The “personal records” exemption from disclosure set out in Civil Rights Law §50-a (1) applies to both active and former employees of the agency

The “personnel records” exemption set out in Civil Rights Law §50-a (1) applies to both active and former employees of the agency

Hearst Corp. v New York State Police, 2013 NY Slip Op 03900, Appellate Division, Third Department

Supreme Court dismissed the Hearst Corporation’s [Hearst] appeal of an administrative decision denying its Freedom of Information [FOIL] request for “all records” maintained by the Division of State Police concerning a former State Trooper. The Division had claimed that the records sought “records were exempt from disclosure under Civil Rights Law §50-a.”

Essentially §50-a.1 provides that the personnel records of police officers, deputy sheriffs, peace officers, firefighters, firefighter/paramedics and correction officers used to evaluate their performance with respect to their continued employment or promotion are confidential and not subject to inspection or review without the express written consent of the individual concerned “except as may be mandated by lawful court order.”*

Addressing the Civil Rights Law §50-a.1 arguments advanced by Hearst in seeking a former State Trooper’s personnel records, the Appellate Division sustained the lower court’s ruling, explaining:

1. Under FOIL, agency records are presumptively available for public inspection, without regard to the need or purpose of the applicant unless the requested documents fall within one of the exemptions set forth in Public Officers Law §87(2);

2. Public Officers Law §87(2)(a) permits an agency to deny access to public records that "are specifically exempted from disclosure by state or federal statute." One such exemption is found in Civil Rights Law §50-a.1** and

3. Such statutory exemptions to disclosure under FOIL must be narrowly construed and the agency opposing disclosure "carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access."

Considering the Hearst newspaper’s claim that “as a matter of law, Civil Rights Law §50-a does not apply to records related to former officers,” the court said that §50-a.1 exempts from disclosure personnel records "used to evaluate performance toward continued employment or promotion" and so long as a document was used “at any time during the officer's employment” to evaluate the officer for promotion or continued employment, it is exempt from disclosure as a personnel record.

The Appellate Division said that the fact that the individual is a “former officer” does not mean that there is no realistic possibility of abusive use of the records against him in litigation, noting that to hold otherwise “would lead to the illogical result that a document ceases to be a personnel record immediately upon the officer's severance from employment.”

Accordingly, the court concluded that a document that is a personnel record within the meaning of Civil Rights Law §50-a does not depend on whether the officer to whom it relates is a current or former employee of the agency maintaining the record.

* Civil Rights Law §50-a.4 provides that “The provisions of this section shall not apply to any district attorney or his assistants, the attorney general or his deputies or assistants, a county attorney or his deputies or assistants, a corporation counsel or his deputies or assistants, a town attorney or his deputies or assistants, a village attorney or his deputies or assistants, a grand jury, or any agency of government which requires the records described in subdivision one, in the furtherance of their official functions.

** Other New York State statutes limiting the disclosure of public records include Education Law, §1127 - Confidentiality of records; and §33.13, Mental Hygiene Law - Clinical records; confidentiality].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03900.htm

Municipalities intending to promulgate or amend civil service personnel rules must comply with the provisions of Civil Service Law §20

Municipalities intending to promulgate or amend civil service personnel rules must comply with the provisions of Civil Service Law §20

Floyd v City of New York, 2013 NY Slip Op 03772, Appellate Division, First Department

Under color of New York City Mayoral Personnel Orders No. 2012/1 and 2012/2, the City issued rules allocating certain “ungraded” civil service titles otherwise subject to prevailing wage bargaining under Labor Law §220 to positions allocated to a salary grade. Such positions, however, upon their being allocated to a salary grade fell within the ambit of the New York City Collective Bargaining Law rather than the provisions of  Labor Law §220. The City’s rules were challenged by the several unions in this action.

The unions argued that the City's actions unilaterally changed ungraded civil service titles which are subject to Labor Law §220 application of prevailing rate wages and supplemental benefits by effectively deleting these classifications and reclassified the ungraded prevailing rate titles into 14 new “Maintenance and Operation Services” titles in violation of Civil Service Law §20.2.*

The City, on the other hand, contended that it had complied with Civil Service Law §20.1 when it allocated titles to a salary grade because it had not change the  jurisdictional classification of the position as §20 “only applies when a title is changed from competitive to noncompetitive or exempt class.” The City also argued that the Department of Citywide Administrative Services has authority to act as a municipal civil service commission pursuant to the New York City Charter and may review salaries and titles, grade and classify them, and remove them from the scope of Labor Law §220 subject to the Mayor's approval and that “the grading of competitive class titles was rational because it is within the City's managerial prerogative, and therefore notice, public hearings and New York State Civil Service Commission approval are not required.”

Supreme Court Judge Manuel J. Mendez annulled the City’s rules that resulted in the several previously “unallocated positions” being allocated to a salary grade. In the words of Judge Mendez, "the changes proposed and implemented by the [the City] resulted in not just grading but reclassification of job titles subject to the provisions of Civil Service Law §20 [36 Misc.3d 653].

Citing Corrigan v Joseph, 304 NY 172, 185 [1952], cert denied 345 US 924, the Appellate Division dismissed the City’s appeal, ruling that the City had promulgated the rules in question without complying with the procedures mandated by Civil Service Law §20 as they had been adopted without notice, without a public hearing, and without approval by the State Civil Service Commission.

* Civil Service Law §20.2, in relevant part, provides as follows: "Procedure for adoption of rules. Such rules, and any modifications thereof, shall be adopted only after a public hearing, notice of which has been published for not less than three days, setting forth either a summary of the subject matter of the proposed rules or modifications or a statement of the purpose thereof. Except for the city of New York, notice shall be given to any person or agency filing written request, such request to be renewed yearly in December, for notice of  hearings which may affect such person or agency. Such notification shall be made by mail to the last address specified by the person or agency at least thirty days prior to the public hearing  … The rules and any modifications thereof adopted by a city civil service commission or city personnel officer shall be valid and take effect only upon approval of the mayor or a deputy mayor designated in writing by the mayor, such designation to be filed in the offices of the state civil service commission, ... provided, however, that where the mayor, deputy mayor or city manager, or other authority, as the case may be, fails to approve or disapprove a rule or modification thereof within thirty days after the same has been submitted to him, such rule or modification thereof shall be deemed to be approved by him…."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03772.htm

Amending the qualifications for appointment to a position in the public service is a “Management Right” and is not a mandatory subject of collective bargaining

Amending the qualifications for appointment to a position in the public service is a “Management Right” and is not a mandatory subject of collective bargaining
Uniformed Firefighters Assn. of Greater N.Y., Local 94 v City of New York, 2013 NY Slip Op 03763, Appellate Division, First Department

State Supreme Court Judge Carol E. Huff denied the Uniformed Firefighters Association petition seeking to annul the New York City Board of Collective Bargaining’s (BCB), decision dismissing the Association’s improper practice complaint.

BCB had rejected the Association’s improper practice charge challenging the New York City Fire Department’s decision to change the job requirements for the position of fire company chauffeur without first negotiating the proposed change with the Association.

Sustaining the Supreme Court’s ruling, the Appellate Division said that BCB's determination was neither arbitrary and capricious, contrary to law, nor an abuse of discretion, explaining that the “ … Fire Department's decision to alter the job requirements for the position … was within the sound exercise of its managerial discretion.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03763.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week ending May 26, 2013 [Click on text highlighted in bold to access the full report] 

DiNapoli Releases Report on Proposed NYS DREAM Act

New York State Comptroller Thomas P. DiNapoli released a reporton May 20, 2013 estimating the cost and economic benefits of the proposed New York State Development Relief and Education for Alien Minors Act, which would increase access to financial aid for undocumented college students.

The report concluded that extending eligibility for the state’s Tuition Assistance Program to undocumented undergraduate students would provide economic benefits to the state at a very small cost.

DiNapoli: Poughkeepsie Facing Severe Fiscal Stress

Inaccurate budgeting has created an $11 million general fund deficit in the city of Poughkeepsie, according to an auditissued on May 22, 2013  by State Comptroller Thomas P. DiNapoli. 

The report also found the city’s debt burden has increased 45 percent over the past five years.

DiNapoli Response to Arrest of Former Old Field Treasurer

While conducting an audit and investigation of the Village of Old Field in Suffolk County, State Comptroller Thomas P. DiNapoli’s staff uncovered the misappropriation of nearly $60,000 in village funds by Andrea Brosnan, the former village treasurer.

Comptroller DiNapoli Releases Municipal Audits

On May 22, 2013 New York State Comptroller Thomas P. DiNapoli announced   that his office completed audits of:

the Apalachin Fire District;

the Town of Hanover;

the Lakeville No. 2 Fire District;

the Town of Rhinebeck;

the Town of Summerville;

the Town of Southampton;

the Village of Sylvan Beach; and,

the Town of Wethersfield.

Comptroller DiNapoli Releases Audits

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued on May 20, 2013:

Department of Health;

New York State Thruway Authority;

Rochester–Genesee Regional Transportation Authority;

Department of Environmental Conservation;

State University of New York, Fuller Road Management Company;

Department of Agriculture and Markets;

Capital District Transportation Authority;

Department of Transportation; and,

State University of New York: College at Plattsburgh.

Delaying the processing of an application for retirement and the denial of “retiree benefits” because of alleged employee misconduct

Delaying the processing of an application for retirement and the denial of “retiree benefits” because of alleged employee misconduct

Union Endicott Cent. Sch. Dist. v Endicott Teachers' Assn., 2013 NY Slip Op 50833(U), Supreme Court, Broome County [Not selected for publication in the Official Reports.]

State Supreme Court Judge Ferris D. Lebous’ decision in this action considered issues raised by the union on behalf of a retired teacher concerning the school district’s delay in processing her application for retirement benefits and her eligibility for retiree health insurance under a Collective Bargaining Agreement.

The events leading to this proceeding was summarized by the court as follows. :

A teacher for the Union-Endicott Central School District became “a person of interest” in an investigation involving stolen school property. The teacher, however, tendered her resignation before the investigation was completed. Although the resignation indicated that the teacher intended to resign and retire at the end of the academic year, the Board of Education decided to delay the processing of the teacher’s application for retirement pending determinations on criminal charges and disciplinary charges.

The Association filed grievances challenging the Board of Education's decision to delay the processing of the teacher’s retirement ("Grievance No.1") and its denial of the teacher’s retiree health insurance benefits ("Grievance No.2"). Judge Lebous stayed the arbitration of Grievance #1 as “not arbitrable,” but ordered the arbitration of Grievance #2 (see Union Endicott Cent. School Dist. v Endicott Teachers' Assn., 25 Misc 3d 1210 [A]).

The Appellate Division affirmed the court's rulings, holding that arbitration could not be compelled with respect to Grievance # 1 [see http://www.nycourts.gov/reporter/3dseries/2009/2009_01060.htm] and that Grievance #2, the grievance challenging the denial of the teacher’s health insurance benefits upon retirement, was arbitrable [see http://www.nycourts.gov/reporter/3dseries/2010/2010_07647.htm].

Ultimately, the arbitration hearing on the issue of the teacher’s eligibility for health insurance benefits upon retirement was conducted and arbitrator Louis Patack issued an Opinion and Award in favor of the teacher. The school district then filed a petition pursuant to CPLR Article 75 seeking a court order vacating the arbitrator’s award.

As phrased by the court, “The School District's primary argument in support of it's petition is that the arbitrator failed to consider the issue of [the teacher’s] misconduct” in terms of  “the faithless servant doctrine,” contending that the Appellate Division had “instructed” the consideration of that issue.  The School District claimed that this failure on the part of the arbitrator constituted “misconduct in rendering his award and constitutes a ground for vacating the same under CPLR §7511 (b) (1) (i) and (iii).”

Noting that the Appellate Division “… did not mandate that the arbitrator apply the doctrine but merely stated that '[t]he issue of the effect, if any, of [the teacher’s] alleged misconduct on her entitlement to benefits goes to the merits of her grievance, not to its arbitrability,'” Further, Judge Lebous rejected the School District's representation that the arbitrator failed to consider or address the faithless servant doctrine. Rather, said the court, the record “clearly reflects that the arbitrator did considerwhether the doctrine applied under the CBA and held that it did not.”

In addition the court commented that “as outlined by the Association,” the parties had entered into a stipulation at the arbitration hearing that the School District would offer evidence of [the teacher’s] alleged misconduct only if the arbitrator determined that the doctrine applied and because he did not so rule no such evidence was accepted.

Accordingly, the court denied the school district’s petition to vacate or modify the arbitration award and, in addition, denied its application for a stay of enforcement and implementation of the arbitration award.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_50833.htm

Including proposed staffing changes in a plan to close schools submitted to the State Education Department does not cloak the staffing issues as a state policy, law or regulation thereby precluding submitting the matter to arbitration

Including proposed staffing changes in a plan to close schools submitted to the State Education Department does not cloak the staffing issues as a state policy, law or regulation thereby precluding submitting the matter to arbitration

Board of Educ.of the City Sch. Dist.of the City of N.Y. v Mulgrew, 2013 NY Slip Op 03580, Appellate Division, First Department

The New York City Department of Education (DOE) had filed a plan seeking to close 24 “underperforming schools” and to subsequently reopen 24 "new" schools at the identical locations and facilities with the State Department of Education (SED), which conditionally approved the plan.

The Unions filed demands for arbitration to the extent that the plan proposed to "excess" the staff of the closing schools, alleging that DOE’s plan to open new schools was a pretext to circumvent established procedures in their respective collective bargaining agreements (CBAs) for removing unsatisfactory teachers and other personnel. The Unions also contended that DOE’s plan circumvented their CBAs' requirements that excessing of teachers, i.e., "those let go through no fault of their own," be done on the basis of seniority.

The arbitrator concluded [1] that the Unions' disputes were arbitrable and [2] that the plan had "as its primary, if not sole, objective," avoiding undesirable teachers by excessing them under CBA provisions relating to closed or phased out schools, which violated CBA requirements that excessing be done on the basis of seniority.*

Supreme Court, New York County denied the DOE’s CPLR Article 75 petition seeking an order vacating the arbitration award and granted the cross-petition of the United Federation of Teachers, Local 2, and the Council of School Supervisors and Administrators, Local 1, American Federation of School Administrators to confirm the award. The Appellate Division unanimously affirmed the lower court’s ruling.

The Appellate Division explained that the arbitrator neither exceeded his powers under the CBAs, nor did he violate public policy in resolving the merits of the parties' disputes. The CBAs, said the court, provide that unresolved grievances concerning the application or interpretation of the CBAs are subject to arbitration.

Although the definition of a grievance under the CBAs does not include any matter for which a method of review is proscribed by law, or any rule or regulation of the SED having the effect of law, here the grievances seek only to have the arbitrator consider the interpretations of the CBAs and whether the plan, if implemented as written, violates the contractual rights and responsibilities of the parties.

Finding DOE's argument that arbitration necessarily interferes with the SED's statutory and regulatory authority “unpersuasive,” the Appellate Division although DOE “broadly referencing educational laws and regulations,” it failed to identify any law that "prohibit[s], in an absolute sense, [the] particular matters [to be] decided," citing County of Chautauqua v Civil Serv. Empls. Assn, Local 1000, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513 and commenting that only when the interest in maintaining adequate standards is attached to a well-defined law that public policy is implicated."

The Appellate Division concluded that the underlying grievance in no way impinges on the authority of the SED to approve a plan for the closure or the reopening of the 24 “underperforming schools” as new schools under the Education law (Education Law § 2590-h) nor DOE’s own inclusion of proposed staffing changes in its plan to close schools to support its argument that staffing issues are now a state policy, law or regulation having the effect of law, which removes them from the dispute resolution regimen provided in the CBAs.

.

Finding that the Unions' grievance does not challenge either the DOE's right to put forth a plan to close schools or the SED's right to approve such a plan. But only seeks only a determination regarding the interpretation and implementation of staffing requirements under the CBAs, the Unions were not, therefore, relegated to raising their dispute in an Article 78 proceeding rather than submitting the dispute to arbitration.

* Although not addressed in the decision, an appointing authority may not excess or lay a tenured employee as a subterfuge for disciplinary action [Young v Board of Education, 35 NY2d 31].

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_03580.htm

=========================

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.

=========================

A “perfect storm” of personnel transactions and decisions

A “perfect storm” of personnel transactions and decisions 

2013 NY Slip Op 03559, Appellate Division, First Department

This decision describes a series of events resulting from a “perfect storm” of personnel transactions and decisions including an incorrect administrative personnel determination by a central personnel agency and a career choice made by the employee [AR] that ultimately resulted in the frustration of AR’s immediate employment expectations.

The genesis of the Appellate Divisions ruling was AR’s filing a petition pursuant of CPLR Article 78 seeking, among other things,

1. Reinstatement to her prior position of permanent Fraud Investigator;

2. Placement on the New York City Department of Homeless Services' (DHS) eligible list for promotion to Associate Fraud Investigator; and

3. Monetary damages for wrongful denial of promotion and wrongful transfer.

Supreme Court denied AR’s petition, which ruling the Appellate Division affirmed on appeal.

According to the Appellate Division's decision, DHS had permanently appointed AR to the position of Fraud Inspector and subsequently provisionally promoted her to Associate Fraud Inspector. However, the New York City Department of Citywide Administrative Services (DCAS) ruled that AR was ineligible for permanent appointment to Associate Fraud Inspector. AR challenged and successfully appealed DCAS’s decision regarding her eligibility for promotion to the higher title.

AR, however, was employed by the New York City Human Resources Administration (HRA) when she won her administrative appeal regarding the error made DCAS concerning her eligibility for promotion to Associate Fraud Inspector. This proved to be a critical element in the Appellate Division’s analysis of AR’s several claims.

The Appellate Division said that although DCAS had erroneously ruled AR ineligible for promotion to the position of Associate Fraud Inspector, AR conceded that she was not entitled to be appointed to that position, but only to be placed on a special eligible list and given due consideration for appointment from that list.*

Further, the court ruled that AR’s contention that DCAS acted arbitrarily in failing to place her on an eligibility list certified to DHS — where she was working when the error regarding her eligibility was made, rather than HRA, where she was employed when she won her administrative appeal — was unavailing “as the record indicates that AR turned down the opportunity to return to DHS, evidently believing at that point that her prospects were better at HRA.”**

Addressing another aspect of AR’s personnel related claims, the Appellate Division agreed with AR’s argument that she would not have been laid off as a DHS Fraud Inspector but for DCAS's miscalculation of her seniority. However, the court ruled that AR was not entitled to back pay as a result of this error because she had transferred to a job at HRA with the same title and compensation.

Finally, the court ruled that AR was not entitled to compensation in connection with her demotion from provisional Associate Fraud Inspector to her permanent title, Fraud Inspector. Her provisional appointment, said the court, preceded her transfer to HRA and thus AR “had no expectation of tenure in the provisional position,” and, as a provisional employee, she could be dismissed from that title without a pre-termination disciplinary hearing or any statement of reasons for her termination from that position.

* See Andriola v Ortiz, 82 NY2d 320, Certiorari denied, 511 US 1031

** Although the decision is silent as to the nature of AR's moving from DHS to HAR, this observation by the court suggests that AR resigned, or was deemed to have resigned, from her postion with DHS simultaneously with her appointment to HAR or at some point after her "transfer" to HAR.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03559.htm