Employee charged with “computer trespass” for allegedly tampering with department’s computer records

Employee charged with “computer trespass” for allegedly tampering with department’s computer records
Saunders v Washington County, 255 AD2d 788

After announcing that she was resigning her from position as payroll clerk with the Washington County Sheriff’s Department, Mary Lou Saunders told a co-worker, Joanne Murone, she had deleted a budget report from the computer and planned on deleting other files.

Murone reported Saunders’ statement to her superiors and Saunders’ computer access code was deactivated the same day - July 22, 1992.

On July 23, 1992, a current purchase order list could not be retrieved from the computer. It was then discovered that between 9:30 a.m. and 9:42 a.m. “someone had accessed the computer from the communications center using Murone’s access code and deleted over 100 files.” When questioned by the Sheriff, Saunders admitted that she had used Murone’s access code without permission to delete the files, claiming that “she did not intentionally delete current files.”

During a subsequent investigation by the State Police, Saunders “indicated that she had been the subject of harassment at work and readily acknowledged that, after being denied access to the computer system, she used Murone’s code to delete files in an ‘attempt to show the department the value of [her] services.’”

Saunders was arrested and charged with a felony count of “computer trespass” [Penal Law Section 156.10(2)] and a misdemeanor count of tampering with public records ... [Penal Law Section 175.20]. The felony charge was reduced to misdemeanor.

After a jury acquitted Saunders of all charges, she sued the county, alleging “false arrest, malicious prosecution and defamation.” A State Supreme Court justice granted the county’s motion for summary judgment, dismissing Saunders’ petition.

With respect to Saunders’ allegations of false arrest and malicious prosecution, the Appellate Division affirmed the lower court’s dismissal of her complaint, indicating that “the unrefuted evidence in the record, including [Saunders’] own admissions and the statements of her co-workers, supports a finding that a reasonable person would have believed that [Saunders] had committed the crimes for which she was arrested.”

As to Saunders’ defamation claims, which was based on the Sheriff’s Department’s issuing a press release reporting her arrest, the Appellate Division pointed out that “truth constitutes a complete defense to such a claim.”

Since there was no substantive factual dispute that all the statements contained in the press release were true, the Appellate Division held that Saunders’ defamation cause of action was also properly dismissed by the lower court.
NYPPL

Employee denied unemployment insurance benefits following termination after threatening her supervisor

Employee denied unemployment insurance benefits following termination after threatening her supervisor
Tracy v Comm. of Labor, App. Div., 256 AD2d 800

In this age of voice mail and e-mail, it is relatively easy for an unhappy employee to leave a message for a supervisor and avoid a direct confrontation. As the Tracy case indicates, however, leaving a “vulgar and threatening message” on a superior’s voice mail will be treated as though the employee had made the offending statements in the supervisor’s presence.

Pamela A. Tracy was apparently upset about the manner in which management handled her complaints concerning a co-worker’s conduct. She left a “vulgar and threatening” message on her supervisor’s voice mail. As a result she was fired. The Unemployment Insurance Appeals Board ruled that she was disqualified from receiving benefits because her employment was terminated due to misconduct.”

The Appellate Division sustained the board’s decision. It said that it was “well settled that the use of vulgar language and disrespectful conduct towards supervisors constitutes disqualifying misconduct.”
NYPPL

Payments for superintendent’s doctorate studies by school district found lawful

Payments for superintendent’s doctorate studies by school district found lawful
Decisions of the Commissioner of Education, 14032

Taxpayer David Shufelt complained that the Board of Education of Webutuck Central School District in Dutchess County “authorized payments to district employees without formal resolution or public vote.”

Among the payments challenged by Shufelt was an “educational allowance” supporting the superintendent’s studies towards her doctorate degree. The Commissioner of Education dismissed Shufelt’s appeal as untimely but nevertheless commented that:

The superintendent’s contract clearly allowed for the board to pay her an educational allowance. [Shufelt] has failed to demonstrate that this benefit was in any way improper.
NYPPL

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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

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