Employer's denial of a police officer application for General Municipal Law §207-c disability benefits deemed to be a travesty under the circumstances

In October 2021, a police officer [Petitioner] employed by a New York State village police department responded to an emergency welfare call that culminated in a confrontation during which Petitioner fatally shot an individual. 

Placed on administrative leave pending an investigation, Petitioner returned to work after being cleared of any wrongdoing. In April 2022, Petitioner left work on sick leave after disclosing concerns regarding his mental health to the Village's Chief of Police. 

Petitioner began meeting with a clinical social worker and, on June 29, 2022, he was diagnosed with posttraumatic stress disorder [PTSD] stemming from the October 2021 incident. Petitioner then spoke with the Chief of Police about applying for General Municipal Law §207-c disability benefits. In accordance with the Police Chief's instructions, Petitioner promptly submitted various supporting documents and also submitted his completed application for General Municipal Law §207-c disability benefits to the Mayor of the Village.

The Mayor acknowledged receipt of Petitioner's application but Petitioner's application for General Municipal Law §207-c disability benefits was denied as untimely under the applicable collective bargaining agreement [CBA] which required that such an application had to be made within 10 business days of when the individual "reasonably should have known of the illness or injury giving rise to his claim".

Petitioner challenged the denial of his application as provided by the relevant CBA grievance process and an arbitration hearing was conducted.

The arbitrator issued a written recommendation that the Village [Respondent] exercise discretion available to it under the CBA to overlook any untimeliness in Petitioner's application and grant him General Municipal Law §207-c disability benefits. The Respondents rejected the arbitrator's recommendation and denied Petitioner's application for General Municipal Law §207-c disability benefits. 

Petitioner initiated the instant CPLR Article 78 proceeding challenging the Respondent's determination. Respondents moved to dismiss the Plaintiff's Article 78 petition for failure to state a cause of action. 

Supreme Court, reaching the merits of the Respondent's determination: 

1. Held that the Respondents' determination was not improper;

2. Held the Respondents' determination was supported by substantial evidence; and 

3. Dismissed Plaintiff's Article 78 Petition.

Plaintiff appealed the Supreme Court's rulings.

The Appellate Division found that the Respondents' determination that Petitioner had failed to demonstrate good cause for the minor delay in the submission of his application for accidental disability retirement "is unsupported by substantial evidence" and opined that it "wholeheartedly agree with the arbitrator that denying [Petitioner's] application for General Municipal Law §207-c disability benefits would be a travesty".

The Appellate Division annulled the Supreme Court's judgement and remitted the matter to the Respondents "for further proceedings not inconsistent with [its] decision".

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

Access to educational facilities

Plaintiffs allege that the New York City public education system, through its admissions and screening policies, curriculum content, and lack of diversity among the teacher workforce, discriminates against and disproportionately affects Black and Latino students, leading to unequal educational opportunities and negative outcomes for those students. 

Plaintiffs further allege that these practices and policies deprive Black and Latino students of a sound basic education in contravention of the Education Article of the State Constitution (NY Const., Article XI, §1), denies them equal protection of the laws (NY Const., Article I, §11), and denies them access to educational facilities in violation of the New York State Human Rights Law (Executive Law §296. 

Although Plaintiffs identify troubling aspects of New York City's public education system, the claims as presented in the complaint fail as a matter of law. 

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

A School Board, as the "body corporate" of a School District, not to be deemed to be the School District in the instant litigation

The Hempstead Classroom Teachers Association [Plaintiff] had entered into two settlement agreements with the Hempstead Union Free School District [School District], resolving certain grievances that had been filed by the Plaintiff against the School District. The settlement agreements set out a schedule for the School District's payment of sums due pursuant to arbitration awards entered in favor of the Plaintiff and its members.

In an action to recover damages for breach of contract, Plaintiff appealed a Supreme Court order which dismiss its complaint and denied the Plaintiff's request for leave to amend the complaint to adding the Board of Education of the Hempstead Union Free School District and the Superintendent of Schools of the School District as Defendants [hereinafter "Defendants"]. Defendants had moved to dismiss the complaint on the ground that they were not parties to the settlement agreements between the Plaintiff and the School District.

The Plaintiff appeal the Supreme Court's decision. The Appellate Division, noting that generally "[o]ne cannot be held liable under a contract to which he or she is not a party", ruled that the Supreme Court "properly granted dismissal of the complaint pursuant to CPLR 3211(a)(7)" as the Defendants were not parties to the settlement agreements between the Plaintiff and the School District. 

Citing Roseblum v Board of Educ. Great Neck Union Free Sch. Dist., 231 AD3d 881, the Appellate Division pointed out that "although the settlement agreements were subject to approval by the Board, the settlement agreements did not obligate the Board to perform on behalf of the School District". The Appellate Division explained that the School Board, as the "body corporate" of the School District, is not interchangeable with the School District.

Finding that the Supreme Court had providently exercised its discretion in denying Plaintiff's request for leave to amend the complaint, the Appellate Division pointed out that "the Plaintiff's request was made in opposition to the Defendants' motion to dismiss Plaintiff's efforts to amend the complaint by adding Defendants to the Plaintiff's complaint and not by motion or cross-motion on notice. Further, the Appellate Division observed that the Plaintiff had failed to annex a copy of the proposed amended complaint as required by CPLR 3025(b).

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

For the purposes of the Freedom of Information Law, the ability of an agency to retrieve a document is distinguishable from whether the description in the request was sufficient to allow the agency to locate it

In an action to obtain certain documents pursuant to New York State's Freedom of Information Law [FOIL], the Court of Appeals, citing Public Officers Law §89[3][a], said to trigger a government agency's obligation to produce records under FOIL the entity seeking the records "must submit to the agency a written request in which the records sought are 'reasonably described'". An agency, upon receiving such a request for records maintained electronically, must retrieve the records if it has the ability to do so "with reasonable effort".

The Petitioner in the instant CPLR Article 78 action had requested all emails between the New York City Department of Education [DOE] and a certain domain name during the period April 2021 to August 2022. DOE responded that the documents sought were "not reasonably described" because it could not "launch an effective search to locate and identify the records sought with reasonable effort." 

In particular, DOE stated that attempts to search its emails "failed to execute" using the parameters provided by Petitioner, and asked Petitioner to focus the request on a narrower timeframe or specific parties or to provide key terms to search. Petitioner declined to do so and DOE deemed Petitioner's FOIL request to have been "withdrawn".

Petitioner filed an administrative appeal. The DOE acknowledged that it "understood" Petitioner was requesting emails having certain domain names but its electronic searches for those emails "failed to execute" whereupon DOE "concluded that the request was not reasonably described". 

Petitioner commenced the instant CPLR Article 78 proceeding seeking a judgment directing DOE to provide access to the documents sought. DOE response indicated "that that all of its attempts to search its emails for the requested records timed out because there were over one million email accounts to search". 

Supreme Court denied the petition and the Appellate Division affirmed the Supreme Court's decision, holding that the documents were not "reasonably described" as required under Public Officers Law §89(3)(a) because "[t]he administrative record and the DOE's proffered affidavits demonstrate 'that the descriptions provided are insufficient for purposes of extracting or retrieving the requested document[s] from the virtual files through an electronic word search . . . [by] name or other reasonable technological effort' " 

The Court of Appeals conclude that DOE and the Appellate Division had "conflated Petitioner's obligation to reasonably describe the documents with the agency's obligation to retrieve the documents if it has the ability to do so with reasonable effort". The Court explained "The requirement that requested records be reasonably described exists to ensure that the responding agency has the ability to locate the records sought". Here, said the Court, DOE concedes that it understands what documents Petitioner seeks and knows they are located in the agency's electronic email database. Further, the record established that the description in the request was sufficient for the DOE to fashion and run electronic searches which, if successful, would have retrieved the records sought. 

However, said the Court of Appeals, "The fact that those searches timed out or failed to execute using the DOE's software is not determinative of the legal sufficiency of the request". Noting that "Whether the DOE can retrieve those documents with reasonable effort is a separate question". The Court of Appeals said it declined "decide that question today" and if DOE "can retrieve the documents with reasonable effort, it must do so."

Citing Matter of Data Tree, LLC v Romaine (9 NY3d 459, the Court of Appeals held that "if the records are maintained electronically by an agency and are retrievable with reasonable effort, that agency is required to disclose the information". The Court explained that it had articulated the reasonable effort requirement not as a facet of a petitioner's requirement to reasonably describe the documents sought, but as a requirement of the agency in responding to a written request in which the documents sought are reasonably described. 

The Court of Appeals also cited Chapter 223, §6 Laws of 2008, noting that "the legislature codified aspects of Data Tree, including the reasonable effort requirement, in Public Officers Law §89(3)(a)".

Opining that "On its face, the reasonable effort language, as codified, applies to all instances where an agency is asked to make electronic records available and is best understood as providing that the responding agency must 'retrieve or extract a record or data maintained' in a computer system unless doing so requires the agency to undertake unreasonable efforts".

In the words of the Court of Appeals, "The amendment conforms with FOIL's consistent employment of a reasonableness standard in setting forth the myriad obligations of government agencies ... and balances the importance of open government in a free society ... with the logistical complications encountered by agencies in making electronic records available upon request. Nothing suggests that the legislature, in amending the statute, intended to modify the reasonable description requirement."

Evaluating the reasonable description and reasonable effort requirements separately the Court opined should alleviate the confusion that the combined test has produced. Whether a requestor has reasonably described an electronic record does not turn on the degree of effort necessary to retrieve it, and the inability of an agency to retrieve a document with reasonable effort does not implicate whether the description in the request was sufficient to allow the agency to locate it.

Again, if a responding agency can retrieve the requested documents with reasonable effort, it must do so. What constitutes reasonable effort is necessarily a case-specific determination, and efforts are not unreasonable solely because the agency declined to execute the requestor's preferred document retrieval method. 

While FOIL imposes no obligation on the agency at the administrative level to describe its efforts to retrieve the requested records, the Court suggested that an agency might find it beneficial to describe its efforts in its correspondence with the requestor, since in a challenge to an agency's denial of access to the documents on this ground, the agency [1] has the burden to demonstrate that it cannot retrieve the requested documents with reasonable effort and [2] has the burden to establish that requested documents fall within a claimed statutory exemption.

While the DOE's claimed inability to retrieve the documents is not determinative of whether the request reasonably describes those documents, the Court observed that such an inability may bear on whether the DOE has the ability to retrieve the documents with reasonable effort. 

The Court of Appeals, concluding that the matter should be remanded to the DOE for a new determination using the proper standard, reversed the Appellate Division's order, with costs and ordered "further proceedings in accordance with the Court of Appeals' instant opinion.

Click HERE to access the opinion of the Court of Appeal posted on the Internet.

Settling a disciplinary action subject to compulsory arbitration by entering into a "Last Chance Agreement"

Plaintiff, a tenured teacher employed by a New York State school district [Employer] was served with  disciplinary charges alleging Plaintiff had failed to accurately document speech services during the 2016-2017 and 2017-2018 school years. 

Plaintiff and the Employer subsequently entered into a "Last Change Agreement" [LCA] to settle the disciplinary action whereby the parties mutually agreed that "if, at any time prior to the last day of the 2021-2022 school year following written notice and a 45-day period to cure", Plaintiff was determined by a hearing officer "after a hearing pursuant to Education Law §3020-a to have engaged in similar neglect, the [Employer] would be entitled to terminate the [Plaintiff's] employment."

On April 5, 2021, the Employer notified the Plaintiff that she was not in  compliance with the LCA due to her failure to accurately document speech services during the 2020-2021 school year and directed her to cure the deficiencies within 45 days.

Plaintiff failed to timely to cure alleged failure as required by the terms of the LCA and the Employer filed disciplinary charges against Plaintiff.

In the course of the Education Law §3020-a disciplinary action which followed, Plaintiff contended that the charged misconduct was not substantially similar to the misconduct giving rise to the LCA "because she had been assigned additional duties and responsibilities due to the COVID-19 pandemic and that she did enter the required information to accurately document the services she provided".

The hearing officer permitted the Employer to rebut Plaintiff's assertions by demonstrating that the additional entries submitted by Plaintiff "were entered after the 45-day period to cure and that prior to the COVID-19 pandemic, she had failed to document her sessions during the 2019-2020 school year, which was outside of the charged period". 

The disciplinary hearing officer issued a determination which sustained the charges and specifications alleged by the Employer and authorized the termination of Plaintiff's employment. Plaintiff appealed the hearing officer's decision in an effort to have it vacated, contending that the [disciplinary] arbitration did not conform with Education Law §3020-a. Supreme Court denied the Employer's motion to dismiss Plaintiff's appeal and ultimately granted Plaintiff's petition. The Employer appealed the Supreme Court's judgment.

The Appellate Division reversed the Supreme Court' ruling and granted the Employer's motion to dismiss Plaintiff's petition; explaining:

1. "The standard of review mandated by Education Law §3020-a (5)(a) is that of CPLR article 75, which provides that an arbitration award may be vacated only on a showing of misconduct, bias, excess of power, or procedural defects";

2. Where, as here, the obligation to arbitrate arises through statutory mandate, the hearing officer's determination is subject to closer judicial scrutiny than it would receive had the arbitration been conducted voluntarily;

3. The award in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious; and

4. In addition, CPLR Article 75 reviews questions whether the decision was rational or had a plausible basis.

Citing Matter of Harvey v Board of Educ. of the Uniondale Union Free Sch. Dist., 221 AD3d 899, the Appellate Division then observed that "When reviewing compulsory arbitrations in education proceedings such as this, the court should accept the hearing officer's credibility determinations, even where there is conflicting evidence and room for choice exists" and concluded that the determination recommending the termination of the termination of Plaintiff's employment was rational, had evidentiary support, and was not arbitrary and capricious.

The Appellate Division's decision also observed that a "last chance agreement constituted a valid, binding contract, and the neglect complained of [in the instant action], to wit, the failure to accurately document speech services during the 2020-2021 school year, was identical to the previously charged conduct".

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