedicated civil servants who keep our state running and I thank PEF and CSEA for their partnership on this agreement to give state employees the compensation they deserve.”

PEF President Wayne Spence said, “PEF is committed to securing overtime payment for all our members who stepped up to serve New Yorkers during the pandemic. This was money they earned with their sacrifice, and we thank Governor Hochul for making sure public employees are fairly compensated. These hours were worked at great personal risk and helped keep New York operating during an unprecedented state of emergency.”

CSEA President Mary E. Sullivan said, “CSEA is pleased to say we were yet again able to work with Governor Hochul in an amicable way to resolve these pay issues on behalf of our members. We look forward to our continued collaboration with the Governor and thank her again for her support and willingness to work with us on this and many other issues we face.”

Under the agreement, 1,727 PEF members and 428 members of CSEA and other unions, as well as unrepresented employees, will receive payments averaging $1,375. Employees paid via the Administration Payroll will receive payments on December 20. Employees paid via the Institution Payroll will receive payments on December 28.

The agreement builds on Governor Hochul’s commitment to supporting New York State employees. As part of her 2023 State of the State address, Governor Hochul launched a nation-leading initiative to offer 12 weeks of paid parental leave to more than 150,000 eligible New York State employees. 

The Governor also secured commitments in the fiscal year 2024 budget to modernize New York’s public workforce by waiving civil service exam fees through 2025; offering civil service exams on a more frequent basis; establishing state-operated testing centers for civil service exams; and expanding the 55-B hiring program to expand job opportunities for individuals with disabilities. 

In addition, the Governor secured an historic increase to New York’s minimum wage that would raise the minimum wage through 2027 and then index it to inflation.

 

 

Terminating a probationary teacher prior to the end of the educator's probationary period

Supreme Court denied a CPLR Article 78 petition submitted by a former teacher [Plaintiff] seeking a court order annulling The Department of Education of the City of New York and The Board of Education of the City School District of the City of New York's [collectively DOE] decision to terminate Plaintiff's probationary employment, and dismissed the proceeding. The Appellate Division unanimously affirmed the Supreme Court's ruling, without costs.*

The Appellate Division opined that Supreme Court had properly denied Plaintiff's petition, "as DOE's decision to terminate [Plaintiff's] probationary employment was not arbitrary and capricious, an abuse of discretion or contrary to law. Citing Matter of DeVito v Department of Educ. of the City of N.Y., 112 AD3d 421, the court explained "DOE was entitled to discontinue [Plaintiff's] service as a probationary teacher 'at any time and for any reason' unless the decision was "for a constitutionally impermissible purpose, violative of a statute, or done in bad faith."**

Noting there was documentary evidence of Plaintiff's unsatisfactory performance while a probationary teacher, the Appellate Division viewed this evidence to have "sufficiently rebutted any allegations of bad faith" and the fact that Plaintiff "received two effective ratings ... underscore that the administrators at his school treated him fairly."

Addressing Plaintiff's "motion to renew," the Appellate Division held that Supreme Court properly denied the motion "as [Plaintiff's] affidavit failed to present any new evidence that could not have been presented in his petition or that would have rendered a different result".

* Plaintiff's subsequent efforts to renew his petition were likewise unsuccessful. 

** See, also, York v McGuire, 63 NY2d 760.

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