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Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL
November 19, 2010
Employee organization may not rely of a FOIL request to obtain the names of charter school employees
Employee organization may not rely of a FOIL request to obtain the names of charter school employees
Matter of New York State United Teachers v Brighter Choice Charter School, 2010 NY Slip Op 08383, Decided on November 18, 2010, Court of Appeals
The New York State United Teachers (NYSUT) filed a Freedom of Information Law (FOIL) request with six Charter Schools* seeking, among other things, payroll records showing the full names, titles, corresponding salaries, and home addresses of all persons employed as teachers, instructors and faculty.**
The Charter Schools partially denied NYSUT's request, contending that full compliance would constitute an unwarranted invasion of personal privacy within the meaning of FOIL and “the commercial and fund-raising exemption of Public Officers Law §89(2)(b)(iii).”
Ultimately the issue presented to the Court of Appeals concerned the disclosure of the teachers' full names, NYSUT having abandoned its request for home address information.
The Court of Appeals said that “Charter schools are clearly subject to FOIL (see Education Law §2854[1][e]), meaning that they must maintain ‘a record setting forth the name, public office address, title and salary of every officer or employee,’ [and] … [t]here is a presumption that such records must be made ‘available for public inspection and copying’ … [although] an entity subject to FOIL may deny access to records*** that ‘if disclosed would constitute an unwarranted invasion of personal privacy,’ which, as relevant here, includes the ‘sale or release of lists of names and addresses if such lists would be used for commercial or fund-raising purposes’ (Public Officers Law §89 [2][b][iii]).”
The court, reversing the Appellate Division, denied that part of NYSUT’s petition seeking disclosure of the names of the teachers employed by the Charter Schools, explaining that ordering disclosure of the names would do nothing to further the purpose of FOIL, "which is to assist the public in formulating intelligent informed choices with respect to both the direction and scope of governmental activities."
“If anything,” said the court, "it is precisely because no governmental purpose is served by public disclosure" of this information that §87 2)(b)(iii)'s privacy exemption falls squarely within FOIL's statutory scheme.”
As NYSUT, the court concluded, seeks the teachers' names for contacting prospective members, it ruled that “although NYSUT certainly possesses a right to seek dues-paying members, it may not rely on FOIL to achieve that end.”
* Brighter Choice, Henry Johnson, Kipp Tech Valley, Albany Community, Albany Preparatory and Achievement Academy. None of the Charters Schools' teachers are members of a labor union.
** Subdivision 3(a) of §2859 of the State Education Law, in pertinent part, provides that “An employee of a charter school shall be deemed to be a public employee solely for purposes of article fourteen of the civil service law, [The Taylor Law] except for section two hundred twelve of such law, and for no other purposes ….” Education Law §2859 Subdivision (c-1) provides for the reasonable access to employees of a charter school "If employees of the charter school are not represented, .….” [§2859, Subdivision (b), applies to “The school employees of a charter school that has been converted from an existing public school,” while Section 2859, Subdivision (b-1), applies to “The employees of a charter school that is not a conversion from an existing public school …”]
*** The custodian of the records or documents requested pursuant to FOIL may elect, but is not required, to withhold those items that are otherwise within the ambit of the several exemptions permitted by FOIL otherwise consistent with law. For example, the release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality].
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08383.htm
NYPPL
Matter of New York State United Teachers v Brighter Choice Charter School, 2010 NY Slip Op 08383, Decided on November 18, 2010, Court of Appeals
The New York State United Teachers (NYSUT) filed a Freedom of Information Law (FOIL) request with six Charter Schools* seeking, among other things, payroll records showing the full names, titles, corresponding salaries, and home addresses of all persons employed as teachers, instructors and faculty.**
The Charter Schools partially denied NYSUT's request, contending that full compliance would constitute an unwarranted invasion of personal privacy within the meaning of FOIL and “the commercial and fund-raising exemption of Public Officers Law §89(2)(b)(iii).”
Ultimately the issue presented to the Court of Appeals concerned the disclosure of the teachers' full names, NYSUT having abandoned its request for home address information.
The Court of Appeals said that “Charter schools are clearly subject to FOIL (see Education Law §2854[1][e]), meaning that they must maintain ‘a record setting forth the name, public office address, title and salary of every officer or employee,’ [and] … [t]here is a presumption that such records must be made ‘available for public inspection and copying’ … [although] an entity subject to FOIL may deny access to records*** that ‘if disclosed would constitute an unwarranted invasion of personal privacy,’ which, as relevant here, includes the ‘sale or release of lists of names and addresses if such lists would be used for commercial or fund-raising purposes’ (Public Officers Law §89 [2][b][iii]).”
The court, reversing the Appellate Division, denied that part of NYSUT’s petition seeking disclosure of the names of the teachers employed by the Charter Schools, explaining that ordering disclosure of the names would do nothing to further the purpose of FOIL, "which is to assist the public in formulating intelligent informed choices with respect to both the direction and scope of governmental activities."
“If anything,” said the court, "it is precisely because no governmental purpose is served by public disclosure" of this information that §87 2)(b)(iii)'s privacy exemption falls squarely within FOIL's statutory scheme.”
As NYSUT, the court concluded, seeks the teachers' names for contacting prospective members, it ruled that “although NYSUT certainly possesses a right to seek dues-paying members, it may not rely on FOIL to achieve that end.”
* Brighter Choice, Henry Johnson, Kipp Tech Valley, Albany Community, Albany Preparatory and Achievement Academy. None of the Charters Schools' teachers are members of a labor union.
** Subdivision 3(a) of §2859 of the State Education Law, in pertinent part, provides that “An employee of a charter school shall be deemed to be a public employee solely for purposes of article fourteen of the civil service law, [The Taylor Law] except for section two hundred twelve of such law, and for no other purposes ….” Education Law §2859 Subdivision (c-1) provides for the reasonable access to employees of a charter school "If employees of the charter school are not represented, .….” [§2859, Subdivision (b), applies to “The school employees of a charter school that has been converted from an existing public school,” while Section 2859, Subdivision (b-1), applies to “The employees of a charter school that is not a conversion from an existing public school …”]
*** The custodian of the records or documents requested pursuant to FOIL may elect, but is not required, to withhold those items that are otherwise within the ambit of the several exemptions permitted by FOIL otherwise consistent with law. For example, the release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality].
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08383.htm
NYPPL
Individuals identified as “unknown petitioners” may not be named as plaintiffs in an Article 78 proceeding
Individuals identified as “unknown petitioners” may not be named as plaintiffs in an Article 78 proceeding
Matter of Westchester County Correction Officers Benevolent Assn. Inc. v County of Westchester, 29 Misc.3d 1219(A)
One of the issues in this CPLR Article 78 action was the “Naming of Unknown Petitioners” as plaintiffs by the Westchester County Correction Officers Benevolent Association.
County Court Judge Jeffrey A. Cohen agreed with Westchester County that the petition improperly names John Does "1" through "100" as Petitioners.
The court said that although CPLR 1024 provides for the naming of unknown parties as defendants in an action, it does not provide for the naming of unidentified Petitioners in an Article 78 proceeding.
The judge also faulted the Association for failing to come forward with any statutory authority for naming unknown Petitioners, merely asserting that “there are similarly situated individuals who are presently unknown.”*
In addition, the court commented that the Association failed to show that it had undertaken any efforts to determine the identities of the unidentified Petitioners and have failed to refute County’s evidence that documents in the Association’s possession reveal the identities of other correction officers similarly situated to the individual Petitioners.
Accordingly Judge Cohen dismissed “that branch of the motion to dismiss the petition with respect to the Petitioners named John Does ‘1’ through ‘100’ as motioned by the County.
* Judge Cohen indicated that he had conducted its own review of Article 78 and failed to find any authority for naming “unidentified Petitioners.”
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2008/2008_52719.htm
NYPPL
Matter of Westchester County Correction Officers Benevolent Assn. Inc. v County of Westchester, 29 Misc.3d 1219(A)
One of the issues in this CPLR Article 78 action was the “Naming of Unknown Petitioners” as plaintiffs by the Westchester County Correction Officers Benevolent Association.
County Court Judge Jeffrey A. Cohen agreed with Westchester County that the petition improperly names John Does "1" through "100" as Petitioners.
The court said that although CPLR 1024 provides for the naming of unknown parties as defendants in an action, it does not provide for the naming of unidentified Petitioners in an Article 78 proceeding.
The judge also faulted the Association for failing to come forward with any statutory authority for naming unknown Petitioners, merely asserting that “there are similarly situated individuals who are presently unknown.”*
In addition, the court commented that the Association failed to show that it had undertaken any efforts to determine the identities of the unidentified Petitioners and have failed to refute County’s evidence that documents in the Association’s possession reveal the identities of other correction officers similarly situated to the individual Petitioners.
Accordingly Judge Cohen dismissed “that branch of the motion to dismiss the petition with respect to the Petitioners named John Does ‘1’ through ‘100’ as motioned by the County.
* Judge Cohen indicated that he had conducted its own review of Article 78 and failed to find any authority for naming “unidentified Petitioners.”
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2008/2008_52719.htm
NYPPL
Employee terminated after being found guilty of falsifying his time records
Employee terminated after being found guilty of falsifying his time records
In the Application of Rodriguez, 258 AD2d 419
The Housing Authority terminated John Rodriguez after a disciplinary hearing officer found him guilty of claiming and obtaining overtime pay through the filing of false or misleading overtime records, including overtime pay for time spent commuting.
Rodriguez argued that because he was authorized to clock in and out at a place other than his work site, his claims for overtime were permitted under the Fair Labor Standards Act. The Appellate Division disagreed, stating that the agency’s imposing the “penalty of dismissal does not shock our sense of fairness given what was systematic dishonesty, misrepresentation and falsification of records” by Rodriguez.
NYPPL
In the Application of Rodriguez, 258 AD2d 419
The Housing Authority terminated John Rodriguez after a disciplinary hearing officer found him guilty of claiming and obtaining overtime pay through the filing of false or misleading overtime records, including overtime pay for time spent commuting.
Rodriguez argued that because he was authorized to clock in and out at a place other than his work site, his claims for overtime were permitted under the Fair Labor Standards Act. The Appellate Division disagreed, stating that the agency’s imposing the “penalty of dismissal does not shock our sense of fairness given what was systematic dishonesty, misrepresentation and falsification of records” by Rodriguez.
NYPPL
Tests applied by courts considering vacating an arbitration award
Tests applied by courts considering vacating an arbitration award
Recore v Chateaugay CSD, 256 AD2d 801, motion for leave to appeal dismissed, 93 NY2d 957
In Recore v Chateaugay Central School District, the Chateaugay district asked to have an arbitrator’s award vacated. The arbitrator had ruled that the district had violated a clause of its collective bargaining agreement with CSEA Local 1000 when it failed to appoint Deborah Recore, a teacher’s aide, to the position of kindergarten aide.
The contract clause involved provided that “[f]or the purposes of filling vacancies or new job openings ... [the district] shall consider both ... seniority and ... skills and abilities. Seniority shall be the determining factor when in the sole judgment of [the district] the affected applicant’s skills and abilities are equal.”
A State Supreme Court justice vacated the arbitrator’s award. The arbitrator erred by inserting the word “relatively” before “equal” in interpreting the contract provision.
This, the court said, meant that “the arbitrator failed to apply the language of the collective bargaining agreement” in resolving the grievance.
CSEA appealed. The Appellate Division decided that the award had defects that “render it irrational,” but did not use the same reasoning as the Supreme Court.
In its decision, the Appellate Division noted that the grounds for vacating an arbitration award are very limited. It said that an arbitration award will be vacated only where “it is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power.”
It ruled that “given the considerable discretion afforded arbitrators in interpreting contract language [an arbitrator’s insertion of the word relatively] was an insufficient basis to invalidate the award.”
The Appellate Division emphasized that broad powers are vested in an arbitrator. Unless there is a provision in the arbitration clause to the contrary, an arbitrator is not bound by principles of substantive law or the rules of evidence and “may do justice by making an award reflective of the spirit rather than the letter of the parties’ agreement.”
Accordingly, said the court, an arbitrator’s interpretation of the parties’ agreement “may disregard the apparent, even the plain, meaning of the words of the contract before him and still be impervious to challenge in the courts.”
The Appellate Division found other defects in the arbitration award. The court noted that there were two different grievances arbitrations filed by Recore against the district.
The first concerned Recore’s not being selected for one kindergarten aide vacancy and the second concerned Recore’s not being selected for a second kindergarten aide vacancy.
According to the decision, apparently the arbitrator who conducted the second arbitration, Michael Lewandowski, “based his disposition [of the grievance] on the outcome of the first grievance” decided by another arbitrator, Walter Donnaruma.
Donnaruma had ruled that the district should have “utilized seniority as the primary consideration” with respect to Recore’s application for the first vacancy filled by the district and remitted the grievance to the district for its reconsideration. Upon reconsideration, the district reaffirmed its original decision.
Lewandowski considered the grievance that was filed after Recore was not selected for the second vacancy that the district filled.
The Appellate Division said “there is no discussion [of Recore’s] application for the second vacancy which culminated in the filing of the grievance that actually was before arbitrator Lewandowski, nor the evidence adduced at the hearing with respect to [Recore’s] and the chosen candidate’s qualifications for the position.”
In other words, the court concluded that Lewandowski based his decision of the determinations made by Donnaruma in the first arbitration.
Affirming the vacating of Lewandowski’s award because of this procedural defect rather than for the reasons stated by the lower court regarding Lewandowski’s interpretation of the contract’s language, the Appellate Division said that “inasmuch as [Lewandowski’s] disposition [of the grievance] leaves the controversy unresolved, a rehearing should be ordered” by the Supreme Court.
NYPPL
Recore v Chateaugay CSD, 256 AD2d 801, motion for leave to appeal dismissed, 93 NY2d 957
In Recore v Chateaugay Central School District, the Chateaugay district asked to have an arbitrator’s award vacated. The arbitrator had ruled that the district had violated a clause of its collective bargaining agreement with CSEA Local 1000 when it failed to appoint Deborah Recore, a teacher’s aide, to the position of kindergarten aide.
The contract clause involved provided that “[f]or the purposes of filling vacancies or new job openings ... [the district] shall consider both ... seniority and ... skills and abilities. Seniority shall be the determining factor when in the sole judgment of [the district] the affected applicant’s skills and abilities are equal.”
A State Supreme Court justice vacated the arbitrator’s award. The arbitrator erred by inserting the word “relatively” before “equal” in interpreting the contract provision.
This, the court said, meant that “the arbitrator failed to apply the language of the collective bargaining agreement” in resolving the grievance.
CSEA appealed. The Appellate Division decided that the award had defects that “render it irrational,” but did not use the same reasoning as the Supreme Court.
In its decision, the Appellate Division noted that the grounds for vacating an arbitration award are very limited. It said that an arbitration award will be vacated only where “it is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power.”
It ruled that “given the considerable discretion afforded arbitrators in interpreting contract language [an arbitrator’s insertion of the word relatively] was an insufficient basis to invalidate the award.”
The Appellate Division emphasized that broad powers are vested in an arbitrator. Unless there is a provision in the arbitration clause to the contrary, an arbitrator is not bound by principles of substantive law or the rules of evidence and “may do justice by making an award reflective of the spirit rather than the letter of the parties’ agreement.”
Accordingly, said the court, an arbitrator’s interpretation of the parties’ agreement “may disregard the apparent, even the plain, meaning of the words of the contract before him and still be impervious to challenge in the courts.”
The Appellate Division found other defects in the arbitration award. The court noted that there were two different grievances arbitrations filed by Recore against the district.
The first concerned Recore’s not being selected for one kindergarten aide vacancy and the second concerned Recore’s not being selected for a second kindergarten aide vacancy.
According to the decision, apparently the arbitrator who conducted the second arbitration, Michael Lewandowski, “based his disposition [of the grievance] on the outcome of the first grievance” decided by another arbitrator, Walter Donnaruma.
Donnaruma had ruled that the district should have “utilized seniority as the primary consideration” with respect to Recore’s application for the first vacancy filled by the district and remitted the grievance to the district for its reconsideration. Upon reconsideration, the district reaffirmed its original decision.
Lewandowski considered the grievance that was filed after Recore was not selected for the second vacancy that the district filled.
The Appellate Division said “there is no discussion [of Recore’s] application for the second vacancy which culminated in the filing of the grievance that actually was before arbitrator Lewandowski, nor the evidence adduced at the hearing with respect to [Recore’s] and the chosen candidate’s qualifications for the position.”
In other words, the court concluded that Lewandowski based his decision of the determinations made by Donnaruma in the first arbitration.
Affirming the vacating of Lewandowski’s award because of this procedural defect rather than for the reasons stated by the lower court regarding Lewandowski’s interpretation of the contract’s language, the Appellate Division said that “inasmuch as [Lewandowski’s] disposition [of the grievance] leaves the controversy unresolved, a rehearing should be ordered” by the Supreme Court.
NYPPL
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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
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