Removing a tenured State or municipal employee alleged to have abandonment the position from service

New York State Civil Service Rule 4 NYCRR 5.3(d), since repealed, permitted the appointing authority of a State department or agency employee to terminate a tenured employee in the Classified Service absent for a period of ten or more days without an explanation by deeming the employee to have resigned from his or her position. Many local commissions had adopted a similar rule or regulation. In Bernstein v Industrial Commissioner, 59 AD2d 678, the Appellate Division held that so terminating such a tenured employee under color of 4 NYCRR 5.3(d) violated the employee's right to administrative due process. 

Notwithstanding the Bernstein decision, such a provision has survived in collective bargaining agreements negotiated pursuant to Article 14 of the Civil Service Law, the so-called "Taylor Law", with respect to tenured employees in the Classified Service. For example, in Schacht v City of New York, 39 NY2d 28, the Court of Appeals noted that the relevant collective bargaining agreement expressly provided that the unauthorized absence of a tenured employee in the Classified Service for 10 consecutive workdays could be deemed to constitute a resignation by the appointing authority.

In Ciccarelli v West Seneca Central School District, 107 AD2d 105, a tenured teacher* challenged a Board of Education’s resolution terminating her from her position based on its finding that she had abandoned her position. Tracking Bernstein, the Appellate Division the court explained that the burden of proving that the educator had abandoned her tenured teaching position was upon the appointing authority and must be supported  "by clear and convincing evidence" that a teacher, by a "voluntary and deliberate act" intended to relinquish her teaching position and forfeit her tenure rights. Otherwise, opined the court, a tenured teacher may be terminated only in accordance with the disciplinary procedures set out in §3020-a of the Education Law.

* Teachers serve in positions in the Unclassified Service.

The finding of an unwarranted invasion of privacy an exception to disclosure of medical records pursuant to New York State's Freedom of Information Law

In this appeal the Appellate Division held that Supreme Court had properly determined that an exception to New York State's Freedom of Information Law [FOIL] disclosure requirements for "an unwarranted invasion of privacy", applied to the medical records of Petitioner's murder victim, citing Public Officers Law §87[2][b] and Newton v District Attorney of Bronx County, 186 AD2d 57,

In addition, the Appellate Division held that "Autopsy records concerning the Petitioner's victim were also exempt from disclosure," citing Public Officers Law §87[2][a]; the New York City Charter §557[g]; and Mitchell v Borakove, 225 AD2d 435, [appeal dismissed 88 NY2d 919.

Addressing the Respondent's denial of access to graphic photographs of the victim of the murder pursuant to Public Officers Law §87(2)(b), the Appellate Division opined that Petitioner "failed to articulate any public interest in disclosure of these photographs which would require the court to balance the public's interest in disclosure against the victim and her family's privacy rights", citing Matter of New York Times Co. v City of N.Y. Fire Dept., 4 NY3d 477, and Matter of Edwards v New York State Police, 44 AD3d 1216.

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

Retired county police officer alleged to have taken unlawful pension benefits from the New York State and Local Retirement System

On February 7, 2023, New York State Comptroller Thomas P. DiNapoli and Ulster County District Attorney David J. Clegg announced the indictment* of a former Ulster County BOCES criminal justice instructor, a retired Westchester County Police Officer. The retired police officer allegedly stole over $163,000 from the New York State and Local Retirement System (NYSLRS) by taking unlawful pension payments and forging a required certificate purportedly issued by the State Education Department (SED).

“The defendant allegedly submitted forged documents to scam the New York state retirement system,” DiNapoli said. “He will now face the consequences of his actions. Safeguarding the New York State and Local Retirement System and maintaining its integrity are priorities for my office. I thank District Attorney Clegg, the State Education Department and the State Police for their partnership in holding accountable those who think they can swindle the pension system.”

After retiring from the Westchester Police Department in 2005, Anthony Sciacca was hired as an instructor at Ulster County BOCES teaching criminal justice and earning a salary of over $70,000. As a retiree under the age of 65 at the time, without a waiver, Sciacca was not allowed to earn more than $30,000 annually in other New York State public employment while continuing to receive his full NYSLRS pension benefit.**

The joint investigation revealed that while Sciacca had a lawful waiver from Sept.1, 2005 through June 30, 2011, he did not have a lawful waiver for the next eight years. However, he continued to earn his Ulster County BOCES public salary in excess of $70,000 on top of receiving his monthly NYSLRS pension payments.

When the NYSLRS discovered that Sciacca’s income was over the limit and that it had no waivers on file, Sciacca’s pension was suspended, and he was asked to provide copies of any waivers he had been granted. In response to NYSLRS’ inquiry, Sciacca allegedly supplied the retirement system with falsified documents. These documents stated that his waivers had been approved.

The investigation revealed that these documents were fraudulent, and that no such waivers had been obtained. Through his scheme, Sciacca was able to collect over $163,000 in NYSLRS pension payments to which he was not entitled.

DiNapoli’s investigation was spurred by SED’s examination of Sciacca’s credentials. During this review, SED also discovered that Sciacca had allegedly forged a document to show that he had received a “Security Operations, Professional Certificate,” which was a requirement of his continued BOCES employment. 

Sciacca was arraigned in Ulster County Criminal Court before Judge Bryan E. Rounds on Feb. 6, 2023, and is due back in court on Feb. 22, 2023. He was charged with Scheme to Defraud, Grand Larceny, Defrauding the Government, four counts of Forgery, two counts of Offering a False Instrument for Filing, two counts of Falsifying a Business Record and Retirement Fraud. Ulster County Assistant District Attorney Felicia S. Raphael, chief of the Financial & Cyber Crimes Bureau, is prosecuting the case.

The charges add to those first brought against him when he was arrested on July 14, 2022, which then included Grand Larceny, three counts of Forgery, three counts of Filing a False Instrument, three counts of Falsifying Business Records and one count of retirement fraud.

* The charges filed in this case are merely accusations and the defendant is presumed innocent unless and until proven guilty in a court of law.

** See, generally, Article 7 of the Retirement and Social Security Law, which addresses the reemployment of retired public employees of the State of New York in the public service in the State of New York.

###

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.

Employer's motion to confirm an arbitration award granted

The Appellate Division affirmed Supreme Court's denial of the Respondent union's cross motion to vacate the arbitration award, explaining courts lacks the authority, to "examine the merits of an arbitration award and substitute its judgment for that of the arbitrator [, even if] it believes its interpretation would be the better one"*, citing Matter of United Fedn. of Teachers, Local 2, AFT, AFL—CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72.

Noting the ruling in Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, [cert.  dismissed 548 US 940], the Appellate Division said "It is well settled that judicial review of arbitration awards is extremely limited", although "CPLR 7511(b)(1)(iii) permits vacatur of an award where ... the arbitrator exceeds his or her power."

The Appellate Division then observed that the arbitrator exceeds his or her power where his or her award "violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power," citing Barone v Haskins, 193 AD3d 1388, appeal dismissed 37 NY3d 1032, lv denied 37 NY3d 919 [see Matter of New York City Tr. Auth. v Transport Workers' Union of Am., Local 100, AFL-CIO, 6 NY3d 332].

The Appellate Division opined that in the instant matter "the arbitrator merely interpreted and applied the provisions of the relevant collective bargaining agreement (CBA), as she had the authority to do," citing Lackawanna Professional Fire Fighters Assn., Local 3166, IAFF, AFL-CIO, 156 AD3d at 1408, and that the court was "powerless to set aside that interpretation even if we disagree with it...."

* The Appellate Division indicated that the plain language of the Collective Bargaining Agreement [CBA] supported the arbitrator's interpretation of the CBA.

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

Compelling disclosure of records pursuant the New York State's Freedom of Information Law

 

Matter of Puig v New York State Police

2023 NY Slip Op 00258

Decided on January 19, 2023

Appellate Division, Third 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:January 19, 2023

534648

[*1]In the Matter of Kenneth Puig, Appellant,

v

New York State Police et al., Respondents.

Calendar Date:December 15, 2022
Before:Garry, P.J., Lynch, Aarons, Reynolds Fitzgerald and Ceresia, JJ.

Law Offices of Cory H. Morris, Melville (Cory H. Morris of counsel), for appellant.

Letitia James, Attorney General, Albany (Laura Etlinger of counsel), for respondents.

 

Ceresia, J.

Appeal from a judgment of the Supreme Court (Catherine E. Leahy Scott, J.), entered November 17, 2021 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent New York State Police denying petitioner's Freedom of Information Law request.

Following the repeal of Civil Rights Law § 50-a (see L 2020, ch 96, § 1) — which formerly shielded law enforcement personnel records from inspection or review without a court order— petitioner, an attorney, made a Freedom of Information Law (hereinafter FOIL) request for, among other things, copies of all disciplinary records of any state trooper who had been disciplined. Respondent New York State Police (hereinafter respondent) denied the request on the ground that it failed to reasonably describe the records sought and was exceedingly broad. Specifically, respondent stated that it had employed thousands of individuals throughout its history and noted that disciplinary records are maintained by individual employee, such that a search of every employee's file would constitute a monumental task. Petitioner sent respondent a letter administratively appealing this determination and, within that letter, modified his request, indicating that he was only seeking disciplinary records of active troopers assigned to the Counties of Orange, Dutchess and Ulster. In response to the administrative appeal, respondent affirmed the denial of the broader request but remitted the narrower, modified request to its Records Access Office for a determination. Upon remittal, that office denied petitioner's modified request on the basis that it still failed to reasonably describe the records sought, because respondent's employee files, in which disciplinary records are kept, cannot be searched by county of assignment. Petitioner administratively appealed, and respondent failed to rule on the appeal.

Petitioner thereafter commenced this CPLR article 78 proceeding to compel disclosure of the records sought in his modified request. Petitioner also sought an order directing respondent to undergo training regarding its legal obligations under FOIL, as well as an award of counsel fees and litigation costs. Following joinder of issue, Supreme Court dismissed the petition, finding that respondent had established a valid basis to deny the modified request — namely, that it was unable to search for and locate the records sought when described by county. The court also denied the additional requested relief. Petitioner appeals.^[FN1]

It is well settled that, "[u]nder FOIL, agency records are presumptively available for public inspection" (Matter of Empire Ch. of Associated Bldrs. and Contractors, Inc. v New York State Dept. of Transportation, ___ AD3d ___, ___, 2022 NY Slip Op 06852, *1 [3d Dept 2022] [internal quotation marks and citations omitted]). While Public Officers Law § 89 (3) (a) requires that the records sought be "reasonably described," an agency denying a FOIL request for lack of a reasonable description "bears the burden to establish that the descriptions were insufficient for purposes of locating and identifying the documents sought" (Matter of Jewish Press, Inc. v New York State Police, 207 AD3d 971, 974 [3d Dept 2022] [internal quotation marks and citations omitted]; see Matter of Konigsberg v Coughlin, 68 NY2d 245, 249 [1986]). With particular respect to records that are maintained electronically, the agency must show "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" (Matter of Pflaum v Grattan, 116 AD3d 1103, 1104 [3d Dept 2014]; see Matter of Reclaim the Records v New York State Dept. of Health, 185 AD3d 1268, 1269 [3d Dept 2020], lv denied 36 NY3d 910 [2021]).

As noted above, in denying petitioner's modified request, respondent indicated that it was not able to conduct a search of its disciplinary records based upon a trooper's county of assignment. Thus, respondent reasoned, it would be necessary to search "every employee's individual file[], a herculean task that is not required under FOIL." Respondent elaborated upon this reasoning in its answer to the petition by submitting the sworn affidavit of an attorney assigned to assist respondent with FOIL requests, who claimed that, although respondent has the ability to "track discipline electronically [going] back to 1999," respondent "does not file, maintain or index employee records by what county they work out of. To the extent that [respondent] is an agency that services the entire State of New York, there may be instances where [m]embers of [respondent] work across county lines or in multiple counties on the same day."

Notwithstanding this position, the parties acknowledge that the three counties at issue in petitioner's modified request are served by only two of respondent's 11 troops — Troop F and Troop K. Respondent concedes that troopers are generally assigned to work in a specific troop. Thus, given that the records sought by petitioner are confined to two identifiable troops, we find that the description in petitioner's modified request was reasonable and sufficiently detailed to enable respondent to locate and identify the requested records.

However, the question of whether a request contains a reasonable description is separate from consideration as to whether the request is unduly burdensome (see Matter of Jewish Press, Inc. v New York City Dept. of Educ., 183 AD3d 731, 733 [2d Dept 2020]; Matter of New York Comm. for Occupational Safety & Health v Bloomberg, 72 AD3d 153, 162 [1st Dept 2010]). While an agency may not "evade the broad disclosure provisions of FOIL by merely asserting that compliance could potentially require the review of [a large volume] of records" (Matter of Ruberti, Girvin & Ferlazzo v New York State Div. of State Police, 218 AD2d 494, 499 [3d Dept 1996]), we note that the record concerning this issue is not sufficiently developed, in that it does not demonstrate how many troopers' files would need to be searched or the particular manner in which such a search would be conducted. Accordingly, we remit the matter to Supreme Court for a determination as to whether it would be unduly burdensome for respondent to comply with petitioner's modified request (see Matter of Jewish Press, Inc. v New York City Dept. of Educ., 183 AD3d at 733; Matter of New York Comm. for Occupational Safety & Health v Bloomberg, 72 AD3d at 162). Upon remittal, the court shall also reconsider whether petitioner is entitled to counsel fees and costs (see Public Officers Law § 89 [4] [c] [ii]).

Garry, P.J., Lynch, Aarons and Reynolds Fitzgerald, JJ., concur.

ORDERED that the judgment is modified, on the law, without costs, by reversing so much thereof as denied petitioner's modified requests for records, counsel fees and costs; matter remitted to the Supreme Court for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.

Footnotes

Footnote 1: To the extent that petitioner now challenges the denial of his original request for all trooper disciplinary records statewide, that claim is unpreserved as it was not raised in the petition (see Matter of Urena v Mulligan, 201 AD3d 1215, 1218 [3d Dept 2022]; Marshall v City of Albany, 184 AD3d 1043, 1044 [3d Dept 2020]).