Duplicative FOIL requests

Duplicative FOIL requests
Badalamenti v Office of Dist. Attorney Nassau County, 2011 NY Slip Op 08588, Appellate Division, Second Department

The Nassau County District Attorney's Office rejected the FOIL request submitted by Anthony Badalamenti seeking the disclosure of certain telephone numbers and recordings of certain telephone calls.

In the proceeding before Supreme Court the District Attorney's Office had established that it had earlier provided Badalamenti with the information or records he sought pursuant to an earlier FOIL request or hat it did not have the records he demanded in its possession.

The Appellate Division held that FOIL does not require the custodian of the public records demanded, here the District Attorney’s Office, to furnish records it does not possess.

The court also ruled that Badalamenti was not entitled to additional copies of those records he sought that had previously be provided to him “unless he can show that the copies are no longer in his or his attorney's possession, a showing he failed to make.”

Access to documents under FOIL limited

Access to documents under FOIL limited

Sinicropi v. Nassau County, 76 AD2d 832

Sinicropi was denied access to certain records related to an administrative disciplinary proceeding.

Citing the McAulay decision (48 NY2d 659), the court refused to order the employer to give the Sinicropi the records he sought, which records the court described as intra-agency memoranda concerning an employee, notes and communications made in preparation of the disciplinary hearing and the transcript of the hearing.

The court viewed this materials as “pre-decisional intra-agency memoranda that are not reflective of final agency policy or determinations” and are therefore exempt from disclosure under the Freedom of Information Law.

Sinicropi had been given a copy of the charges preferred against an employee, the employee's answer to the charges, the "bill of particulars" of the charges and the stipulation of settlement of the disciplinary action. The Court held that further disclosure would be unnecessary and improper.

Human Rights Appeals Board review powers limited

Human Rights Appeals Board review powers limited

CBS v. State Human Rights Appeals Board, 76 AD2d 813

The Division of Human Rights had dismissed the complaint of discrimination filed by a former employee of CBS for lack of probable cause.

On appeal the Human Rights Appeals Board reversed the Division’s determination after making its own findings as to seniority and other matters concerning the complaint.

The Appellate Division held that in so doing the Appeals Board had exceeded its authority, substituting its own factual findings for that of the Division.

The Board’s function, said the court, is to determine whether the Division’s decision was based on substantial evidence or not.

The Appellate Division then reinstated the Division’s determination, stating that “in reversing [the Division] the Board must have been saying either that there was not substantial evidence or else that the ruling was arbitrary and capricious and an unwarranted exercise of discretion. There was no basis for this determination ... the Division’s expertise in evaluating discrimination claims may not be lightly disregarded.”

Annuities may be processed through one agent

Annuities may be processed through one agent

Op St Comp 80-121

A school district which purchases annuities for its employees from a number of insurance companies may make arrangements to have all payments made to one company and have that company make the distribution to the other insurance companies involved.

Such an arrangement is expected to reduce an employer’s accounting costs that may be significant when it must process a large number of accounts on behalf of its employees. The most common situation is the transmittal of funds in connection with tax-deferred annuities purchased on behalf of employees.

Criminal record results in removal from state job

Criminal record results in removal from state job

Disciplinary arbitration award

An arbitrator held that the State acted properly when it removed an employee form his position upon discovery that he had failed to report his earlier conviction on the application form for his job.

The employee had indicated that he had never been convicted when in fact he had been convicted of a number of crimes.

The Civil Service Law (Section 50.4) provides for the removal of an employee found to have falsified his application form. In such cases the law requires that the employee be given an opportunity to explain the matter before being removed from the position.

It appears that the reason for the employee’s removal was the falsification of the information on the application form, not the fact that he had earlier been convicted.

Generally the employee or applicant having a criminal conviction in his record may not be barred from employment unless the offense is found to be job related and has a potential for a breech of faith or a related problem.

For example, conviction for illegal possession of a drug might be a basis for disqualifying a person seeking a position in a pharmacy where controlled substances and drugs are kept but probably would not be relevant in connection with a clerical position in an office.

Inconsistent determinations void discipline finding

Inconsistent determinations void discipline finding

Fogerty v. Connelie, 76 A.D.2d 987

The three member board found the employee not guilty of one charge, but guilty of a number of other charges.

The appointing officer found the employee guilty of all the charges after “acceptance of the board’s findings and conclusions” and imposed the penalty of dismissal.

The Court annulled the determination, holding that “(a) comparison of Connelie’s decision and that of the hearing board establishes that the two determinations are inconsistent in that Connelie, but not the board, found Fogerty guilty of all the specifications in the first charge”.

Also missing from the appointing authority’s decision were the reasons relied upon by Connelie for the dismissal of Fogerty.

Employee denied additional probationary period

Employee denied additional probationary period

In Re Holbrook, 78 A.D.2d 840

The agency terminated the employee for failing to satisfactorily complete his probationary period because “his conduct towards his peers and subordinates engendered hostility, he failed to follow...policy respecting the routing and handling of legal department mail causing unnecessary delays...and he took upon himself the task of reviewing the operations of the legal department...diverting...from the work priorities his superiors had established for him”.

The employee sued and a State Supreme Court judge granting Holbrook petition and directed that the employer extend the individual’s probationary period for 12 weeks.

The Appellate Division overturned the lower court’s ruling, holding that there was a clearly ample rational justification for the termination since “(the employee) in his reply affidavit virtually confirms [the employer’s] observations” concerning his performance of his duties.

The court also rejected the employee’s representation that his dismissal was motivated by his uncovering and reporting his immediate supervisor’s poor management practices. 

Tenured teacher’s objection to submitting a challenge to termination to arbitration rejected

Tenured teacher’s objection to submitting a challenge to termination to arbitration rejected

Atwater v. Commissioner of Education, Massachusetts Supreme Court, November 21, 2011, Docket: SJC-10817

A tenured teacher was terminated for conduct unbecoming a teacher.

The teacher appealed contending that Massachusetts law compelling arbitration of a wrongful dismissal claim made by a tenured public school teacher violated Article 30 of the Massachusetts Declaration of Rights because it impermissibly delegated to a private individual (an arbitrator) a judicial function and denied meaningful judicial review.

Massachusetts Supreme Court ruled that submitted a challenge to a principal's or superintendent's dismissal decision to arbitration did not interfere with “core judicial functions” and the statute provided sufficient judicial review.

The decision is posted on the Internet at:

http://law.justia.com/cases/massachusetts/supreme-court/2011/sjc-10817.html