ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

April 03, 2012

The denial of a FOIL request by an entity subject to the Freedom of Information Law may not be based on the purpose for which the document or record was produced or the function to which it relates


The denial of a FOIL request by an entity subject to the Freedom of Information Law may not be based on the purpose for which the document or record was produced or the function to which it relates
Hayes v Chestertown Volunteer Fire Co., Inc., 2012 NY Slip Op 02367, Appellate Division, Third Department

The Chestertown Volunteer Fire Company, Inc. [CVFC] partially denying Christine A. Hayes’s Freedom of Information Law requests, contending that it was a private corporation not subject to the requirements of FOIL.

Ultimately Hayes initiated a CPLR Article 78 proceeding seeking to compel CVFC to comply with numerous FOIL requests and the Open Meetings Law, as well as an award of counsel fees and litigation costs.

Supreme Court held that the Open Meetings Law was not applicable to the meetings held by CVFC and ordered CVFC to submit the documents requested by Hayes to the court for an in camera review so that it could redact any records containing "non-firematic" information. Hayes appealed.

The Appellate Division, agreeing with Hayes, said that “to the extent Supreme Court's FOIL determination differentiated between records concerning public, or ‘firematic,’ and private functions of CVFC, this was error.”  Although Supreme Court found, and CVFC conceded, that CVFC is an "agency" subject to the requirements of FOIL, it was incorrect in determining that “because CVFC engages in both governmental and private activities, the records of its nongovernmental functions are not subject to FOIL's disclosure requirements.”

Commenting that nothing in the statute itself and nothing in the legislative history suggesting that the Legislature intended such content-based limitation in defining the term "record," the Appellate Division said that the Court of Appeals has consistently held that "FOIL's scope is not to be limited based on 'the purpose for which the document was produced or the function to which it relates,'" citing Westchester Rockland Newspapers v Kimball, 50 NY2d at 581.

Having determined that CVFC is an "agency" subject to FOIL, the Appellate Division said that Supreme Court was required to order disclosure of the requested records — without regard to whether they related to governmental or nongovernmental functions — unless one of the exceptions set forth in Public Officers Law §87 (2) was applicable.” Noting that CVFC had not claimed the benefit of any FOIL exemption,* "it must make the requested records available” to Hayes.

The Appellate Division, however, said that it was not persuaded that Supreme Court erred in denying Hayes' request for counsel fees and litigation costs. Explaining that "Reasonable counsel fees 'may' be awarded by the court in a FOIL proceeding where the litigant has 'substantially prevailed,' where the court finds that the record involved was 'of clearly significant interest to the general public' and where 'the agency lacked a reasonable basis in law for withholding the record,'" the court said that even where all of the statutory requirements have been met, "the decision whether to award counsel fees rests in the discretion of the court and will not be overturned in the absence of an abuse of such discretion." 

Although Hayes had “substantially prevailed,” characterizing the documents sought as “not of significant interest to the general public, the Appellate Division decided that Supreme Court had not abused its discretion in denying Hayes' request for attorney fees and costs.

As to Hayes’ complaint concerning CVFC's alleged violation of the Open Meetings Law, the Appellate Division held that although “CVFC is an ‘agency’ under FOIL, it is not a ‘public body’ subject to the Open Meetings Law” and thus its monthly meetings need not be open to the public.

The Open Meetings Law, said the court, requires that "[e]very meeting of a public body … be open to the general public," citing Public Officers Law §103[a], and defines "public body" as "any entity, for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof."

While there was no dispute that the Fire District, as a political subdivision of the State and thus a "public body," is subject to the Open Meetings Law, the Appellate Division noted that, in contrast, CVFC is a private, not-for-profit corporation organized as a charitable organization under the Not-For-Profit Corporation Law and governed by its constitution and bylaws.** 

As the record established that, unlike the meetings of the Board of Fire Commissioners of the Fire District where the official government business of the Fire District is conducted, the meetings of CVFC relate to its internal affairs and the social, recreational and benevolent activities that it undertakes in furtherance of its charitable purpose. Further, said the court, CVFC receives no public funds for such events and activities, which are instead supported through fundraising and donations from private sources. Accordingly, the Appellate Division concluded that CVFC is not a "public body" under the Open Meetings Law.

* 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]. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute. A FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the information. It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

** See N-PCL §§201 and 1402[e][1].

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02367.htm

If the CBA provides for the arbitration of alleged contract violations, unless there is a statutory, constitutional or public policy prohibition barring such arbitration courts cannot stay the arbitration


If the CBA provides for the arbitration of alleged contract violations, unless there is a statutory, constitutional or public policy prohibition barring such arbitration courts cannot stay the arbitration
County of Rockland v Civil Serv. Empl. Assn., Inc., 2012 NY Slip Op 01815, Appellate Division, Second Department

The Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO (CSEA), filed a grievance on behalf of one of its members in the collective bargaining unit and shortly thereafter filed a similar grievance on behalf of another of its members in the unit. Both grievances filed by CSEA alleged that Rockland County had violated certain provisions of the Collective Bargaining Agreement [CBA] between CSEA and the County when it assigned per diem employees to perform certain work instead of giving those assignments to regular full- and part-time employees in the collective bargaining unit.

Rockland denied the grievances and ultimately CSEA demanded that the grievances be submitted to binding arbitration.

Rockland County filed an Article 75 petition in Supreme Court seeking a court order permanently staying the arbitration. Supreme Court granted its petition and permanently stayed the arbitration of the grievances. The Appellate Division reversed the lower court’s order.

The Appellate Division said that in the public sector context, determining whether a grievance is arbitrable requires a court to first determine whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance.

If the demand for arbitration meets this test, then the court must then determine "whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement."

The Appellate Division said that inasmuch as the grievances allege that Rockland County violated certain provisions of the CBA, and the CBA contains a procedure to arbitrate "any alleged violation, misrepresentation, or inequitable application of [the CBA]," the parties have agreed to arbitrate the grievances.

Further, noted the court, Rockland’s allegation that CSEA’s demand for arbitration was untimely is an issue to be resolved by the arbitrator and not the courts.

Thus, said the Appellate Division, Supreme Court erred in granting the County’s petition and permanently staying the arbitration. 

The decision is posted on the Internet at:

April 02, 2012

Removal from public office


Removal from public office

Warren v Bielecki, 2012 NY Slip Op 01037, Appellate Division, Fourth Department

Although this action seeking to remove two persons from public office pursuant to Public Officers Law §36 was dismissed as moot as the individuals targeted for such removal no longer held public office, the Appellate Division commented that had it consider the matter on its merits if would have dismissed the petition seeking such removals.

The court noted that based on the findings of fact made by a referee it had appointed, there were insufficient grounds upon which to remove either individual from office pursuant to Public Officers Law §36.

Removal from public officer pursuant to Public Officers Law §36 requires evidence of "self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust."

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01037.htm

Lack of objective evidence of a disability supports rejection of employee’s application for disability retirement benefits


Lack of objective evidence of a disability supports rejection of employee’s application for disability retirement benefits
Hughes v Kelly, 2012 NY Slip Op 02393, Appellate Division, First Department
A New York City police officer, Jeffrey Hughes, filed an application for accidental disability retirement benefits. He also filed an application for ordinary disability retirement benefits. Police Commissioner Raymond Kelly rejected denied both applications and Hughes filed a petition pursuant to CPLR Article 78 seeking to overturn the Commissioner’s determination.
Supreme Court dismissed Hughes’ petition. Unanimously affirming the lower court’s ruling, the Appellate Division held that there was a rational basis the Commissioner’s determination.
The record, said the court, showed that after reviewing the medical evidence submitted by Hughes and the findings from its physical examinations of Hughes, the Medical Board concluded that "there was no objective evidence of a disability." Citing Matter of Appleby v Herkommer, 165 AD2d 727, the Appellate Division noted that “ It is well established that the court may not substitute its judgment for that of the Medical Board.”
The decision indicates that the Medical Board found that the deficits in Hughes’ “range of motion” were attributable to "voluntary guarding" and there were no objective radiographic studies presented showing any abnormal findings. Further, said the court, Board considered evidence submitted by Hughes' personal physicians and provided a rational explanation for its medical judgment.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02393.htm

March 31, 2012

Retrenchment in education: a national problem

Retrenchment in education: a national problem
Source: Selected items reported in newspapers and blogs and on television concerning teacher layoffs

Below are some of the articles concerning the reduction of teaching personnel in schools districts throughout the United States.


Montville schools brace for cuts; 18 teachers get layoff notices
Norwich Bulletin
By KALA KACHMAR The Montville school district has issued layoff notices to 18 teachers indicating the school board might not renew their contracts next year because of budget constraints. The state requires teachers be notified by May 1 if there is a ...
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Pontiac schools to lay off 95, including 43 teachers
The Detroit News
By Shawn D. Lewis Pontiac— The Pontiac Public School District will lay off 95 employees, including 43 teachers, beginning next month as part of its plan to eliminate a $24.5 million deficit. The cuts also include 27 school administrators, ...
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Zionsville economy, property values, quality teachers hang in the balance of ...
Indianapolis Star
The rejection resulted in the layoff of 21 teaching and counseling positions. Last year, the school district finally got a money-saving ballot measure passed when 74.5 percent approved a plan to refinance debt as a way to generate a few million dollars ...
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Ohio Federation of Teachers says Cleveland reform plan lacks any proven ...
Plain Dealer
Jackson's plan would possibly expand the school year or school day, set-up a merit pay for teachers, base layoffs on teacher performance and make getting rid of poor teachers easier. Seniority would no longer be the sole determining factor in layoffs ...
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Shrewsbury parents object to class sizes, talk override
Wicked Local
Although Superintendent Joseph Sawyer announced $2.3 million in cuts recently, including five teacher layoffs and the loss of 32 full-time positions, the district is still facing an $844000 budget gap. If the town does not receive increased revenue, ...
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979 fewer teachers in Maryland public schools
The Star Democrat
Half of the state's school systems have fewer teachers this year than last with a system's largest decline reaching 634. In recent years, some other states have undergone budget cuts sometimes resulting in thousands of teacher layoffs.
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School board works to close budget gap
YNN
After last week's recommendation of more than 100 teacher layoffs, Superintendent Joe Hochreiter laid out further possible reductions in special education services and facility usage. Hochreiter also challenged the district staff to make concessions if ...
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Littleton Educators' Association, School Committee reach tentative agreement
Wicked Local
... would cost $16.9 million in fiscal 2013, including step-and-lane salary increases and increased special education costs, the School Committee has voted for a $16.3 million budget, which may incorporate both teacher layoffs and fee increases.
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Public speaks against Shenandoah Valley budget plan
Republican & Herald
SHENANDOAH - The proposed cuts in many programs and layoffs of teachers drew a standing-room-only crowd for Wednesday's regular meeting of the Shenandoah Valley Board of Education, with most speakers focusing on the planned loss of the music program.
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Schools Will Be Protected From Cuts Next Year, Walcott Says
New York Times
By Anna M. Phillips After years of painful cuts and threats of teacher layoffs, New York officials laid out on Tuesday a decidedly more optimistic portrait of financing for city schools next year, saying they expected that principals would have enough ...
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Massie tells City Council funding gap will bring more teacher layoffs
Lynchburg News and Advance
Interim Superintendent Larry Massie told Lynchburg City Council Tuesday the school division will cut more teachers, beyond the 34 positions already budgeted, if $3.7 million in additional funding does not materialize. Massie and School Board Chairman ...
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No teacher layoffs in Kingsburg schools
Kingsburg Recorder
By Mary Lou Aguirre Kingsburg Joint Union High School District teachers can enjoy their spring vacation knowing their jobs aren't in jeopardy. KHS Principal/Superintendent Randy Morris was asked if state cuts to education would result in layoffs for ...
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Hundreds protest layoffs at Baldwin Park Unified meeting
Pasadena Star-News
BALDWIN PARK - Dressed in red and armed with signs and chants, hundreds of parents, children and teachers Tuesday took on a half-mile march to a Baldwin Park Unified board meeting to protest recent teacher layoffs. The rally came on the heels of a ...
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Breaking Down the Budget: What Teacher Layoffs Would Mean
Patch.com
Patch File photo As the Three Village Central School District copes with losses in state aid combined with unfunded mandates and rising costs, administrators have proposed eliminating nine full-time equivalent teaching positions at the elementary level ...
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Fulton County Schools officials say budget could be balanced without layoffs ...
Atlanta Journal Constitution
By D. Aileen Dodd Fulton County Schools chief financial officer Robert Morales said Tuesday as the district prepares for budget season it is facing a $41.9 million funding gap that it could handle without teacher layoffs or furlough days.
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Students upset iPads bought for school while teachers are laid-off
39online.com
Well originally there was the suggestion that the $18 million spent on the devices would be better served preventing teacher's layoffs. But since bond money can't be used for salaries, the argument of equality came up, suggesting that rather than ...
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School Board Approves 52 Layoff Notices, Technology Upgrades
Patch.com
By Carl Engelking As part of the planning process for the 2012-13 budget, the Menomonee Falls School Board on Monday approved the issuance of 52 preliminary layoff notices for teaching staff. School Board Member Gina Palazzari said the total number of ...
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Protest Planned at School Board Meeting for Teacher Layoffs
Patch.com
"There will be hundreds of parents, teachers and students wearing red to support our teachers." At least seven teachers are being laid off in Geddes Elementary, according to Mata. The school is located at 14600 Cavette Place, close to the intersection ...
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Dublin to lay off 16 teachers, cut 30 vacant positions
Columbus Dispatch
By Collin Binkley Two central Ohio school districts are finalizing layoffs for next school year after November levy failures. The Dublin school board voted tonight to cut 46 teaching jobs –– though only 16 people will lose jobs –– and 133 supplemental ...
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Republicans look to governor on teacher layoffs
Pioneer Press
By Megan Boldt State lawmakers who want to end seniority-based teacher layoffs put Gov. Mark Dayton's education chief on the hot seat Monday, March 26, on whether the Democrat's administration had any appetite to negotiate an agreement this year on ...
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Calif. Schools Urged to Change Layoff Policy to Improve Teaching
NewsMax.com
By Andy Butcher California school officials should change their staff downsizing policy to improve teaching and boost morale, according to the state legislative analyst's office. Procedures now base layoffs on seniority, which means that the most ...
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California Urged To Address Teacher-Layoff Policies
Education Week News (blog)
By Stephen Sawchuk on March 26, 2012 10:18 AM An analysis from California's Legislative Analyst's Office urges the state to consider revamping its teacher-layoff policies, including reducing the emphasis on seniority. The report makes nonpartisan ...
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Board Rejects Plan to Lay Off 500 Teachers, Staff
Patch.com
“Our teachers and paraprofessionals are our children's greatest asset. We really urge you to have some discussions with us before making a decision.” Staff members urged the board to reject the layoffs, and some questioned a proposal to implement a ...
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Lennox district shields teachers
Daily Breeze
By Rob Kuznia Staff Writer In a move that has the teachers union up in arms, the Lennox School District is making an end-run around "last-hired, first-fired" seniority laws, sending layoff notices to 100 of the district's 340 teachers, yet shielding ...
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Cleveland Teachers Union and Mayor Frank Jackson move closer to agreement on ...
Plain Dealer (blog)
The major accord came with how to handle the layoff and recall of teachers, with Jackson agreeing Monday to use the plan suggested by teachers last week. The compromise plan would rely on teacher evaluations first, and tenure and seniority second.
See all stories on this topic »


Teachers' Support For Reform Depends In Part On Experience -- Gates/Scholastic ...
Huffington Post
"Layoffs shouldn't be based on seniority, and it's good to make it hard to let go of teachers who are doing well." Many of these reform measures involve shaking up the teaching profession in a way that makes promotion less dependent on experience.
See all stories on this topic »

Teacher tenure bill may be unacceptable to Gov. Dayton
Minnesota Public Radio
They want public school administrators to be able to consider job performance, and not just years of service, when making decisions about teacher layoffs. Cassellius said she shares the goal of having effective teachers in every classroom.
See all stories on this topic »


Clyde cuts teachers, mulls levy
Fremont News Messenger
Elchert said there is a possibility the district could receive more retirements in the summer, which could lead to some of the laid-off employees being called back to work. The board also approved reductions to several non-teaching positions.
See all stories on this topic »


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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.
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