Compelling the disclosure of records pursuant to New York State's Freedom of Information Law with respect to complaints and allegations made against police officers "that were not substantiated"

In the Matter of New York Civil Liberties Union v. Village of Freeport, 2024 NY Slip Op 03824, the Appellate Division held that upon repealing Civil Rights Law §90-a, the New York State Legislature amended the "Public Officers Law to specifically contemplate the disclosure of 'law enforcement disciplinary records,' which it defines to include 'complaints, allegations, and charges against an employee'".

Further, opined the court, if the State Legislature "had intended to exclude from disclosure complaints and allegations that were not substantiated, it would simply have stated as much", observing "[it] did not, and instead included 'complaints, allegations, and charges' in its definition of disciplinary records, along with 'the disposition of any disciplinary proceeding,' without qualification as to the outcome of the proceeding".

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

A member of the New York City's Education Retirement System retired based on the System's erroneous representation she was eligible to do so must file a timely CPLR Article 78 seeking retirement benefits denied her

The New York City Board of Education Retirement System [Retirement System] initially placed the Plaintiff in its "Age 57 Early Retirement Program". Plaintiff retired on April 21, 2019, allegedly based upon representations by the Retirement System that she was eligible to retire and started receiving retirement benefits.

The Retirement System subsequently notified Plaintiff that it had determined that placing Plaintiff in the 57/5 program was an error, and that she should have been placed in the "25-Year Early Retirement Program". As Plaintiff was not yet eligible to retire, Retirement System gave the Plaintiff several options to address her premature retirement. Plaintiff elected to return to service for approximately 10 months until she was credited with 25 years of service and then file for retirement under the 55/25 program.

In October 2021, Plaintiff commenced an action seeking a judgment declaring that Retirement System was estopped from denying the Plaintiff's entitlement to retirement benefits "for the period from April 21, 2019, to the date that she returned to service or, in the alternative, to recover damages for breach of fiduciary duty, negligent misrepresentation, and negligence." Supreme Court granted Retirement Systems motion to dismiss Plaintiff's action as "time barred" and Plaintiff appealed Supreme Court's ruling.

Citing Walton v New York State Dept. of Correctional Servs., 8 NY3d 186, the Appellate Division sustained the Supreme Court's decision, noting "where [the] proceeding could have been brought pursuant to CPLR Article 78, the four-month statute of limitations applicable to such proceedings applies". In the words of the Appellate Division, "although the complaint sought declaratory relief or monetary damages, the gravamen of the complaint concerned [Plaintiff's] challenge to the Retirement System's determination dated August 7, 2019, that her retirement as of April 21, 2019, was premature due to her erroneous placement in the 57/5 program...."

As the damages sought by Plaintiff concerning her unpaid retirement benefits for the period from her retirement on April 21, 2019, to the date that she returned to service arose from and were incidental to the Retirement System's determination dated August 7, 2019, Plaintiff could have commenced a CPLR Article 78 proceeding to challenge the Retirement System's determination dated August 7, 2019, and "the four-month statute of limitations applicable to such proceedings applies".

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

Second Circuit Court of Appeals holds New York State's Board of Law Examiners has Eleventh Amendment sovereign immunity

No. 22-1661

T.W., Plaintiff-Appellant,

v.

NEW YORK STATE BOARD OF LAW EXAMINERS, DIANE BOSSE, JOHN J. MCALARY, BRYAN WILLIAMS, ROBERT MCMILLEN, E. LEO MILONAS, MICHAEL COLODNER, Defendants-Appellees.

On Appeal from the United States District Court for the Eastern District of New York.

ARGUED: JUNE 5, 2023 DECIDED: JULY 19, 2024

Before: LIVINGSTON, Chief Judge, and NARDINI, Circuit Judge.*

Below is the summary of  the ruling preceding the court's decision.

"T.W. sued Defendant-Appellee the New York State Board of Law Examiners alleging, inter alia, that the Board violated Title II of the Americans with Disabilities Act (the “ADA”) and Section 504 of the Rehabilitation Act by denying her requests for certain accommodations on the New York State bar examination in 2013 and 2014. 

"The Board moved to dismiss T.W.’s complaint, asserting that the United States District Court for the Eastern District of New York (Raymond J. Dearie, District Judge) lacked subject matter jurisdiction because New York’s sovereign immunity barred T.W.’s ADA and Rehabilitation Act claims under the Eleventh Amendment. The district court denied the Board’s motion to dismiss, but this Court reversed, holding that the Board was immune from suit under Section 504 of the Rehabilitation Act** and remanding for consideration of the Board’s motion to dismiss as to T.W.’s Title II claim under the ADA. On remand, the district court granted the Board’s motion to dismiss, holding that the Board is entitled to immunity as an “arm of the state,” that Title II does not abrogate the Board’s sovereign immunity for money damages as applied to T.W.’s claim, and that T.W. could not maintain her requests for declaratory and injunctive relief under Ex parte Young. 

"On appeal, T.W. argues that the Board is not an arm of the state, and even if it were an arm of the state, Title II has abrogated Eleventh Amendment immunity in the context of T.W.’s claim. In addition, T.W. argues that even if the Board enjoys sovereign immunity, she may seek her requested declaratory and injunctive relief under Ex parte Young. We disagree and therefore AFFIRM the July 21, 2022, judgment of the district court."

* Judge Rosemary S. Pooler, originally a member of this Second Circuit panel, passed away on August 10, 2023. The two remaining members of the panel, who are in agreement, determined the matter. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b); United States v. Desimone, 140 F.3d 457, 458–59 (2d Cir. 1998). 

** The Circuit Court found that the Board was not a program or activity of a department or agency that receives federal funds and was therefore immune from suit pursuant to Section 504 of the Rehabilitation Act.

Click HERE to access the text of the Second Circuit decision posted on the Internet.

New York Public Personnel Law E-books available from BookLocker, Inc.

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: http://booklocker.com/books/5215.html 

A Reasonable Disciplinary Penalty Under the Circumstances - an e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service of the State of New York and its political subdivisions in instances where the employee has been found guilty of misconduct or incompetence. For more information and access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/7401.html

The Layoff, Preferred List and Reinstatement Manual - an e-book reviewing the relevant New York State laws, rules and regulations, and selected court and administrative decisions. For more information and access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/5216.html

Disability Benefits for New York State and municipal public sector personnel - an e-book focusing on administering the Retirement and Social Security Law, the General Municipal Law Sections 207-a/207-c and similar laws providing disability benefits to employees of the State of New York and its political subdivisions. For more information and access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/3916.html

 

Elements considered in determining the final average salary of a member of the New York State Teachers' Retirement System for the purposes of determining the pension portion of the member's retirement benefit

A Tier 4 member [Petitioner] of the New York Teachers' Retirement System [TRS] retired and commenced receiving a monthly retirement allowance that included a "pension" benefit. 

Petitioner subsequently received a letter from TRS advising that it was removing certain payments he had received from the School District during the last three years of his employment — i.e., a technology/wellness allowance, vacation buyback payments and raises he received outside of a negotiated agreement — from the calculation of his final average salary [FAS] for the purpose of determining his pension benefit. This change resulted in Petitioner receiving "a reduced benefit amount". Petitioner challenged TRS's determination.

Ultimately TRS issued a final determination in May 2022, which included the raise Petitioner received during the 2018-2019 and 2019-2020 school years in the calculation of Petitioner's FAS, but excluded a technology/wellness allowance and  vacation buyback payments from this calculation.

Petitioner initiated a CPLR Article 78 proceeding contending TRS's determination was arbitrary and capricious. After receiving additional documentary evidence, TRS issued a revised determination that found Petitioner's entire reported salary for 2019-2020 — i.e., when he was promoted to deputy superintendent — pensionable, but TRS adhered to its original determinations regarding the 2017-2018 and 2018-2019 school years. In addition, TRS "capped the increases" in Petitioner's salary for the three years used to calculate his FAS at 10% of his average salary for the preceding two years. 

Petitioner filed an amended petition challenging TRS's revised final determination, which was dismissed by Supreme Court. Petitioner appealed.

The Appellate Division affirmed the Supreme Court's ruling, explaining "Where, as here, "[a] challenged determination was made [by TRS] without a hearing, judicial review is limited to whether the determination is arbitrary and capricious and without a rational basis". Further, said the Appellate Division, "if the wages* earned during any year included in the period used to determine final average salary exceeds that of the average of the previous two years by more than [10%], the amount in excess of [10%] shall be excluded from the computation of final average salary".

Additionally, the Appellate Division observed that when determining a member's base salary for the purpose of computing retirement benefits, "lump sum payments for sick leave, annual leave or any other form of termination pay" are excluded, as are any form of termination pay "to prevent artificial inflation of final average salary by payments made in anticipation of retirement". 

In determining what constitutes average regular compensation within the meaning of the statute, the Appellate Division opined that courts "must look to the substance of the transaction and not to what the parties may label it".

Petitioner had given up a technology/wellness stipend during the 2017-2018 school year in exchange for the cash value of the stipend being rolled into his base salary. This was consistent with the terms of the relevant collective bargaining agreement, which deleted this benefit in exchange for increasing the salary step schedules of all unit members by the benefit amount. 

Also noted was the fact that Petitioner's vacation time was also reduced from 30 to 20 days beginning in the 2017-2018 school year, with a prior option to sell back unused vacation time omitted from his employment contract. In exchange for giving up 10 days of vacation time Petitioner's base salary was also increased.

Notwithstanding "averments by School District officials to the contrary," after considering the totality of the record, the Appellate Division concluded that TRS could rationally determine that rolling the cash value of these benefits into Petitioner's reported salary for the 2017-2018 and 2018-2019 school years constituted payments made in anticipation of retirement that should be excluded from the calculation of Petitioner's FAS. 

The Appellate Division also noted that the 10% cap is mandated by statute and Petitioner had cited no authority for the proposition that TRS has discretion to dispense with its application.

* The term "wages", said the court, refers to "regular compensation earned by and paid to a member by a public employer", citing Retirement and Social Security Law §601[l] [a]).

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