A disciplinary hearing determination cannot be annulled by the court if the record supports the determination

A disciplinary hearing determination cannot be annulled by the court if the record supports the determination
Marden v Town of Bedford, 249 A.D.2d 547

The Town of Bedford Supervisor asked the Town’s Chief of Police, David M. Marden, to provide him with a copy of a report concerning alleged police misconduct. When the chief failed to comply with the directive, a number disciplinary charges were served on him. Among these were charges that alleged that Marden failed to comply with a lawful order to provide the report on five occasions: February 12, 16, 23, 27 and 28. Found guilty of misconduct, Marden was dismissed from his position.

Marden appealed. The Appellate Division said that Marden could not be guilty of insubordination on February 12 and 16, because the report in question had not been completed until February 21. Accordingly, the finding of guilt concerning charges involving these dates were not supported by substantial evidence.

The Appellate Division sustained the findings of misconduct with respect to Marden’s refusal to comply with the Supervisor’s directives on February 23, 27 and 28.

The court said an administrative determination made after a hearing cannot be annulled unless it is shown that there is no substantial evidence in the record to support the determination. Here it was found that the hearing record supported the determination that Marden “willfully refused to comply with a proper directive to turn over the investigative report....”

As to the penalty imposed, dismissal, the Appellate Division held that the penalty satisfied the Pell standard [Pell v Board of Education, 34 NY2 222] as Marden’s dismissal was not so disproportionate to the offense as to be shocking to one’s sense of fairness.

Public employees personal E-mails exempt from disclosure from FOIL

Public employees personal E-mails exempt from disclosure from FOIL
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

The Wisconsin Supreme Court held in Schill v. Wisconsin Rapids School District, 2010 WI 86 (July 16, 2010), that purely personal e-mails of public employees sent from workplace computers and e-mail accounts are protected from disclosure to a third party under the state Public Records Law. While the justices differed in whether such emails are even public records, a majority of the court determined that a public records custodian “should not release contents of emails that are purely personal and evince no violation of law or policy.”

This is a significant decision. Few businesses could operate today without the use of email. It is also likely that employees will sometimes use an employer's email system for personal use. Whether an email is “purely personal” will be based on a case-by-case determination, as the court makes clear that the contents of apparently personal e-mails could require disclosure if the email has some connection to a government function.

The decision involves only disclosure of personal email to third parties under the Public Records Law. The case does not involve the right of government employers to monitor, review or have access to the personal emails of public employees using the government email system.

Law review commentary on this important subject would be most welcome.

The Court’s complete opinion can be found at:
http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=52285
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Confidentiality of police records

Confidentiality of police records
Baez v City of New York, NYS Supreme Court, [Not selected for publication in the Official Reports]

A number of law enforcement agencies have procedures similar to those of the New York City Police Department Patrol Guide Section 118-9, which compels an officer to participate in an interview process coupled with the promise that the statement provided by the officer will not be used against him or her in any criminal proceeding. Characterized as GO-15 or IAD interviews, these NYPD statements are typically comprehensive and provide a substitute for a deposition.

In the Baez case New York State Supreme Court Justice McKeon set out the guidelines usually followed with respect to the release of such statements to the press and, or, to the public.

Justice McKeon said that the release of such records is governed by three statutes: Public Officers Law Section 87 (Freedom of Information Law or FOIL); Civil Rights Law Section 50-a (Right of Privacy for personnel records of police officers and others); and CPLR Section 3101 (Scope of Disclosure).

As to FOIL, Justice McKeon held that Section 87 allows access by any member of the public to governmental agency records, unless they are specifically exempted from disclosure by statute or constitute inter-agency or intra-agency materials, which are not inter alia final agency policy or determinations. He concluded that these types of records fall within that exemption from disclosure to the public under FOIL as predecisional interagency materials.

Civil Rights Law Section 50-a, said Justice McKeon, declares personnel records of police officers to be confidential material, not subject to disclosure without the express written consent of the officer or as mandated by lawful court order. It was noted, however, that the use of such records by a governmental entity, such as releasing summary of internal investigation of instances of police misconduct, is not precluded by Section 50-a because that use is unrelated to the purpose of the statute.

Justice McKeon next considered CPLR Section 3101, the discovery statute. This section, it was noted, provides that “[u]pon objection by a person entitled to assert the privilege, privileged matter shall not be obtainable.” The Court concluded that based on the protections provided by these statutes, “GO-15 statements and IAD records are considered confidential per statute unless they are released through consent or by lawful court order.” Justice McKeon also observed that “confidential” in Civil Rights Law Section 50-a is analogous to “privileged” within the meaning of CPLR Section 3101.

Justice McKeon also ruled that such statements are exempted from disclosure to the general public under the Freedom of Information Law, Public Officers’ Law Section 87.

The full opinion is available at:
http://nypublicpersonnellawarchives.blogspot.com/

PERB may elect to defer its consideration of unfair labor practice charge

PERB may elect to defer its consideration of unfair labor practice charge
PBA and Village of Ossining, 30 PERB 4711

PERB sometimes elects to defer considering unfair labor practice charges filed by an individual or an organization. It typically does so when there is some other procedure available that could address and resolve the issues that motivated the filing of the charge in the first instance. The Ossining PBA case provides an example of such a situation.

Ossining Chief of Police Joseph Burton “unilaterally changed the work schedule” of PBA unit members in an apparent effort to avoid paying holiday pay. Had the “natural rotation” of the work chart had not been altered, certain officers would have earned holiday pay.

The PBA protested the change and filed an unfair labor practice charge with PERB. PERB discovered that the PBA had also filed contract grievance concerning the matter, however.

The parties agreed to defer pressing the issue before PERB pending the resolution of the grievance.

PERB Administrative Law Judge Sandra M. Nathan observed that “it is appropriate to defer deciding whether the [Taylor Law] precludes the exercise of jurisdiction by PERB, pending the outcome of the grievance which has been filed.” She “conditionally dismissed” the PBA complaint.

What would be the result if the PBA had not already filed a grievance?

Assuming (1) that a contract grievance procedure was available, (2) that the issue appeared appropriate for submission as a contract grievance, and (3) that these facts were disclosed to the administrative law judge, the ALJ probably would have conditionally dismissed the complaint and directed the parties to first submit the matter for resolution through the grievance procedure.