Gender and ethnicity information of candidates failing civil service examinations held exempt from disclosure pursuant to New York State's Freedom of Information Law

The New York State Department of Civil Service [DCS] denied a Freedom of Information request submitted by the New York State Public Employees Federation, AFL-CIO [PEF] seeking the names of candidates for 12 specific civil service examinations "by ethnicity and gender," of all approved, disapproved, failed, and passed applicants for such examinations.

Rejecting PEF's request, the DCS's records access officer advised PEF that records for disapproved and failed candidates were withheld pursuant to Public Officers Law §87(2)(b) as disclosure would constitute an unwarranted invasion of personal privacy and, further, information with respect to failed candidates on a civil service examination was barred by 4 NYCRR 71.3.

PEF filed an administrative appeal, arguing that the information requested was "solely summary data regarding the applicant pool as a whole, rather than personal information," and, therefore, disclosure would not constitute an unwarranted invasion of privacy. DCS's FOIL appeals officer disagreed, and issued a final determination holding that the denial of the requested records was proper. The appeals officer reasoned that "by combining these sources of readily available information, it would be simple to compare a list of employees in the relevant promotion field job titles with the names on the eligible lists," which could lead to revealing the identities of "failed candidates". PEF then initiated a CPLR Article 78 action challenging the DSC's appeals officer's decision.

Supreme Court dismissed PEF's Article 78 petition, finding that considering the information PEF already had access to, were it provided the gender and ethnicity information of individuals who failed certain examinations, PEF would be able to "greatly narrow" and ultimately identify such candidates in contravention of 4 NYCRR 71.3.

In response to PEF's appealing the Supreme Court's ruling, the Appellate Division affirmed the lower court's decision.

Citing Matter of Broach & Stulberg, LLP v New York State Dept. of Labor, 195 AD3d 1133,, lv denied, 37 NY3d 914, the Appellate Division explained that FOIL requires that an agency, "in accordance with its published rules, make available for public inspection and copying all records, except those records or portions thereof that" are statutorily exempt from disclosure,* which include materials that, "if disclosed would constitute an unwarranted invasion of personal privacy" and thus allows an agency to withhold "records otherwise available ... to prevent unwarranted invasions of personal privacy." In the words of the court, "[a]n unwarranted invasion of personal privacy has been characterized as that which would be offensive and objectionable to a reasonable person of ordinary sensibilities".

DCS's rules** prohibit disclosing "any information" relating to candidates who failed certain examinations. In the words of the Appellate Division, "[i]ndeed, such disclosure would result in an unwarranted invasion of personal privacy, as a reasonable person of ordinary sensibilities would find the disclosure of their name tied to a failed civil service examination to be offensive and objectionable.

Noting that Supreme Court engaged in a sufficient evaluation, "balancing the privacy interests at stake against the public interest in disclosure of the information", the Appellate Division opined DCS met its burden of proving that  "gender and ethnicity information of candidates who failed certain civil service examinations was exempt from disclosure under FOIL, Supreme Court properly dismissed the [PEF] petition".

* See Public Officers Law §87[2]. N.B. The release of some public records may be limited by a specific statute such as Education Law §1127 - Confidentiality of records and §33.13 of the Mental Hygiene Law - Confidentiality of clinical records.

** See 4 NYCRR 71.3.

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

 

Former Town of Throop supervisor pleads guilty to stealing $11,000 from the town

A former Town of Throop Supervisor was arrested and pleaded guilty to stealing nearly $11,000 from the town over a two-year period.

On January 11, 2024, State Comptroller Thomas P. DiNapoli, Attorney General Letitia James and the New York State Police announced that former Town of Throop Supervisor William Tarby pleaded guilty to Grand Larceny in the Fourth Degree and Official Misconduct. As part of his plea agreement, Tarby will pay full restitution and cannot seek public office again.

“William Tarby exploited his position with the town to pay off personal debts and make home improvements,” DiNapoli said. “Thanks to the work of my office, his crimes were uncovered, and he is being held accountable. I’d like to thank Attorney General James and the New York State Police for their work in partnering with us to bring him to justice.”

“Elected officials who use their authority to enrich themselves are not only violating the law, they’re violating the basic trust that New Yorkers put in them,” James said. “William Tarby stole from the people he was elected to serve, and today we are making him pay. I want to thank Comptroller DiNapoli and our partners in law enforcement for their diligent work to hold Mr. Tarby accountable.”

“Mr. Tarby violated the public trust by disregarding the law and stealing from town funds,” New York State Police Acting Superintendent Dominick L. Chiumento said, “The prosecution of this individual sends a strong message that we will not tolerate such corruption when a public servant seeks to use their position to profit at the expense of taxpayers and the local community. I thank the State Comptroller’s Office and the Attorney General’s Office for their partnership in this investigation.”

Tarby, 58, was the town supervisor of Throop from 2004 through 2019. In 2020, DiNapoli’s office commenced an audit of the town which found financial irregularities. A subsequent investigation found that from January 2017 to December 2019, Tarby pocketed $11,000 from the town. 

Investigators determined Tarby made unauthorized cash withdrawals from town bank accounts, took cash back on checks made out to the town, and kept for himself cash paid to the town for scrap metal, fines and the sale of equipment, among other things.

As supervisor, Tarby controlled all aspects of the town’s finances and therefore was able to conceal his theft from the town board. He was the only town employee with access to certain of the town’s various accounts and was the only town employee who made cash withdrawals from those accounts.

Tarby pleaded guilty in Cayuga County Court before Judge Thomas G. Leone. Sentencing was scheduled for April 18.

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Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at https://www.osc.state.ny.us/investigations, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

Arbitration award held irrational in the absence of evidence justifying the award

The collective bargaining agreement [CBA] between the Union and the County, among other things, set forth procedures for resolving disputes relating to claims by the Union's members for benefits pursuant to General Municipal Law §207-c. 

Members of the Union [Claimants] allegedly sustained injuries or suffered illnesses in the course of performing their duties. Each Claimant sought medical treatment on the day of his injury or illness-causing occurrence. However, they did not seek further treatment and had no out-of-pocket expenses for the treatment received. Further, the Claimants missed no time from work, beyond the time spent seeking medical treatment on the day of his occurrence, and received his regular salary or wages for such time.

Claimants submitted claims to the County for benefits under General Municipal Law §207-c, which were denied on the grounds that each Claimant had incurred "[n]o los[t] time" and/or had not suffered a "disab[ility]," and had only received medical "[e]valuation" and/or "[t]reatment." 

The Union filed a grievance with the County contending that the County had improperly denied General Municipal Law §207-c benefits to its members simply because they "did not lose any work time." Ultimately the issue was submitted to arbitration, and the parties agreed that the arbitrator would decide the issue of whether "the County violate[d] the CBA as alleged in the grievance" and, if so found, the arbitrator would determine the remedy.

The arbitrator decided that the County's denial of General Municipal Law §207-c benefits to the Claimants on the ground that "they missed no work time after receiving medical treatment violate[d] ... the CBA. The arbitrator found that the statute provides two distinct benefits — payment of salary or wages during the period of a individual's disability and payment of medical treatment necessitated by the injury or illness — and concluded that the statute "does not require a correction officer to miss time from work in order to establish entitlement to the latter benefit". 

The arbitrator's award provided that Claimants "shall have their treatment and any work time they missed on the day of the illness or injury designated as [General Municipal Law] §207-c leave and benefits."

The County sought to vacate the arbitration award pursuant to CPLR Article 75 while the Union cross-petitioned pursuant to CPLR 7510 to confirm the arbitration award. The Supreme Court granted the Union's cross-petition and the County appealed, contended that:

1. The arbitration award violated public policy because it provided General Municipal Law §207-c benefits to claimants who were purportedly not entitled to such benefits; and

2. The arbitration award was irrational.

In the words of the Appellate Division, "Judicial review of arbitration awards is extremely limited", citing Matter of County of Nassau v Civil Serv. Empls. Assn., 150 AD3d 1230. Noting that "Courts are bound by an arbitrator's factual findings, interpretation of the contract[,] and judgment concerning remedies", the Appellate Division said a court cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one.

The Appellate Division held that "contrary to the County's contention" with respect to public policy, the "alleged error with the arbitrator's award is distinct from the limited, narrow circumstances in which the public policy exception applies" citing Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, AFL-CIO, 99 NY2d 1.

The court, however, held that "the County correctly contends that the arbitration award was irrational", explaining that an arbitration award "is irrational only where there is no proof whatever to justify the award".

In this instance the Claimants did not seek payment of salary or wages pursuant to the statute as they were each paid their regular salary or wages for the time spent visiting a medical provider on the date of the occurrence and missed no time thereafter. Nor did Claimants seek payment of, or reimbursement for, the cost of the medical treatment they each received on the day of their respective occurrences, conceding that they did not sustain any out-of-pocket medical expenses.

Accordingly, the Appellate Division concluded that the arbitrator's decision to award the Claimants benefits under color of General Municipal Law §207-c was irrational, considering the fact that there was no proof that payment of wages or payment for any medical benefits by the Claimants were required.

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

 

Claiming "absolute privilege" as a defense in a lawsuit alleging school officials had defamed the plaintiff during a school board activity

Plaintiff sued the School District, the Board of Education and certain officers of the School District [collectively "Defendants"] for defamation. Plaintiff alleged that that he had been defamed when, in a workshop session prior to a school board meeting, the School District's Superintendent told the assembled school board members that "a very reliable source" told him that Plaintiff and his wife had "bought their son [a former student at the District] a shotgun for graduation" and that the Superintendent "did not respond when subsequently 'asked by a school board member if he meant that the [Plaintiff] had armed his son in preparation for an attack against the School Board.'"

Defendants moved for summary judgment, contending that the statements made to the school board by the Superintendent and the Vice President of the school board were covered by an absolute privilege". Supreme Court granted the Defendants' motions, and Plaintiff appealed.

The Appellate Division affirmed the lower court's ruling, explaining "[I]t is well settled that government officials are absolutely immune for discretionary acts carried out in the course of official duties and that immunity attaches 'however erroneous or wrong [such conduct] may be, or however malicious even the motive which produced it'", citing  Crvelin v Board of Educ. of City Sch. Dist. of City of Niagara Falls, 144 AD3d 1649. In the words of the Appellate Division, "The absolute privilege defense affords complete immunity from liability for defamation to 'an official [who] is a principal executive of State or local government[,] or [who] is [otherwise] entrusted by law with administrative or executive policy-making responsibilities of considerable dimension'".

The Appellate Division noted the decision in Sindoni v Board of Educ. of Skaneateles Cent. Sch. Dist., 217 AD3d 1363, in which reference was made to a two-prong test "with respect to statements made during the discharge of those responsibilities about matters which come within the ambit of those duties". The first prong of the test "requires an examination of ... status of the speaker," and "the second prong ... the subject matter of the statement and the forum in which it is made in the light of the speaker's public duties".

In this action the Plaintiff did not dispute that the Superintendent of the district, and the Vice President of the school board, are government officials to whom the absolute privilege would apply, thus satisfying the first prong of the test referred to in Sindoni.

As to the second prong, the Appellate Division said the "question presented is whether [the two officials] were acting within the scope of their public duties" when, as alleged in the amended complaint, the Superintendent "told the assembled school board members during a workshop session that [Plaintiff] had purchased a firearm for his son", and the Vice President of the school board stated that "she had seen social media posts commenting on the situation."

The Appellate Division concluded that Defendants submitted undisputed evidence in support of the motions for summary judgment establishing, as a matter of law, that the statements of the Superintendent and the Vice President of the Board "were made during the course of the performance of their public duties".* In the words of the Appellate Division, "Specifically, the statements concerned rumors of a potential firearm-related threat to the safety of students, faculty, and board members and thus fell squarely within the scope of the duties and responsibilities of [the School Superintendent and the Vice President of the Board]."

Accordingly, the court concluded that the statements were absolutely privileged and Supreme Court had properly granted the Defendants' motions for summary judgment.

* In Hemmens v Nelson, 138 NY 517, the Court of Appeals explained "From considerations of public policy and to secure the unembarrassed and efficient administration of justice and public affairs, the law denies to the defamed party any remedy through an action for libel or slander in such cases".

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

 

Requiring and providing for administrative disciplinary hearings

Subject to certain exceptions with respect permanent employees serving a probationary period,* conducting administrative disciplinary hearings of [1] an employee of the State, as the employer, [2] an employee of a political subdivision of the State and [3] employees of other employers subject to the provisions of the Civil Service Law holding a position subject to the provisions of §75 of the Civil Service Law, §3020-a of the Education Law or a similar law, rule or regulation, or a relevant provision of a collective bargaining agreement negotiated pursuant to Article 14 of the Civil Service Law, is a condition precedent to imposing an authorized penalty on an individual found guilty of such disciplinary charges, in whole or in part, including the termination of the individual from the position or setting a lesser penalty.**

§75 of the Civil Service Law provides, in pertinent part, as follows:

§75. Removal and other disciplinary action. 1. Removal and other  disciplinary action. A person described in paragraph (a) or paragraph (b), or paragraph (c), or paragraph (d), or paragraph (e) of this subdivision shall not be removed or otherwise subjected to any disciplinary penalty provided in this section except for incompetency or misconduct shown after a hearing upon stated charges pursuant to this section.

In contrast, an employee served with disciplinary charges pursuant to §3020-a of the Education Law is required to notify the clerk or secretary of the employing board in writing whether he or she desires a hearing on such charges.***

§3020-a[2]f of the Education Law provides, in pertinent part, as follows:

f. The unexcused failure of the employee to notify the clerk or secretary of his or her desire for a hearing within ten days of the receipt of charges shall be deemed a waiver of the right to a hearing. Where an employee requests a hearing in the manner provided for by this section, the clerk or secretary of the board shall, within three working days of receipt of the employee's notice or request for a hearing, notify the commissioner [of education] of the need for a hearing. If the employee waives his or her right to a hearing the employing board shall proceed, within fifteen days, by a vote of a majority of all members of such board, to determine the case and fix the penalty, if any, to be imposed in accordance with subdivision four of this section.

§3020-a[3] of the Education Law, in pertinent part, provides as follows:

3. Hearings. a. Notice of hearing. Upon receipt of a request for a hearing in accordance with subdivision two of this section, the commissioner [of education] shall forthwith notify the American Arbitration Association (hereinafter "association") of the need for a hearing and shall request the association to provide to the commissioner [of education] forthwith a list of names of persons chosen by the association from the association's panel of labor arbitrators to potentially serve as hearing officers together with relevant biographical information on each arbitrator. Upon receipt of said list and biographical information, the commissioner [of education] shall forthwith send a copy of both simultaneously to the employing board and the employee. The commissioner [of education] shall also simultaneously notify both the employing board and the employee of each potential hearing officer's record in the last five cases of commencing and completing hearings within the time periods prescribed in this section.

* In York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees in the Classified Service 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.”

** Employment has been held to be "property" within the meaning of the due process clause of the Constitution of the United States and where the appointing authority serves disciplinary charges on an individual which may result in the termination of the individual's employment, the affected employee is entitled to due process of law. Further, "Due process requires that the * * * hearing be open to the press and public" [See Fitzgerald v. Hampton, 467 F. 2d 755, 766]. 

*** N.B. §3020-a[2]d of the Education Law provides as follows:  The employee shall be terminated without a hearing, as provided for in this section, upon conviction of a sex offense, as defined in subparagraph two of paragraph b of subdivision seven-a of section three hundred five of this chapter. To the extent this section applies to an employee acting as a school administrator or supervisor, as defined in subparagraph three of paragraph b of subdivision seven-b of section three hundred five of this chapter, such employee shall be terminated without a hearing, as provided for in this section, upon conviction of a felony offense defined in subparagraph two of paragraph b of subdivision seven-b of section three hundred five of this chapter. [Emphasis supplied.]

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The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State and its political subdivisions set out in an e-book. For more information and access to a free excerpt from this e-book, click HERE.