Criminal investigations and the Taylor law

Criminal investigations and the Taylor law
New York City v Uniformed Fire Officers Asso., 95 NY2d 273

With increasing frequency, procedures addressing employee rights in the course of an employer-initiated investigation are being included in Taylor Law agreements. Typically disputes involving alleged violations of such negotiated procedures are to be resolved under the relevant contract arbitration procedure.

However, an investigation of employee conduct may be conducted by an outside independent agency. If the outside agency uses a procedure that the employee organization claims violates the provisions set out collective bargaining agreement can the union treat the situation as a contract violation and invoke the contract grievance procedure? Stated another way, does the investigation provisions of a collective bargaining procedure trump the procedures adopted by an outside investigatory body?

This was the major issue addressed by the Court of Appeals in the Fire Officers Association case. The case arose after New York City’s Department of Investigation [DOI] issued subpoenas to several firefighters as part of several criminal investigations it was conducting.*

Local 854, referring to provisions in a city-wide Taylor Law contract setting out procedures to be followed in the event of an investigation of an employee, complained that the procedures used by the DOI did not comply with the procedures set out in the agreement. Alleging that DOI’s procedures violated the contract’s employee rights Article, it demanded arbitration.

The City objected but the New York City Board of Collective Bargaining [BCB] issued a determination ruling that the dispute should be submitted to arbitration under the contract. The City next sued, seeking to stay the arbitration and annul the BCB ruling. The basic arguments advanced by the City:

1. The City never agreed to arbitrate the procedures used by the DOI in conducting its criminal investigations;

2. A collective bargaining agreement cannot, as a matter of public policy, supplant or impair DOI’s investigation; and

3. The grievances challenging DOI’s procedures are not arbitrable as a matter of strong public policy.

The Court of Appeals said that the public policy issue concerned DOI’s ability to conduct criminal investigations. The court initially noted that it has recognized that “[p]ublic policy whether derived from, and whether explicit or implicit in statute or decisional law, or in neither, may restrict the freedom to arbitrate,” citing Susquehanna Valley School District v Susquehanna Valley Teachers Association, 37 NY2d 614.

In this instance the court concluded that considering the statutory and decisional law concerning the DOI and its purpose and its powers, a strong public policy bars arbitrating the grievance. In the words of the court, [t]he City (and its residents) has a significant interest in ensuring that the inner workings of the machinery of public service are honest and free of corruption. We conclude that this public policy restricts the freedom to arbitrate under the circumstances presented here.

The court’s rationale: allowing an arbitrator to grant a city employee or a union the ability to restrict the DOI’s investigatory procedures by invoking the employee rights provisions of a collective bargaining agreement would amount to an impermissible delegation of the broad authority of the City to investigate its internal affairs.

The Court of Appeals, by way of illustration, observed that “... a board of education may not surrender its ultimate responsibility for making tenure decisions or restricting its exclusive right to terminate probationary teacher appointments and thus such the denial of tenure is not subject to grievance arbitration.”

In contrast, however, the court distinguished the granting of tenure by an arbitrator to his or her enforcing bargained-for procedural steps preliminary to the board’s final action to grant or withhold tenure. While denying tenure is not arbitrable, alleged violations of procedures to be followed in determining whether to grant or deny tenure are arbitrable.

The court also noted that there are other situations in which no arbitration remedy could be granted without violating public policy. To illustrate this point the court cited Blackburne v Governor’s Office of Employee Relations, 87 NY2d 660).

In Blackburne, an employee, who had violated the Federal Hatch Act, claimed that he was terminated in violation of the procedural guarantees found in the relevant Taylor Agreement.

The Court of Appeals decided that the arbitrator could not mandate compliance with the collective bargaining agreement’s procedural guarantees concerning employee termination without subjecting the State to the loss of Federal funds because of Blackburne’s Hatch Act violation. To do so, said the court, would constitute an impermissible delegation of the State’s sovereign authority.

The general rule set out by the court: Where a court examines an arbitration agreement or an award and concludes that the granting of any relief would violate public policy, courts may intervene and bar arbitration.

In contrast to the situation in the Susquehanna Valley School District case, where the issue concerned the compliance with procedural steps leading to a tenure determination, here, said the court, granting of any relief under the procedural protections of the Taylor Law contract would not only impinge on DOI’s ability to conduct a criminal investigation, but would add another layer of process, decision-making and potential conflict. Thus, public policy considerations preclude referring the matter to arbitration in this instance.

Declining to defer to BCB’s interpretation of the City’s collective bargaining law, the Court of Appeals ruled that the demand for arbitration must be permanently stayed.

* One such investigation, for example, concerned an alleged scam attempted by a firefighter to obtain greater pension benefits by fraudulently claiming that he sustained a disabling injury in the line of duty. The scheme allegedly involved one firefighter calling in a false alarm to afford the injured firefighter the opportunity to claim that his injury occurred in responding to the alarm. Among those firefighters interviewed were members of the Uniformed Fire Officers Association, Local 854 [Local 854].

Employee serving a disciplinary probationary period may be dismissed prior to the expiration of the probationary period without a hearing

Employee serving a disciplinary probationary period may be dismissed prior to the expiration of the probationary period without a hearing
Matter of Bifolco v Kelly, 2010 NY Slip Op 09335, decided on December 16, 2010, Appellate Division, First Department

New York City Police Commissioner Raymond W. Kelly terminated NYC Police Officer Michael Bifolco’s employment while Bifolco was serving a disciplinary probationary period. Bifolco sued seeking reinstatement to his former position.

The Appellate Division affirmed Supreme Court’s dismissal of Bifolco’s petition, noting that the incidents leading to Bifolco’s dismissal well within his disciplinary probationary period, during which time the Commissioner could terminate him without a hearing.

As the Appellate Division said in Witherspoon v Horn, 19 AD3d 250, “It is well settled that a probationary employee may be discharged without a hearing or statement of reasons, for any reason or no reason at all, in the absence of a showing that his or her dismissal was [made] in bad faith, [was] for a constitutionally impermissible purpose or [was] in violation of the law.”

Further, the former employee’s carries the burden of proof that the appointing authority’s action was unlawful or made in bad faith.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09335.htm

Compulsory interest arbitration

Compulsory interest arbitration
Matter of White Plains and White Plains PBA, 33 PERB 4588

Section 209.4 of the Civil Service Law provides for resolving impasses in collective negotiations between a public employer and an employee organization representing police or fire personnel through arbitration. Not all matters that have gone to impasse may be resolved be referral of the Section 209.4 panel, as the White Plains determination by PERB’s Director of Public Employment Practices and Representation demonstrates.

The White Plains PBA’s collective bargaining proposals included grievance procedures that were to be followed in connection with internal investigations.

In addition to providing for the right to representation during interrogation, the individual was to be advised on the nature of the investigation prior to interrogation and allowed to make notes if he or she was the subject of a criminal investigation [Proposal 8(C)]. Proposal 8(F) provided that [i]f a Police Officer is “under arrest or if such officer is a suspect or the target of a criminal investigation, the officer shall be given MIRANDA warnings* and shall have the opportunity to decline answering any questions.”

White Plains filed an improper practice charge with PERB in which it argued that the PBA had filed a petition for compulsory interest arbitration of its grievance procedure demand and on other matters that were nonmandatory subjects of collective bargaining. In addition to its objection to negotiating the grievance item, White Plains objected to arbitrating to PBA proposals providing that:

1. No Employee shall be denied any overtime [Proposal 12].

2. ... employees on maternity leave in excess of 60 calendar days shall continue to accrue vacation time [Proposal 13].

A few weeks later the PBA filed an improper practice charge with PERB alleging that the City’s answer to its petition for compulsory interest arbitration included a proposal concerning a nonmandatory subject of negotiations.

Toomey found that Proposals 8(C) and 8(F) were nonmandatory subjects of collective bargaining as they addressed procedures to be followed when a unit member was the subject of a criminal investigation.

Although there were other elements set out in Proposal 8 that clearly were mandatory subjects of collective bargaining under the Taylor Law, they did not survive for the purposes of compulsory interest arbitration. Why not? Because, ruled Toomey, Proposal 8 was presented as a single package, it must be found to be nonmandatory in its entirety based on the nonmandatory aspect of some of its parts.

Toomey also found that Proposal 12 was not a mandatory subject of collective bargaining. Toomey explained that in contrast to constituting a demand for overtime compensation, its purpose was to allow employees to work overtime on demand.

As to Proposal 13, Toomey deemed it unlawful and thus not subject to collective bargaining as it provided a special benefit in connection with maternity not available to other employees on paid or unpaid leaves. Toomey, citing School District 6 v NYSHRB, 35 NY2d 371, said that such a personnel policy, even if the product of negotiations under [the Taylor Law] would violate the State’s Human Rights Law and is therefore a prohibited subject of negotiations.

* See Miranda v Arizona, 384 US 436

Conflict of interest

Conflict of interest
Peterson v Corbin, 275 AD2d 35*

Gregory P. Peterson, the President of the Nassau OTB, sued Roger H. Corbin in an effort to prevent Corbin, a member of the Nassau County legislature, from voting on any appointment to the board of directors of the Nassau OTB.

The reason advanced by Peterson in support of his petition: Corbin was employed as a branch manager for the New York City Off-Track Betting Corporation (NYC-OTB) and was a member of Local 858 of the International Brotherhood of Teamsters, pointing out that Local 858 represented all of the employees of the Nassau OTB and the branch managers of NYC-OTB. This employment and union membership, alleged Peterson, constituted a conflict of interest with respect to Corbin’s performing his duties as a Nassau County Legislator.

A Supreme Court judge issued a preliminary injunction preventing Corbin from voting on OTB appointments based on a finding of the existence of an appearance of impropriety. Corbin appealed. The Appellate Division, Second Department, reversed the lower court’s determination.

Peterson, said the Appellate Division, was required to demonstrate a likelihood of success on the merits by making a prima facie showing, at least by affidavits, if not by testimony, of conflicts of interest. This, said the court, he was unable to do.

According to the Appellate Division, Corbin’s employment as a NYC-OTB branch manager and his position as a member of the Nassau County Legislature pose no conflict since there was nothing in the record indicating the existence of any dealings between NYC-OTB and the Nassau County Legislature.

As to Corbin’s membership in Local 858, the court pointed out that according to the record, he is not an officer or member of the negotiating team of that union.

The court noted that while Local 858 also represents the Nassau OTB employees, there is no connection between the contracts reached by Local 858 and the two OTBs and the record shows that there are two negotiating units within Local 858; one dealing with NYC-OTB branch managers and the other dealing with all the Nassau OTB employees.

The Appellate Division also commented that “even if we assume, without evidence, that Peterson will not be reappointed to the board of directors of the Nassau OTB as a result of Corbin’s decisive vote, this could not be considered irreparable harm [and] Peterson does not have a protected property interest in his position as a director of the Nassau OTB.”

Balancing Peterson’s failure to demonstrate any potential harm in the absence of a preliminary injunction against the right of Corbin’s constituents to be represented in the vote for OTB directors, the court concluded that the preliminary injunction had to be vacated.

* The Court of Appeals dismissed the appeal on its own motion after concluding that the Appellate Division’s order denying the preliminary injunction did not necessarily affect the final judgment of Supreme Court, as required by CPLR 5601 (d), [95 NY2d 919].

Modifying a disciplinary penalty

Modifying a disciplinary penalty
Brown v Penn Yan CSD, 275 AD2d 931

Knight v BOCES, App. Div., Fourth Dept., 275 AD2d 1038

Courts are frequently requested to review disciplinary penalties imposed on employees found guilty in administrative disciplinary procedures. The Brown and Knight decisions by the Appellate Division, Fourth Department, involved just such reviews.

The Brown decision:

The Brown decision illustrates the application of the so-called Pell doctrine [Pell v Board of Education, 34 NY2D 222] which bars the imposition of a disciplinary penalty that the court determines is disproportionate to the offense or offenses for which the employee was found guilty.

Penn Yan Central School District custodian James Brown was found guilty of a number of the disciplinary charges filed against him. Specifically, Brown was found guilty of:

1. failing to clean his assigned rooms adequately;

2. sweeping orange peels from the side of the cafeteria for which he was responsible to the side for which a co-worker was responsible; and

3. leaving work 20 minutes early.

The penalty imposed by the district: termination of employment. Brown appealed, claiming that the penalty of dismissal was unlawfully harsh.

The Appellate Division agreed, commenting that while there was substantial evidence in the record to support a finding of guilt, the penalty of dismissal was so disproportionate to the offense as to shock one’s sense of fairness.

One element used by the Appellate Division in justifying its mitigating the imposition of dismissal as a penalty was that Brown was found guilty of charges involving a single occurrence on three separate dates.

Another factor, said the court, was that [e]ven considering the prior incidents of similar misconduct for which [Brown] had received warnings, terminating Brown, a 12-year employee, was an excessive penalty within the meaning of the Pell doctrine.

Although a court would usually remand such a case to the appointing authority for its determination of a lesser penalty, here the Appellate Division decided to exercise its discretion and set the penalty itself. The penalty it imposed: suspension without pay or benefits for one year -- retroactive to October 29, 1999.

The Knight decision:

The BOCES terminated Kathryn Knight, a certified occupational therapy assistant, after she was found her guilty of abusing sick and personal leave and submitting a false claim for reimbursement.

The Appellate Division sustained Knight’s dismissal, holding that [a] high degree of deference is to be accorded to an agency’s determination of the appropriate penalty to be imposed.

As to the application of the Pell Doctrine, the court commented that it cannot be said here that the penalty of termination, when considered in light of all of the circumstances of this case, is so disproportionate to the offense as to be shocking to one’s sense of fairness.

Some other considerations: While a court may sustain the disciplinary penalty imposed, remand the case to the appointing authority to impose a new, and lesser, penalty, or impose a lesser penalty as a matter of discretion, may it provide for the imposition of a harsher penalty?

Clearly there are precedents for the appointing officer to impose a harsher penalty than the one recommended by a disciplinary hearing officer. Russo v Wantagh UFSD, App. Div., No. 98-06421, decided March 22, 1999 is an example of such an action.

Although Russo protested his dismissal on the grounds that the hearing officer had recommended a lesser penalty, the Appellate Division ruled that under the circumstances of this case, the termination of the petitioner’s employment was not so disproportionate to the offense as to shock one’s sense of fairness, again quoting the Pell standard.

Similarly, the Commissioner of Education occasionally substituted his judgment for that of a disciplinary panel in considering appeals from disciplinary actions taken under Section 3020-a prior to its amendment in 1994.

For example, in Shurgin v Ambach, 56 NY2d 700, the Court of Appeals affirmed the authority of the Commissioner to decide that a reprimand was a disproportionately lenient penalty for a very serious offense.

The hearing panel in Shurgin had imposed a reprimand as the penalty for the teacher’s poor judgment in showing his class pornographic films. The district appealed and the Commissioner authorized the district to terminate Shurgin.

As to the authority of a court to direct the imposition of a harsher penalty, in Ford v CSEA, 94 AD2d 262, the Appellate Division decided that it could remand the case for such a purpose. Its theory: under the circumstances a lesser penalty constituted a violation of a strong public policy and thus was irrational.

The issue arose in connection with disciplinary action taken against an employee of the Department of Mental Hygiene. The charge filed against the employee: having sexual relations with a patient.

The arbitrator found the employee guilty. Although the agency had sought to have the employee dismissed, the arbitrator imposed the penalty of a two-month suspension without pay because the patient consented to the sexual act that the arbitrator characterized as minimal patient abuse.

The agency head (Ford) appealed in an effort to have the arbitrator’s award vacated and the penalty of dismissal imposed.

The Appellate Division, concluding that the arbitrator exceeded his powers and made an irrational award in violation of ‘a public policy which is beyond waiver’ (by the State), remanded the matter for adjudication by a different arbitrator.

The court noted that “mental patients are incapable of “consent” in (this) context ....” The arbitrator’s determination of physical abuse cannot be passed off lightly with an adjective such as minimal. It found such a characterization by the arbitrator making the original determination appalling and the arbitrator’s refusal to impose the penalty of termination plainly irrational.

Another basis for vacating an arbitrator’s or hearing officer’s determination is a finding that the determination is pre-empted by a court ruling. For example, if an employee is found guilty in a court of law of a crime such as stealing, and disciplinary charges are subsequently filed based on that same incident of theft, the hearing officer or the arbitrator may not find the employee not guilty of stealing.

As the court ruled in Kelly v Levin, 440 NY2d 424, acquitting an employee in an administrative disciplinary action is a reversible error if the individual previously was found guilty of a criminal act based on the same allegations.

The Kelly case involved a school business administrator against whom Section 3020-a charges alleging larcenies of school funds and bringing discredit upon the school district. The disciplinary panel the administrator guilty of the charge of bringing discredit upon the district, but not guilty of the larceny charges.

The Court held that the fact that the administrator had committed two larcenies of school property was conclusively established under the doctrine of collateral estoppel. Finding that hearing panel’s decision was based on a finding of guilt of the bringing discredit charge only, the matter was remitted to the panel for reconsideration of the appropriate penalty to be imposed in consideration of being found guilty of the larceny charges as well.

The reason: the standard of proof required in a criminal proceeding is greater than that in an administrative disciplinary proceeding. In a criminal case, the standard is proof beyond a reasonable doubt; in a Section 3020-a disciplinary action the standard is preponderance of the evidence, a significantly lower threshold upon which to base a finding of guilt.

However, what happens if the criminal conviction is subsequently reversed. In Beard v Newburgh, 259 AD2d 613, the court said that since the disciplinary arbitrator gave collateral estoppel effect to Beard’s conviction in the criminal action, the disciplinary award had to be vacated. Why so? Because, the court explained, the arbitration award was based exclusively on a criminal conviction that was reversed on appeal. The Appellate Division court directed that a new disciplinary hearing be conducted by the arbitrator.

Readers of NYPPL use a variety of operating systems to access its content

Readers of NYPPL use a variety of operating systems to access its content
Reported by Google

NYPER trivia for December 2010.

Google Statistics reports NYPPL readers used the following means to access this LawBlog.

Windows 47,266

Macintosh 4,133

Other Unix 3,706

iPhone 339

BlackBerry 295

Linux 250

iPad 177

iPod 69

Nokia 54

Palm 38

Liquidation of employee leave credits upon separation

Liquidation of employee leave credits upon separation
Source: A question of general interest submitted by a NYPPL reader

A NYPPL reader asks: "Should an employee be separated from his or her public employment what happens to the employees leave accruals? Is the municipality allowed to keep the money? Where does the money go?”

The most common types of leave accruals or credits that may be credited to an individual at the time of his or her separation are 1. Vacation Leave accruals, 2. Sick Leave accruals, 3. Personnel Leave credits; 4. Overtime credit, and 5. Compensatory leave credit.
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The most common types of personnel transactions in which the question may arise are in the context of a resignation, retirement or death or upon termination for cause [see, generally, 4 NYCRR 23.1].

Less common are situations where the liquidation or use of leave credits is coupled with a leave of absence [see, for example, Civil Service Law §§71 and 72], a transfer [see 4 NYCRR 23.3], absence for military leave [see 4 NYCRR 23.2], a layoff, or a jurisdictional reclassification of an individual’s position [see, for example, Education Law §355.10(c).

The New York State Civil Service Commission's Rules for the Classified Service, 4 NYCRR 30.1, provides for the payment of certain leave accruals upon separation. Many local employees are subject to similar rules or regulations promulgated by a local civil service commission or set out in a collective bargaining agreement.

In addition, there may be provisions set out in an “employment contract” between a public employer and an individual that may be controlling as could be the case with respect to a contract between a school district and its school superintendent.

The State Commission's Rules basically provide that at the time of separation from State service, the employee or the employee’s estate or beneficiary, as the case may be, shall be paid in cash for unused vacation credits not in excess of 30 days. The Commission’s Rules, however, do not provide for the payment of unused sick leave* or personal leave credits [see 4 NYCRR 21.5(b)].

However, the Rules also set out two significant exceptions to such liquidation:

1. In the case of resignation, the appointing authority may require, as a condition for receiving payment for accrued but unused annual leave credit, that employee provide written notice of his or her resignation at least two weeks prior to the last day of work; and

2. No employee [subject to the Commission's Rules] who is removed from State service as a result of disciplinary action, or who resigns after being served with charges of incompetency or misconduct shall be entitled to compensation for vacation credits.

It should be noted that both these limitations apply only to "vacation accruals."

“Overtime accruals" and “compensatory time credit” are distinguished from vacation accruals, as they are provided as a result of work performed. As such accruals and credits are provided in lieu of cash compensation, they constitute "earnings" or "salary" for actual service rather than a fringe benefit such as "vacation leave credits" and up to 30 days of each may be liquidated in cash upon separation [see 4 NYCRR 23.3].

Under certain circumstances, however, it appears that the payment of vacation accruals will be madatory. For example, in Clift v City of Syracuse, 45 AD2d 596, the Appellate Division ruled that if an employee was refused permission to use his or her leave credits and was subsequently terminated, the individual was entitled to payment for his or her unused vacation accruals.

Another decision, Degnan v Constantine, 189 AD2d 423, illustrates the strict construction courts generally give to regulations involving the forfeiture of leave credits.

Degnan, a State Trooper, was eligible to retire when charges of misconduct were filed against him. In order to avoid a disciplinary hearing he "accelerated his original date of retirement."

After he retired Degnan asked for payment for the 30 days of unused vacation leave he had to his credit at the time of his retirement. State Police rejected his request, advising him that because he had resigned from service "in order to evade the charges pending" against him at the time his leave credits were, in effect, forfeited.

The Appellate Division ruled that "the clear and unambiguous language of [Division's] regulations requires that [Degnan] be compensated for up to 30 days of accrued annual leave...." as Degnan, faced with disciplinary charges, did not resign -- he retired instead.

The Appellate Division said that "it is axiomatic that an agency is bound by the language of its own regulations and cannot construe it in such a manner that the plain language on the face of the regulation is rendered meaningless."

In the words of the Appellate Division, "obviously had [the Division of State Police] intended that accrued vacation time be withheld in the case where a member retires during the pendency of disciplinary charges, the regulations would have so provided."

Another element to consider: the impact the Taylor Law. Does the relevant collective bargaining agreement set out the terms and conditions for the liquidation of leave credits upon separation? Could the liquidation of leave credits upon separation be deemed a "past practice" within the meaning of the Taylor Law? The answer is yes to both!

PERB has ruled that the liquidation of leave credits is a mandatory subject of collective bargaining and thus a unilateral changing of a past practice concerning the liquidation of leave credits in cash constituted an unfair labor practice [Center Moriches Administrators Association and Center Moriches UFSD, 28 PERB 3031].

Recent court rulings in which the payment of accrued leave credits upon separation was an issue include:

Boakye-Yiadom v Roosevelt Union Free School Dist., 25 Misc 3d 1226(A)
The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2007/2007_52657.htm;

Garrigan v Incorporated Vil. of Malverne, 59 AD3d 662
The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2009/2009_01441.htm;

Hauptman v Village of Elmira Hgts., 23 Misc 3d 439
The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2004/2004_24572.htm;

Matter of Curra v New York State Teachers' Retirement Sys., 18 Misc 3d 1144(A)
The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2005/2005_52354.htm; and

Matter of Palandra v New York State Teachers' Retirement Sys., 27 Misc 3d 1214(A)
The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2010/2010_50735.htm .

* Employees of the State as an employer retiring with unused sick leave credits may have the actuarial value of such credits applied towards the payment of contributions otherwise required for their NYSHIP health insurance premiums upon retirement [see Civil Service Law §167.4] and, in addition, may receive additional “years of service” credit in determining their retirement allowance [see Retirement and Social Security Law §41.3.j].

Governor Paterson signs Executive Order on Record Keeping Procedures and Policies

Governor Paterson signs Executive Order on Record Keeping Procedures and Policies
Source: Office of the Governor

On December 14, 2010 Governor David A. Paterson issued an Executive Order addressing the development and implementation of a records management policy for the Executive Chamber, including an archives retention schedule.

The Governor signed the Executive Order, 9 NYCRR 7.42, following his veto of S.6846/A.9928.

The Executive Order requires that a retention schedule be promulgated and made public. The schedule categorizes documents prepared in the Executive Chamber and sets forth a period for their retention and ultimate disposition. All records of historic and governmental significance will be preserved, published and made publicly accessible.*

A member of the Executive Chamber Counsel's Office is designated as the Records Retention Officer and will be responsible for coordinating Executive Chamber record retention activities.

The Governor vetoed S.6846/A.9928, also known as the Archives Bill. In his veto message, the Governor acknowledged the sponsors' efforts, but noted that the bill did not provide adequate protection for valued, centuries old governmental privileges that are indispensable to ensure unfettered, candid advice. The Governor also said the bill would have imposed significant and costly burdens on the Executive Chamber and would tip the balance of power between the Legislature and Executive by allowing the former immediate access to executive records, without imposing any comparable transparency requirements upon itself.

* The Counsel to the Governor will negotiate an agreement for storage of the information, and the circumstances on which it would be made available to the public. Executive Chamber records created during the Paterson Administration will be donated to Cornell University.