Disclosure of public records pursuant to the Freedom of Information Law

Disclosure of public records pursuant to the Freedom of Information Law

Cook v Nassau County Police Dept., 2013 NY Slip Op 06364, Appellate Division, Second Department

An individual submitted a Freedom of Information [FOIL] request for certain “records” that were held in the police department’s files. The custodian of the records declined to disclose certain documents sought by the individual.

The individual filed a petition pursuant to CPLR Article 78 seeking those records that had been withheld and Supreme Court ruled that some of the records sought by the individual were to be disclosed and others could be withheld by the custodian of the records.

The individual appealed that branch of his petition that Supreme Court denied while the police department cross-appeal from so much of the same judgment, that, in effect, granted those branches of the petition which were to direct it to disclose certain letters, redacted email messages, and a redacted one-page record from an internal affairs investigation.

The Appellate Division affirmed the Supreme Court’s decision, noting that “The Freedom of Information Law … was enacted "to promote open government and public accountability" and "imposes a broad duty on government to make its records available to the public," citing Gould v New York City Police Dept., 89 NY2d 267.

The court explained that FOIL provides that government records are presumptively open for public inspection unless they fall within one of the exceptions specified by Public Officers Law §87(2), which permits an agency to deny access to records which "are specifically exempted from disclosure by state or federal statute."

One such statute, said the Appellate Division, exempting records from disclosure is Civil Rights Law §50-a(1),*which provides, in relevant part, that "[a]ll personnel records used to evaluate performance toward continued employment or promotion" of police officers "shall be considered confidential and not subject to inspection or review." However, "when access to an officer's personnel records relevant to promotion or continued employment is sought under FOIL, nondisclosure will be limited to the extent reasonably necessary to effectuate the purposes of Civil Rights Law §50-a to prevent the potential use of information in the records in litigation to degrade, embarrass, harass or impeach the integrity of the officer."

In this instance the court found that Supreme Court properly determined, after an in camera inspection,**that the only portion of an internal affairs investigation report which should be disclosed pursuant to FOIL was a redacted one-page "Citizen Complaint Summary."

The Appellate Division rejected the police department’s argument that that the redacted "Citizen Complaint Summary" also should have been shielded from disclosure pursuant to Civil Rights Law §50-a(1). That portion of the internal investigation report, as redacted, said the court, does not "contain any invidious implications capable facially of harassment or degradation of the officer in a courtroom."

* Other public records, the release of which is limited by statute, include Education Law, §1127 - Confidentiality of records and  §33.13, Mental Hygiene Law - Clinical records; confidentiality].

**  A legal proceeding is in camera when a hearing is held before the judge in his or her private chambers or when the public is excluded from the proceeding.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06364.htm

.

Off-duty misconduct

Off-duty misconduct
2013 NY Slip Op 06085, Appellate Division, First Department

The Appellate Division unanimously affirmed NYC Police Commissioner Raymond Kelly’s dismissal of a police officer found guilty of discharging his weapon “in the direction of his former girlfriend during an altercation” while off-duty. The court said that there was substantial evidence to support the Commissioner’s finding.

In addition, the Appellate Division noted that the officer was also found guilty of the charges that he was “out of residence while on sick report” and provided false information concerning his absence based on his guilty plea to the allegations.

The police officer’s argument that the hearing officer “improperly placed the burden of proof on him” was rejected by the court as the record indicated that Department satisfied its burden of proving that the officer had committed the acts charged and the hearing officer determined that the officer’s testimony did not rebut the Department’s evidence. 

Citing Featherstone v Franco, 95 NY2d 550, the court said that the penalty of termination did not shock its sense of fairness.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06085.htm
. 

Job openings available on New York State’s JOBS EXPRESS website

Job openings available on New York State’s JOBS EXPRESS website
Source: Office of the Governor

Governor Andrew M. Cuomo announced more than 82,000 positions are currently listed on New York State’s Jobs Express website.

Jobs Express connects job seekers to openings in each Region of the state and currently lists an average of 51,000 new jobs each month statewide. The Jobs Express website takes thousands of jobs posted by employers and sorts them by Region to help job seekers evaluate what industries are growing in their area and find out what opportunities are available in specific economic sectors.

Statewide, the highest numbers of available jobs are in the fields of: Sales and Related positions; Management; Office, Clerical and Secretarial; Computer and Mathematical; and Healthcare Practitioner and Technical.

Certain areas of the State, however, offer employment opportunities in additional fields. In the North Country Region, for example, businesses are listing more than 2,100 open positions on Jobs Express with the highest number of available jobs in the fields of: Farming, Fishing and Forestry; Sales and Related positions; Healthcare Practitioner and Technical; Office, Clerical and Secretarial; and Transportation and Material Moving.

Job seekers and employers interested in learning more should visit the Jobs Express website at www.labor.ny.gov/jobs/.
. .

Audits of municipalities issued by New York State's Comptroller Thomas P. DiNapoli during the week ending October 5, 2013

Audits of municipalities issued by New York State's Comptroller Thomas P. DiNapoli during the week ending October 5, 2013.

Click on text highlighted in color to access the full report

Comptroller DiNapoli’s office periodically audits local governments to assist them to improve their financial management practices. DiNapoli said "These audits are tools for local officials to make sure proper policies and procedures are in place to protect taxpayer dollars and provide the best possible service these taxpayer dollars can deliver."

Town of Alexander – Internal Controls Over Justice Court Operations (Genesee County)
A town justice does not deposit money in a timely manner, file accurate monthly reports, maintain an accurate listing of bail, or maintain a reliable cash receipts record. Auditors also found a $721 shortage in the account of another justice. In addition, town justices do not issue appropriate duplicate receipts or properly report pending and disposed cases to the Department of Motor Vehicles.

Town of Amherst – Recording Financial Activity and Fleet Management (Erie County)
Auditors found that the town comptroller has not properly accounted for and reported reserve funds and other restricted moneys. The town comptroller does not record reserve activity in the financial system, but rather accounts for certain reserves separately and in some cases does not maintain any record of the reserves. This resulted in more than $2 million, which should have been used for debt service, remaining idle since 2004.

Broome County – Financial Condition (2013M-224)
While the county’s general fund seems to be in recovery, the significant reliance and use of fund balance to finance operations has impacted the county’s cash flow.

Town of Coeymans – Recordkeeping and Cash Disbursements (Albany County)
The town’s annual financial report did not properly reflect the true financial condition of the sewer district fund. Also, there is an inadequate segregation of duties for payroll. The payroll clerk’s duties include making changes to salaries and wages but she is also capable of submitting data changes directly to the payroll-processing contractor without approval, and there is no comparison of the amounts of the payroll checks to the payroll journals after they are prepared.

Franklin County – Fiscal Stress (2013M-252)
The county’s general fund realized annual operating deficits, declining fund balance, and declining cash balance over the last four fiscal years (2009 to 2012). In addition, the county did not have sufficient cash to pay its bills and other obligations when due, resulting in the county issuing short-term debt in the form of a tax anticipation note for $4 million on May 31, 2013.

Village of Liberty – Financial Condition (Sullivan County)
The village clerk-treasurer did not maintain the village’s accounting records in an accurate manner. As a result, in two of the last five fiscal years, village officials appropriated more fund balance than was available in the general fund. Also, the board has not developed long-term funding plans to address the village’s deteriorating financial position.

Town of Middlebury – Purchasing (Wyoming County)
The town did not follow its competitive bidding policy when it purchased $10,362 of unleaded gasoline and $33,068 of diesel fuel from a local vendor. In addition, the town purchased a tractor in April 2012 for $38,200 without publicly soliciting bids as required.

Montgomery County – Financial Condition (2013M-234)
The county’s declining financial condition is the result of poor budgeting and financial management practices and the failure to develop and use long-term financial plans. For example, the board did not adopt realistic and structurally balanced budgets and instead consistently relied on appropriating fund balance to finance recurring expenditures. As of Dec. 31, 2012, the county reported a total fund balance of $11.4 million in the general fund, a decline of 41 percent from the Jan. 1, 2010 total fund balance of $19.2 million.

Village of Mount Morris – Justice Court (Livingston County)
The cash account of a village justice had a shortage of at least $1,200. The shortage occurred because the justice failed to oversee the work of his former court clerk and account for all moneys received and disbursed through the court. Auditors found that the former court clerk altered and deleted computerized receipts, did not deposit cash receipts timely and intact, and failed to reconcile bank accounts.

Town of Rossie – Records and Reports and Cash Disbursements (St. Lawrence County)
The town supervisor did not maintain accurate computerized accounting records and reports. In addition, the supervisor filed the town’s annual financial report with the Office of the State Comptroller 116 days late for 2008, 112 days late for 2009 and 374 days late for 2010. As of December 2012, the supervisor had not filed the annual financial report for 2011.

Saratoga County – Financial Condition (2013M-235)
Although the county board of supervisors adopted realistic budgets, the general fund’s financial position and the fund used to account for the operations of the county-run nursing home have shown negative trends. Specifically, the total general fund balance decreased 41 percent, from $24.7 million at Jan. 1, 2010, to $10.3 million at Dec. 31, 2012 due, in part, to subsidizing the nursing home.

N. B. The Comptroller has created an easy to use website on the Internet to provide access to state and local government spending and nearly 50,000 state contracts at http://www.openbooknewyork.com/ 

.

Introducing a video tape of an event as evidence in a judicial or quasi-judicial proceeding

Introducing a video tape of an event as evidence in a judicial or quasi-judicial proceeding
2013 NY Slip Op 06292, Appellate Division, First Department

The availability of video cameras for employee surveillance is becoming an important issue in terms of employee privacy and the expectation of employees to privacy at the work site. It may also become an issue should a video tape of an incident is introduced in the course of an administrative disciplinary hearing.

In any event, video tape evidence must be presented without modification as the decision in Principe v New York City Dept. of Educ. 94 AD3d 431, demonstrates.

In Principe the Appellate Division said that it appeared that the hearing officer gave “an inordinate amount of credit” to a portion of a video recording that had been altered from its original format so that it appeared frame by frame at one-second intervals rather than its original format of a continuous video recorded in real time. The court commented that this alteration to the videotape made what actually transpired during that incident unclear and equivocal.*

In contrast, in People v Hill, a criminal action, the Appellate Division said that Supreme Court “properly denied defendant's suppression [of video tape evidence] motion, explaining that the surveillance video tape “was adequately authenticated by the testimony of a detective who, while working a second job for a security company, hooked up the surveillance cameras to the video recorder and checked on a daily basis that the system was functioning properly.”

The Appellate Division decided that “The detective's testimony, when viewed in the light of common sense, supports the conclusion that the video tape accurately and completely depicted the events at issue.”

Further, said the court, “that the detective testified to the unaltered condition of the tape, and any gaps in the chain of custody went to the weight to be accorded the evidence, not its admissibility.”

* Decisions concerning use of video records include DiMichel v South Buffalo Railway Company, 80 NY2d 184, reargument denied, Poole v Consolidated Rail Corp, 595 NYS 2d 397, cert den 114 SCt 68, 510 US 816, rearg dism 610 NYS2d 156

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_06292.htm
.

Procedural defects result in dismissal of the petitioner's appeal to the Commissioner of Education

Procedural defects result in dismissal of the petitioner's appeal to the Commissioner of Education

Decisions of the Commissioner of Education, Decision No.16,555

The petitioner [Administrator] in this appeal holds certification as a school district administrator and a school administrator/supervisor and had been serving as the School District’s full-time Director of Pupil Personnel Services since 2004 

Administrator alleged that in 2011 she asked to have her position reduced from a full-time position to a .8 full time equivalent [FTE] position in connection with her maternity leave. The Board subsequently voted to reduce the professional obligation of the Director of Pupil Personnel Services position from a 1.0 FTE to a .8 FTE, effective July 1, 2011.

Administrator, claiming that it was her understanding that her position was reduced from a 1.0 FTE to a .8 FTE for the 2011-2012 school year only and that she would return to a 1.0 FTE position for the 2012-2013 school year, appealed the Board's action to the Commissioner of Education. Administrator contended that she had requested a reduction in her schedule only for the 2011 - 2012 school year and cited “her prior conversations with the superintendent” in support of her claim.

Administrator also argued that if her position was permanently reduced to a .8 FTE position, she had greater seniority in the administrative tenure area than did another administrator and therefore the other administrator should be assigned to the .8 FTE position.

The Commissioner first addressed a procedural issue involving the verification of the petition filed by Administrator.

Noting that the verification on Administrator's petition was dated "September 6, 2011," prior to the date of the petition, which was dated September 12, 2011, and Administrator's verified reply admitted that modifications were made to her petition after September 6, 2011, the Commissioner said that it was impossible to tell which allegations in the petition were properly verified. Accordingly, the Commissioner ruled that the petition was not properly verified and he elected not excuse this omission "as the defect was never cured."

Turning to the Board’s argument that Administrator’s appeal was untimely, the Commissioner said that he “must also dismiss the appeal as untimely.”

An appeal to the Commissioner of Education “must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown.”

In this instance, said the Commissioner, “ It appears from the record that the action resulting in the 20 percent reduction in [Administrator’s] position from which she seeks relief was taken by the board on March 28, 2011,” at which time the board “permanently reduced her position from a 1.0 FTE to a .8 FTE.”

Although Administrator alleged that she did not learn of this permanent reduction in her position to .8 FTE until August 19, 2011, the Commissioner said that he rejected that assertion, explaining that the record reflects that Administrator had “reached out to the School Administrators Association of New York State (“SAANYS”) and asked how these actions affect her employment rights.”

SAANYS responded to Administrator by letter dated April 5, 2011 in which SAANY stated that it was its “understanding is that the district’s board recently voted to reduce your position from full-time to a .8 position for the school year beginning July 1, 2011.”

....

Further, said the Commissioner, in a letter dated May 13, 2011 from Board’s Counsel to SAANYS, Counsel was clearly stated that “The District wishes to initially clarify several statements in [SAANYS’s] letter. First, [Administrator] requested that her position be reduced to a .8 FTE position as of July 1, 2011” and “The district understood this request was not just for the 2011-2012 school year, but [was a request for] a permanent reduction.”

The Commissioner concluded that “From [the Board’s Counsel’s] letter, it is clear that it was the intent of the School Board to permanently reduce [Administrator’s] position. As the petition was not served until September 15, 2011, which is well over 30 days from the March board action and even the April and May letters, the appeal must also be dismissed as untimely.”

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume53/documents/d16555.pdf

.