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February 07, 2012

Names of retired New York City police officers not available pursuant to a FOIL request

Names of retired New York City police officers not available pursuant to a FOIL request
Empire Ctr. for N.Y. State Policy v New York City Police Pension Fund, 88 AD3d 520

The Appellate Division affirmed a Supreme Court ruling that denied the Empire Center for New York State Policy’s petition seeking an order directing the New York City Police Pension Fund to comply with Freedom of Information Law (FOIL) request for the names of all of the Funds retired members.

Noting that the Court of Appeals held that Public Officers Law §89(7) exempts from disclosure both the names and addresses of retirees of the New York City Police Department receiving pensions and annuities [see Matter of New York Veteran Police Assn. v New York City Police Dept. Art. I Pension Fund (61 NY2d 659)], the Appellate Division said that Supreme Court had properly denied the petition as Empire Center offered “no persuasive argument distinguishing its FOIL request from that in Matter of New York Veteran Police Assn.

The decision is posted on the Internet at:

Where arbitration is statutorily mandated, the arbitrator’s decision is subject to "closer judicial scrutiny” than might otherwise be the case

Where arbitration is statutorily mandated, the arbitrator’s decision is subject to "closer judicial scrutiny” than might otherwise be the case
Powell v Board of Educ. of Westbury Union Free School Dist., 2012 NY Slip Op 00790, Appellate Division, Second Department

The Education Law §3020-a arbitrator sustained certain charges of misconduct against Darnel Powell and terminated his employment.

Powell appealed, contending that the arbitrator's determination was arbitrary and capricious because the arbitrator did not resolve issues of credibility in his favor.

The Appellate Division rejected Powell’s claim, explaining that in the event "the evidence is conflicting and room for choice exists," a court may not weigh the evidence or reject the choice made by the arbitrator.

Sustaining the arbitrator's ruling, the court, however, pointed out that where the obligation to arbitrate arises as the result of a statutory mandate, as is the case in Education Law §3020-a disciplinary procedures, the arbitrator’s determination is subject to "closer judicial scrutiny" -- i.e., greater scrutiny than it might otherwise receive where submitting the matter to arbitration is a decision of the parties.* Indeed, said the Appellate Division, "An award in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious."

Further, a court in reviewing a decision that resulted from compulsory arbitration inquires as to “whether the decision was rational or had a plausible basis," but otherwise accepts the arbitrators' credibility determinations, even where, as noted above, there is conflicting evidence and room for choice exists."

The decision also commented that in this instance, and contrary to Powell’s contention, the arbitrator properly refused to admit into evidence his proffered polygraph test evidence.

* Presumably this standard of review would not apply in arbitrations not statutorily mandated such as arbitrations available in disciplinary procedures negotiated pursuant to §76.4 of the Civil Service Law. 

The decision is posted on the Internet at:


February 06, 2012

From the Office of the State Comptroller:

From the Office of the State Comptroller:

State Comptroller warns of lottery scam
On February 3, 2012 New York State Comptroller Thomas P. DiNapoli issued a warning of a lottery scam involving mail containing fraudulent checks that appear to have been issued by New York State. “An offer of easy money is usually too good to be true and that is the case here.” DiNapoli said.



Audits of municipalities issued during the week ending February 3, 2012

New York State Comptroller Thomas P. DiNapoli’s office this week released the following audits: the Town of Avon; the Village of Granville; the Village of Hamilton; the Village of Monticello; the Village of Port Jefferson; and, the Clifton–Fine Central School District. Click on the name of the jurisdiction to access the Comptroller's audit report.

Property Tax Cap filing requirements

New York State’s property tax cap, effective for local fiscal years beginning in 2012 and for the 2012-13 school year limits annual increases in the total amount of property taxes local governments and school districts can levy to either 2 percent or the rate of inflation, whichever is less, with some limited exceptions. For information, visit www.osc.state.ny.us and click the “Real Property Tax Cap Information” link, or call the State Comptroller’s Office at (518) 473-0006.

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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. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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