An appointing authority must comply with the procedures set out in Civil Service Law §72

An appointing authority must comply with the procedures set out in Civil Service Law §72

2014 NY Slip Op 24005, Supreme Court, New York County, Judge Michael D. Stallman

In this “combined Article 78 and Article 75 proceeding,” State Supreme Court Judge Michael D. Stallman considered two issues: [1] action taken under Civil Service Law §72.5 for placement of tenured civil service worker, Employee, on involuntary leave for medical disability and [2] a parallel grievance procedure under a collective bargaining agreement (CBA) between the State of New York and the Public Employees Federation, Employee's union, challenging efforts to terminate Employee from his position.

Employee was placed on involuntary leave with pay under color of Civil Service Law §72.5 by his employer [Agency] and while on such leave, was served with disciplinary charges in accordance with the disciplinary procedure set out in the CBA seeking Employee’s dismissal. Employee placed on leave without pay in connection with the disciplinary action.

Addressing the disciplinary charges served on Employee, Judge Stallman said that the matter was submitted to arbitration in accordance with the CBA’s disciplinary grievance procedure. The arbitrator sustained Employee's grievance in part and directed that he be reinstated to his position. After receiving the arbitration award Employee was notified that “he was still on leave pursuant to Civil Service Law §72.5 and that he would not be reinstated until he did certain things.”

Employee than petitioned the court to [1] confirm the arbitration award, the Article 75 proceeding; and [2] annul the determination placing him on involuntary leave pursuant to CSL §72.5, the Article 78 proceeding. As his remedy, Employee asked the court to”

(1)   Direct his reinstatement to his former position and pay him back pay and benefits; and

(2)   Declare that his continuation of leave is arbitrary and capricious and in violation of Civil Service Law §72.

Addressing the disciplinary action taken against Employee, Judge Stallman said that the Arbitrator, Gayle A. Gavin, issued her Opinion and Award, stating, "[t]he grievant is denied in part and sustained in part. The charges are proved. The penalty is modified to a time-served suspension,” and directed that Agency reinstate Employee to his position “forthwith."

Rejecting Agency’s arguments that the award should be vacated because the arbitrator's determination was irrational since the arbitrator found that all four charges had been proven, “two of which also purportedly constituted crimes under state law," and because of Employee's prior disciplinary history, “the only rational penalty is petitioner's dismissal.”

The court confirmed the arbitrator’s award* noting that the arbitrator's determination to reduce Employee's penalty to a time-served suspension “was not totally irrational,” explaining that the arbitrator analyzed and evaluated all of the relevant evidence. In setting the penalty to be imposed, the arbitrator considered the fact that in his 24 years of service Employee had received only two written counseling memoranda prior to the filing of the disciplinary charges underlying this appeal, concluding that terminating Employee's would be an excessive penalty given a "good disciplinary record for a long-term employee." However, said Judge Stallman, the arbitrator also noted that, "while dismissal in this instance is viewed as excessive, any future similar misconduct will not be treated as leniently."

Turning to Employee’s §72 appeal, the court said that Agency sent Employee a letter with the heading "Section 72 Employee Notification" notifying him, among other things, that he was to be examined by two health professionals. The letter stated, in part, that "This letter is to advise you that [Agency] has requested that you be examined by Employee Health Services to determine your fitness to perform the full duties of your position ….”

The New York State Employee Health Services subsequently advised Agency that that a physician and a psychologist had examined Employee and that based on those evaluations, [Employee] "is fit to perform the essential duties of [of his position]..However, at this time, [the psychologist] is unable to make a determination whether [Employee] represents a danger in the work place as he was evasive during psychological testing and as there was insufficient data regarding the intent of his extensive use of the internet while at work."

Agency then wrote to Employee stating that it had received Arbitrator Gavin's decision indicating that a modified penalty of a time-served suspension and reinstatement to the workplace as a result of disciplinary charges and that “this letter is to advise you that you are still on leave in accordance with Civil Service Law, Section 72.5 as a result of medical documentation provided by Employee Health Services (EHS) on … which indicated an inability to determine whether you present a danger to the workplace."

This letter also stated that “You will remain on such leave until you request a re-evaluation by EHS and [are] subsequently deemed competent to perform your duties in a manner that is safe for yourself, co-workers and the public.”

Judge Stallman Civil Service Law noted that §72(1) sets forth the mandatory procedure. The sequence of steps for proceeding under Civil Service Law § 72 (1), relevant to this case, are:

1. The employer must provide written notice of the facts providing the basis for the proposed leave and judgment that the employee is not fit to perform the duties of his position, the date on which the leave is to commence, and the employee's rights under the procedure served by first class, registered, or certified mail return receipt requested, upon the employee;

2. A medical examination conducted by a medical officer selected by the civil service department or municipal commission having jurisdiction to determine whether employee is fit to perform the duties of his position;

3. The employee has ten working days from the service of the notice to object to the imposition of the proposed leave of absence and request a hearing filed by the employee personally or by first class or registered mail, return receipt requested; and

4. The employee shall be entitled to draw all accumulated, unused sick leave, vacation, over time and other time allowances standing to his credit while on leave.

Noting that "Because of the significant due process implications of [§72], strict compliance with its procedures is required" Judge Stallman said Agency did not comply with the statutory scheme of §72 but rather “placed [Employee] on an involuntary leave of absence with pay instead of a leave of absence without pay, as required under Civil Service Law §72(5)."**

The following omission or errors were noted by Judge Stallman:

1. Agency’s notice that placed Employee on leave does not state the reasons why he was being placed on involuntary leave nor cites Civil Service Law §72(5) as its statutory authority for so doing;

2. The notice fails state "the facts providing the basis for placing Employee on §72(5) leave,” i.e., it neither recites its basis for itse judgment that Employee "is not fit to perform the duties of his position" nor does it contains any reference to Employee’s "dangerousness" or "fitness to perform duties;" and

3. The Agency’s communication did not provide proper notice as required by statute as the letter neither state any reasons nor refer to any determination that Employer's presence on the job would either represent a potential danger to persons or property, or would severely interfere with Agency operations. The court said that “Even if providing a copy of the statute may have satisfied [Agency’s] obligation to inform [Employer] of his statutory rights, Agency still failed to meet the other statutory requirements” and simply providing a copy of the statute did not satisfy the notice requirements of the statute.

Holding that "Due to [Agency’s] failure to comply with the notice requirements of the statute, [Employee's] purported placement on a leave of absence is a nullity." The fact that Agency may have had a rational basis in fact for taking the acts it took is not a defense to the issue of whether or not Agency followed the procedures provided by Civil Service Law §72.

Finding that Employee’s the current leave without pay violative of lawful procedure, Judge Stallman annulled the Agency’s actions and remanded the matter to it “for appropriate action pursuant to Civil Service Law §72.” ***

Judge Stallman then opined that “[Agency] has shown a rational basis for its belief that the [Employee] may be a danger in the work place. Thus, [Agency] need not permit [Employee] to return to the workplace, and Agency is free immediately to begin the Civil Service §72 process anew.”

Judge Stallman also observed  “It may seem anomalous that someone in [Employee’s] position, who has not fully cooperated with the psychological evaluation, can be restored to the payroll even though he is not performing his job duties. The anomaly results from [Agency’s] choice — permitted by [CBA] and statute — to have brought the arbitration in parallel with the purported section 72 involuntary leave proceeding. Each is governed by a different legal framework; each has different standards and procedures. Nevertheless, [Agency has its] remedy: [it] can follow the mandated statutory procedures required by Civil Service Law §72.

* Judge Stallman said "Because of the great degree of deference afforded to arbitration awards, the available grounds for vacating them are extremely limited. Mere errors of law or fact reflected in an arbitration award are insufficient for a court to overturn it, since the courts should not assume the role of overseers to mold the award to conform to their sense of justice.' A court may only disturb the award when it violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on an arbitrator's power.'"

** The court said “Whether the leave with pay was a mistake or an exercise of compassion or both, need not be determined here.”

*** Employee is entitled to back pay to the extent that he was not paid during any period of absence allegedly pursuant to §72.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_24005.htm
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Governor Cuomo announces administration appointments

Governor Cuomo announces administration appointments

Source: Office of the Governor

Governor Andrew M. Cuomo announced the following nomination and new appointments within his administration on January 14, 2014..

Corinda Crossdale

Governor Cuomo will nominate Ms. Crossdale to be Director of the State Office for the Aging (“NYSOFA”). Pending her confirmation by the New York State Senate, Ms. Crossdale will serve as Acting Director, where she will lead NYSOFA’s efforts to improve access to cost-effective non-medical support services for older individuals to maximize their ability to age in their community and avoid higher levels of publicly-financed care. Ms. Crossdale served as Assistant Secretary for Health since February 2013. Ms. Crossdale previously served as Executive Deputy Director of NYSOFA and as Director of the Office for the Aging in Monroe County. Ms. Crossdale earned a Master’s Degree in Social Work from Syracuse University and a B.S. from SUNY Brockport.


Rose Duhan

Ms. Duhan will serve as Assistant Secretary for Health. Ms. Duhan previously served as Director of Government Programs at the New York Health Plan Association. She also served as a Senior Budget Analyst for Albany County. Ms. Duhan earned a Master’s Degree in Public Health Policy and Administration from the University of Michigan and a B.A. from Wesleyan University.


Eric Madoff

Mr. Madoff will serve as Executive Director of the State Insurance Fund. Mr. Madoff previously served as Chief of Staff at the NYS Department of Financial Services, where he was responsible for the operation of the agency and its 1,400 employees. During his distinguished career, Mr. Madoff served as Chief Investment and Strategy Officer for the New York Liquidation Bureau, a Vice President at Goldman Sachs, and a Captain in the U.S. Army, stationed in Greece and Hawaii. Mr. Madoff earned an M.B.A. from Harvard and a B.S. from the United States Military Academy.
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Oral assurance of reemployment given to an educator found sufficient to defeat her claim for Unemployment Insurance benefits

Oral assurance of reemployment given to an educator found sufficient to defeat her claim for Unemployment Insurance benefits

2013 NY Slip Op 07241, Appellate Division, Third Department

A full-time special education teacher [Teacher] was laid off from her position as a full-time special education teacher by her employer during the 2009-2010 academic year. She, however, remained on the employer's payroll at a reduced salary for the following academic year as a coach and per diem substitute teacher.

In June, prior to the end of the academic year, Teacher received a telephone call from the employer offering her a full-time position as a special education teacher for the new academic year at a salary 5% higher than her former full-time employment.

Although Teacher orally accepted the position, she nevertheless filed a claim for unemployment insurance benefits effective July 11. In August Teacher received a memorandum confirming her employment. Ultimately, the Unemployment Insurance Appeal Board ruled that Teacher was ineligible to receive benefits because she had received a reasonable assurance of continued employment pursuant to Labor Law §590(10).*

In addition, the Board said that Teacher was subject to a recoverable overpayment with respect to the unemployment benefits that had been paid to her.

Teacher appealed the Board’s determination.

The Appellate Division affirm the Board’s ruling, explaining "A professional employed by an educational institution is precluded from receiving unemployment insurance benefits for the period between two successive academic years when he or she has received a reasonable assurance of continued employment."

The question of whether a teacher received a reasonable assurance of reemployment for the following academic year is a question of fact and, if the Board's findings that the teacher had, in fact, received such an assurance that is supported by substantial evidence, they will not be disturbed.

Here, said the court, the Board specifically credited teacher's testimony that she was informed prior to the end of the academic year that a position was available at the beginning of the upcoming semester. Although Teacher did not receive formal notice in writing until August, the Appellate Division said that it found no basis to conclude that the oral assurance that teacher received in June was not sufficient and reliable within the meaning of Labor Law §590[10].

* Labor Law §590(10) addresses the terms and conditions of eligibility for unemployment insurance benefits available to professional employee with educational institutions, including the State University of New York, the City University of New York and public community colleges.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07241.htm
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Penalty imposed for absence from work after employee told “she could not take those days off” - termination from employment

Penalty imposed for absence from work after employee told “she could not take those days off”  - termination from employment

2013 NY Slip Op 07912, Appellate Division, Third Department

The school district was closed from April 11 to 15, 2011 for spring recess. Employee, a special education aide, was approved to be absent on April 19 and 20, 2011 for religious observances. In addition, Employee asked for approval from her principal to April 18 and 21, 2011. By taking time off on April 18 and 21, 2011, Castle would effectively be absent from the classroom for two weeks.

As this absence would involve an extension of an existing school holiday, Employee was told that her request required the approval of the District Superintendent. Ultimately Employee request to absent herself on April 18 and 21 was denied and she was notified "that she could not take those days [off] under any circumstances" and she was specifically told  "[D]on't take sick time…”

 Employee went to the Dominican Republic on April 10 through April 22, 2011. While there, Employee notified the school via email that she was taking April 18 and 21, 2011 off as "family sick" days.

The school district subsequently filed Civil Service Law §75 disciplinary charges against Employee alleging misconduct, insubordination and being absent without permission [AWOL]. The hearing officer found Employee guilty of all of the charges filed against her and recommended that she be terminated from her employment with the school district.

The Board of Education adopted the findings and recommendations of the hearing officer and Employee filed an Article 78 petition challenged the decision to dismiss her from her position.

The Appellate Division said that as Employee’s “primary challenge on review is directed to the propriety of the penalty imposed,” its is to determine "whether, in light of all the relevant circumstances, the penalty is so disproportionate to the charged offense[s] as to shock one's sense of fairness" i.e., the “Pell standard.”* Further, said the court, “it is not the role of this Court to either "second-guess the administrative agency or substitute its own judgment for the action taken" even if "a lesser penalty may have been more appropriate."

Addressing Employee’s claim that neither the Hearing Officer nor the Board gave due consideration to the mitigating factors present here — namely, hers consistently positive performance evaluations, her lack of a prior disciplinary record, her family's dependence upon her employment as a source of income/health insurance and the fact that she made arrangements for a substitute to cover her classes on the days she elected to be absent, the court said the record reflects that both the hearing officer and the Board considered these factors.

However, said the Appellate Division, "even a long and previously unblemished record does not foreclose dismissal from being considered as an appropriate sanction" for demonstrated misconduct,” citing Matter of Rogers v Sherburne-Earlville Cent. School Dist., 17 AD3d 823, “particularly where, as here, an employee openly defies an employer's express directive”

Finding that there was ample evidence to support the finding that Employee’s absence "was a well-planned event taken in direct contravention of a direct order," the court sustained the Board’s imposing the penalty of termination. **

* Pell v Board of Education, 34 NY2d 222

** See, also, Decisions of the Commissioner of Education, Decision 14,280, in which the Commissioner considered disciplinary action taken against and educator alleged to have abused the school district’s leave provisions, posted at: http://www.counsel.nysed.gov/Decisions/volume39/d14280.htm

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The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07912.htm

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A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://nypplarchives.blogspot.com/

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Employee’s failure to “opt-out” after reading an e-mail and webpage resulted in an arbitration agreement

Employee’s failure to “opt-out” after reading an e-mail and webpage resulted in an arbitration agreement

Source: Employment News from WKL&B WorkDay

The employer had implemented an arbitration program to resolve disputes between it and its employees.. Its notice to employees included the statement : “If you do not opt out by the deadline, you are agreeing to the arbitration process set forth in the Agreement.”

An employee who received a notice of the arbitration agreement and accessed the relevant “webpage” failed to “opt-out” by not declining to use the arbitration process by the deadline indicated on the web site. The court granted the employer’s motion to compel arbitration of the employee’s discrimination claims, holding that the employee, by failing to opt-out in a timely manner, had agreed to submit the matter to arbitration.

The text of the article by Lorene D. Park, J.D, writing for Wolters Kluwer, is posted on the Internet at:

http://www.employmentlawdaily.com/index.php/news/email-and-webpage-suffice-as-arbitration-agreement-employee-agreed-by-not-opting-out/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+CCH-Workday+%28WKL%26B+WorkDay%29

The text of the federal district court’s decision is posted on the Internet at:

http://hr.cch.com/ELD/KarzonAT&T.pdf

NYPPL Comment: As the employee had alleged that that employer had subjected him to a hostile work environment and unequal discipline, and unlawfully terminated his employment based on his national origin, it could be argued that the employee had a vested statutory right to litigate his complaint[s] that could only be obviated if he affirmatively elected submit the matter to arbitration.  

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Employment Law 2013

Employment Law 2013

Source: FindLaw blog site

Anne C. O'Donnell of Findlaw has authored a summary of significant employment law court rulings handed down during 2013 that sets out "highlights and developments from the land of employment law during the past year."

Ms. O’Donnell’s Review is posted on the Internet at:

http://corporate.findlaw.com/human-resources/2013-year-in-review-employment-law.html?DCMP=NWL-pro_top

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Preclusion bars an individual from relitigating the findings of a disciplinary hearing officer in a subsequent involving the same parties in a different tribunal

Preclusion bars an individual from relitigating the findings of a disciplinary hearing officer in a subsequent involving the same parties in a different tribunal

USCA, Second Circuit, Docket  Nos. 11- 1234 (L), 11-1618 (XAP)

An employee [Plaintiff] was dismissed from his position after a disciplinary hearing conducted pursuant to Civil Service Law §75. He subsequently sued his former employer alleging, among other things, that he was the victim of unlawful discrimination in violation of the federal Civil Rights Act of 1871, 42 USC 1983.

One of the issues addressed by the U.S. Circuit Court of Appeals in the civil rights action was the question of whether the §75 disciplinary hearing officer’s finding that there was a sufficient and legitimate basis for Plaintiff’s termination precluded* the Plaintiff from relitigating those issues in federal district court.

The Circuit Court said that State law governs the preclusive effects of a state administrative agency’s quasi-judicial findings in a federal court and New York courts give quasi-judicial administrative fact-finding preclusive effect where there has been a full and fair opportunity to litigate the issue. This, said the court, applies to findings made by administrative officers after conducting §75 disciplinary hearings.

As is the case with respect to a prior judicial finding of fact, in order to have preclusive effect over a subsequent fact-finding or legal analysis, the prior administrative determination must have resolved the identical issue and the issue must have been actually and finally decided in the prior administrative adjudication.

The appointing authority had adopted the recommendations of the hearing officer, which became the official decision of the agency and Plaintiff decided not to challenge the determination by appealing the decision to a state court or to the responsible Civil Service Commission

However, even if an identical issue was necessarily decided in the prior proceeding, issue preclusion does not apply unless there was a full and fair opportunity for the party against whom preclusion is sought to contest the decision now said to be controlling.** The Court then noted that Plaintiff’s civil rights claims were not considered in the course of his §75 hearing*** and thus that decision did not did not preclude the jury from finding discriminatory conduct on the part of the employer in Plaintiff’s federal civil rights action.

The issue decided by the hearing officer after the §75 hearing concerned the appointing authority’s articulated basis for seeking to terminate Plaintiff. The hearing officer’s ultimate conclusions was that Plaintiff had committed disciplinable misconduct and was incompetent were guided by the particular legal framework and standards applicable in §75 proceedings.

Turning to Plaintiff’s civil rights complaint, the Circuit Court explained that the §75 framework differs substantially from the legal framework for state and federal employment discrimination law applicable to Plaintiff’s federal jury trial.

 
Although the hearing officer’s findings and conclusions concerning the charges of alleged misconduct and incompetence for purposes of §75 filed against Plaintiff precluded him from arguing otherwise at trial, they are not preclusive of any findings that the jury could have made in the course of its deliberations with respect to Plaintiff’s allegations of unlawful discrimination on the part of his former employer being the reason for his termination.

Therefore, in the course of deciding Plaintiff’s §1983 claims regarding whether the appointing authority terminated Plaintiff for legitimate or illegal reasons, the jury was required to accept the hearing officer’s finding that Plaintiff had failed to perform satisfactorily, if at all, some of his duties and responsibilities.

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The bottom line: Applying these principles to this case, the Circuit Court conclude that the jury was precluded from finding that Plaintiff had not actually engaged in the conduct charged against him in the §75 hearing.

As to Plaintiff’s civil rights action, the jury found in his favor and awarded him $304,775 in back pay.

* Essentially preclusion bars the relitigation of the same issue that was the basis of a finding or verdict in an action involving the same parties in subsequent lawsuits involving the same parties.

** In contrast, citing Leventhal v. Knapek, 266 F.3d 64, the Circuit Court said that there is no preclusion in the event there was no “final decision” both because the parties settled before the hearing officer had taken all of the evidence and because the appointing authority had not adopted any recommendation of the hearing officer.

*** The decision notes that Plaintiff “never expressly argued to the hearing officer that he was treated adversely” within the meaning of 42 USC 1983.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/2013a850-216d-4ede-93b6-36484b07172f/4/doc/11-1234_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2013a850-216d-4ede-93b6-36484b07172f/4/hilite/
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Summary of the Governor Cuomo’s 2014 State of the State address

Summary of the Governor Cuomo’s 2014 State of the State address

Source: Office of the Governor

In the past three years, under Governor Cuomo’s leadership, the state has reversed decades of dysfunction to become a model for the nation, and demonstrated the impact an effective and responsive government can have on the lives of its people.  The state has established real fiscal discipline by limiting spending to 2% and passing on-time budgets, added over 380,000 new private sector jobs since 2010, and reduced taxes for middle class New Yorkers to the lowest rates in 60 years. Additionally, we have made significant reforms in our state’s education system and made New York a fairer and safer state for our citizens.

On January 8, 2014, Governor Andrew M. Cuomo delivered his 2014 State of the State address – a sweeping agenda that builds on the immense success we have achieved over the past three years.  To read the full plan, click here.

The State of the State highlighted the Governor’s efforts to:

Continue New York’s successful job growth strategy through property tax relief, business tax cuts, and innovative job creation initiatives;

Transform New York’s schools to provide the highest quality education for all of our children;

Create more progressive, safer, cleaner and fairer communities; and

Reimagine New York State in the wake of recent disastrous storms by improving our disaster response capabilities and hardening our infrastructure to protect against future severe weather.

Under the Governor’s leadership, we have gone from a $10 billion deficit to a $2 billion surplus. Rather than using this revenue to increase spending, the Governor instead proposed to provide additional tax relief for New Yorkers, including significant property tax relief for homeowners and a tax credit for renters; reduced taxes on businesses to make our state more competitive and create jobs; and additional tax cuts designed to help New Yorkers.  Click here to read details of the Governor’s tax relief plan.

The number one priority for New York State continues to be jobs. Through the Governor’s tax relief plan, New York will become more competitive to attract business and investment. The Governor will also continue to encourage targeted investment in New York businesses through key industry initiatives and our Regional Economic Development Councils. Additionally, he proposed to host the Global NY Summit on World Trade and Investment to reach foreign investors to increase investment in New York.  His agenda will also further revitalize upstate communities by continuing to invest in tourism, bringing world-class destination resorts to Upstate NY, and eliminating the corporate income tax rate for Upstate manufacturers.  He also outlined a plan to quickly and efficiently modernize LaGuardia and JFK airports – these gateways to New York are major economic engines and New York deserves globally-renowned, 21^st century airports.

Our next step in transforming our schools is to reinvent our classrooms with new technology – to do this, the Governor proposed launching a $2 billion “Smart Schools” bond referendum to help bring all of New York schools into today’s high-speed, high-tech world.  Additionally, the Governor will build on his programs to reward our most effective teachers, encourage students to study in math, science and engineering, and make full-day pre-K universal in NYS.

The Governor also understands there is more to do to make New York communities more progressive, safer, cleaner, and fairer. The NY Youth Works program has helped 13,000 inner city youth find work, and for 2014, the Governor has proposed increasing the program to further combat the unacceptable unemployment levels in our communities. To ensure New Yorkers have safe, clean, and decent housing, the Governor’s agenda includes preserving or creating 3,000 more units of affordable housing. New York remains one of only two states in which the age at which youths are treated as adults in the justice system is 16 – nearly 40,000 16- and 17-year-olds had their cases handled in adult or criminal court in 2012, which is why the Governor proposed establishing the Commission on Youth, Public Safety & Justice to provide concrete, actionable recommendations regarding youth in New York’s criminal and juvenile justice systems.

Medical research suggests that medical marijuana may help manage the pain and treatment of cancer and other serious illnesses, which is why the Governor has proposed launching a medical marijuana research program at 20 hospitals to evaluate the effectiveness and feasibility of a medical marijuana system. 

To further protect New Yorkers against drunk drivers, the Governor is proposing a three-strikes-and-you’re-out rule. He will also continue to crack down on youth texting while driving.

New York means justice for ALL, which is why the Governor will continue to fight for the Women’s Equality Act.  His agenda also includes protection for students against discrimination and harassment, because New York’s tolerance for racism and discrimination is ZERO.

The Governor has also made restoring New Yorkers’ trust in state government a top priority. This year, he will continue to fight for reforms to ensure New Yorkers have confidence that their elected officials are serving them faithfully. He proposed new anti-bribery and corruption laws, public financing of elections, independent enforcement and oversight at the Board of Elections, and disclosure of outside clients with business before the State.

Understanding that extreme weather is the new reality, we need to reimagine New York for a new reality. Vice President Biden credited the Governor’s storm plan as a model for future recovery efforts. The Governor proposed a $17 billion strategy that will transform New York’s infrastructure, transportation networks, energy supply, coastal protection, weather warning system, and emergency management to better protect New Yorkers from extreme weather. Click here to read more about the Governor’s broad strategy to protect New Yorkers from future extreme weather.

To read the Governor’s full plan, click here. 
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An individual leaving his or her employment in anticipation of being laid-off is ineligible for unemployment insurance benefits

An individual leaving his or her employment in anticipation of being laid-off is ineligible for unemployment insurance benefits

2013 NY Slip Op 07242, Appellate Division, Third Department

The claimant [Claimant] was informed that his department would be downsized. The employer, however, advised the employees in Claimant’s department that a “voluntary separation package” was available but that if an insufficient number of employees did not accept the package, the remainder of the reduction would then be accomplished by involuntary separation.

The employer also advised the employees in the department that were involuntarily separated that they would receive the same benefit package as those accepting the voluntary separation. Although Claimant knew that there was still work available with the employer, he elected to accept the voluntary separation package.

When Claimant applied for unemployment insurance benefit, the Unemployment Insurance Appeal Board ruled that he had voluntarily left his employment without good cause and was therefore disqualified from receiving unemployment insurance benefits.

Claimant appealed but the Appellate Division sustained the Board’s determination, explaining that "Voluntary separation from employment in order to accept an early retirement or separation incentive package when, as here, continuing work is available has been held not to constitute good cause for leaving employment."

Although Claimant testified that he accepted the separation package out of fear of losing his job, Claimant was never informed that he was going to be laid off during the workforce reduction and, in any event, he was told that those that were to be laid off would receive the same benefits package as those that accepted the voluntary separation.

In addition, the court noted that leaving employment in the anticipation of losing one's job in the future is not a departure for good cause.

The decision is posted on the Internet at

http://www.nycourts.gov/reporter/3dseries/2013/2013_07242.htm

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Recent postings on the U.S. Department of Labor’s website

Recent postings on the U.S. Department of Labor’s website

Source: U.S. Department of Labor

The following updates to the U.S. Department of Labor, Office of Administrative Law Judges' website are now available:

:

Decisions of the Administrative Review Board - November 2013

Decisions of the Administrative Review Board - December 2013

Summary of Federal Court Decisions for Calendar Year 2013
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Injured police officer sues persons alleged to have caused her injury pursuant to General Municipal Law §205-e

Injured police officer sues persons alleged to have caused her injury pursuant to General Municipal Law §205-e
2014 NY Slip Op 00077, Appellate Division, First Department

A New York City police officer alleged she was injured in a motor vehicle accident while she was a passenger in an unmarked police car that was being driven by another New York City police officer. She sued under color of General Municipal Law §205-e.

Essentially §205-e of the General Municipal Law gives certain injured police officers the right to sue the person or persons alleged to be guilty of “causing any accident, causing injury, death or a disease which results in death, that occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence” because of the person’s or persons’ failing to comply with the relevant of any law, rule or regulation. The person or persons guilty of said neglect, omission, willful or culpable negligence at the time of such injury is liable to pay damages to the injured officer.

Supreme Court, New York County*denied the defendant’s motion for summary judgment dismissing the General Municipal Law §205-e claims predicated upon their alleged violation of the Vehicle and Traffic Law. The Appellate Division affirmed the Supreme Court’s ruling.

According to the Appellate Division’s decision, the injured officer testified that the officer driving the unmarked vehicle had double-parked the vehicle in order to observe two suspects and that they were sitting at the accident location approximately 15 to 20 minutes before they were struck from behind by a codefendants' minivan.

In addition, said the court, the police officer driving the vehicle had testified that he had double-parked the police vehicle in order to investigate a suspect, which is not an "emergency operation" as defined by Vehicle and Traffic Law § 1104(a).

* The Supreme Court’s decision, setting out the fact in this action, is posted on the Internet at http://www.nycourts.gov/reporter/pdfs/2012/2012_32185.pdf

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_00077.htm
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An employee organization’s duty of fair representation

An employee organization’s duty of fair representation

2013 NY Slip Op 33186(U), Supreme Court, New York County, Judge Donna M. Mills [Not selected for publication in the Official Reports.]

A New York City Department of Education high school teacher [Member], represented for the purposes of collective bargaining by the United Federation of Teachers [UFT], was served with disciplinary charges  pursuant to Education Law §3020-a alleging that she was incompetent.

Member was found guilty of the charges of incompetency following an administrative hearing held pursuant to 3020-a of the Education Law. The penalty imposed: termination from her position.

Following her termination, Member sued the Department of Education, seeking a court order nullifying the hearing officer’s decision to terminate her. Her petition was dismissed on procedural grounds and for lack of merit.*

A year later Member filed a federal lawsuit alleging that her termination was discriminatory. She lost that lawsuit after a jury trial.

Two years later Member sued UFT and several “union lawyers,” blaming them for her termination. This complaint was dismissed as well.

Next Member commenced this action, pro se. 

According to the decision, Member’s complaint appeared to be in the nature of an allegation that UFT breached its duty of fair representation. UFT filed a motion to dismiss for failure to state a cause of action.

NYS Supreme Court Judge Donna M. Mills, in considering UFT’s motion, applied the following guidelines in considering the merits of UFT’s motion:

1. The court must determine whether from the four corners of Member’s pleading “factual allegations are discerned which taken together manifest any cause of action cognizable at law.”

2. While the allegations in Member’s complaint are to be accepted as true when considering UFT’s motion to dismiss, “allegations consisting of bare legal conclusions, as well as factual claims flatly contradicted by documentary evidence, are not entitled to any such consideration.”

3. New York case law recognizes the existence of a duty of fair representation on the part of public sector unions predicated on their role as exclusive bargaining representatives of its members in the negotiating unit.

4. An employee organization breaches its duty of fair representation “only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.”

Judge Mills explained that whether that duty has been breached in a particular case is “essentially a factual determination.” Here, said the court, Member’s complaint fails to set forth facts establishing that Member‘s alleged injury arose out of UFT‘s role as the exclusive bargaining representative of the collective bargaining unit in which Member is a member. 

In the words of the court, “Member‘s allegations are conclusory, and lack a factual basis to state a cause of action.”Accordingly, Judge Mills dismissed Member‘s complaint for failure to state a cause of action.

Granting UFT’s motion for summary judgment dismissing Member’s petition, Judge Mills noted that the allegations in the complaint that preceded 2012 were disposed of in a decision by State Supreme Court Justice, Eileen A Rakower, dated December 23, 2011, and reported in 26 Misc.3d 1208(A); 93 A.D.3d 534

The decision is posted on the Internet:

http://www.nycourts.gov/reporter/pdfs/2013/2013_33186.pdf
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Police officers attain detective status by operation of law

Police officers attain detective status by operation of law

Sykes v City of Niagara Falls, 2013 NY Slip Op 08684, Appellate Division, Fourth Department

Certain police officers serving in the Niagara Falls Police Department (NFPD) Crime Scene Unit filed a petition pursuant to CPLR Article 78 proceeding seeking a court order directing the Department to designate them detectives pursuant to Civil Service Law §58(4)(c)(ii).

§58(4)(c)(ii) of the Civil Service Law, in pertinent part, provides: “Notwithstanding any other provision of law, in any jurisdiction other than a city with a population of one million or more or the state department of corrections and community supervision … any person who has received permanent appointment to the position of police officer, correction officer of any rank or deputy sheriff and is temporarily assigned to perform the duties of detective or investigator shall, whenever such assignment to the duties of a detective or investigator exceeds eighteen months, be permanently designated as a detective or investigator and receive the compensation ordinarily paid to persons in such designation.”

Supreme Court granted the petition, concluding that the officers had been temporarily assigned to the same duties as detectives in the NFPD for eighteen months or more and thus were entitled to be “permanently designated” as detectives as required by the statute.

The Appellate Division affirmed the lower court’s ruling, finding that viewing the evidence in the light most favorable to the prevailing officers, Supreme Court’s decision was supported by a fair interpretation of the evidence.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08684.htm

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LIMITATIONS ON SICK LEAVE

LIMITATIONS ON SICK LEAVE

Economico v Village of Pelham, 50 N.Y.2d 120

Notwithstanding a contract provision providing for "unlimited sick leave with pay" for police officers unable to work due to non-service related disabilities, the State Court of Appeals held that a police officer so disabled could be terminated pursuant to Section 73 of the Civil Service Law.

The Court distinguished this case where the Court held there was no prohibition against the establishment of a limited job security clause in a collective bargaining agreement. The State's interest in maintaining the efficiency and continuity of its civil service was held a substantial one and Section 73 limits the employee's right to be continued on the payroll without limitation if triggered by the sound discretion of the appointing authority, even in the face of a contract provision to the contrary.

The Court, in another case decided the same day (Dolan vs Whalen) held that a hearing in connection with termination pursuant to Section 73 is required if there is "some factual dispute impacting upon the employer's right to discharge" the employee. Of course the police officer injured in the line of duty is entitled to unlimited sick leave under the General Municipal Law, Sections 207-c(1), which leave is at full salary until the disability ceases.

In this latter case, the employee cannot be required to use any leave credits available to him (Op. St. Comp. 79-356). The Comptrollers Opinion noted that "a municipality and its policemen may not agree through collective bargaining that a policeman injured in the performance of his duties apply accumulated sick leave or vacation credits to receive the full amount of his salary during the period of his disability.

LIMITATIONS ON SICK LEAVE

LIMITATIONS ON SICK LEAVE

Economico v Village of Pelham, 50 N.Y.2d 120

Notwithstanding a contract provision providing for "unlimited sick leave with pay" for police officers unable to work due to non-service related disabilities, the State Court of Appeals held that a police officer so disabled could be terminated pursuant to Section 73 of the Civil Service Law.

The Court distinguished this case where the Court held there was no prohibition against the establishment of a limited job security clause in a collective bargaining agreement. The State's interest in maintaining the efficiency and continuity of its civil service was held a substantial one and Section 73 limits the employee's right to be continued on the payroll without limitation if triggered by the sound discretion of the appointing authority, even in the face of a contract provision to the contrary.

The Court, in another case decided the same day (Dolan vs Whalen) held that a hearing in connection with termination pursuant to Section 73 is required if there is "some factual dispute impacting upon the employer's right to discharge" the employee. Of course the police officer injured in the line of duty is entitled to unlimited sick leave under the General Municipal Law, Sections 207-c(1), which leave is at full salary until the disability ceases.

In this latter case, the employee cannot be required to use any leave credits available to him (Op. St. Comp. 79-356). The Comptrollers Opinion noted that "a municipality and its policemen may not agree through collective bargaining that a policeman injured in the performance of his duties apply accumulated sick leave or vacation credits to receive the full amount of his salary during the period of his disability.

Determining an educator’s seniority for the purposes of layoff and reinstatement

Determining an educator’s seniority for the purposes of layoff and reinstatement

Appeal of Debra Gordon from action of the Board of Education of the PotsdamCentral School District, et al, Decisions of the Commissioner of Education, Decision No. 16,582

Due to budgetary constraints, the Board of Education of the Potsdam Central School District [Board] found it necessary to abolish a reading teacher position* effective July 1, 2011. By letter dated May 26, 2011, the superintendent notified Debra Gordon that her employment would be discontinued effective July 1, 2011 and that she would be placed on a preferred eligible list for reappointment to a position in the reading tenure area.

Gordon challenged the Board’s decision excessing her based on its determination that she was the least senior reading teacher.

Gordon, a certified reading teacher, was appointed by the Board to a reading teacher position effective September 1, 2007. Necessary party Paulette Whalen, a certified reading teacher and teacher of the deaf and hearing impaired, was appointed by the Board as a teacher in both tenure areas effective September 1, 2006.

In May 2011 when the position of reading teacher was abolished, Gordon and Whalenwere the two least senior reading teachers. Gordon, contending that she was improperly terminated because she had accrued more seniority in the reading tenure area than Whalen, appealed the Board’s determination to the Commissioner of Education.

Gordon argued that The Board improperly credited Whalen with working 40% or more of her time in the reading tenure area during the 2006-2007 and 2007-2008 school years when Whalen was actually working in the tenure area of teacher of the deaf and hearing impaired. Gordon asked the Commissioner to direct her reinstatement to her former position with back salary and benefits.**

The Board, on the other hand, contended that Whalen had greater seniority than did Gordon based on her spending “at least 40% of her time working in the tenure area of reading during the 2006-2007 and 2007-2008 school years” and, in any event, Gordon’s appeal was untimely.

Here the issue to be resolved concerned when the statute of limitations began to run. Gordon argued that the 30-day period began to run from the date that another person commences service in the position at issue. The Board on the other hand, claimed that the period should be calculated from, at the latest, the effective date of Gordon’s termination.

The Commissioner decided that in order to provide clarity, a clear articulation of the rule to be applied in such cases was warranted and explained:

a. In cases in which the teacher claims that his or her services have been discontinued in violation of Education Law §§2510(2) and 3013(2) because he or she is not the least senior teacher in the tenure area of the position, the 30-day time period for commencing an appeal under Education Law §310 begins on the effective date of the abolition of the position; and

b. Where the wrong alleged by the petitioning teacher is not that he or she should have been retained and another teacher having less seniority should have been excessed but rather that the appointment of another teacher from the preferred list was in violation of law, i.e., the reinstated teacher had less seniority than the petitioning teacher, such a claim would be timely if commenced within 30 days of the date on which the other teacher commenced service in a position to which the petitioner alleges he or she is entitled.***

However, as explained below, this was a distinction without a difference insofar as Gordon was concerned as the Commissioner determined that [a] Gordon was the less senior teacher insofar as her being laid off from her position rather than Whalen and [b] Gordon was the less senior teacher had she and Whalen both been laid off and Whalen appointed to an appropriate vacancy from the preferred list rather than she.

Addressing the merits of Gordon’s appeal, the Commissioner observed that Education Law §§2510(2) and 3013(2) provide that when a board of education abolishes a position, “the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.” 8 NYCRR 30-1.1(f) of the Rules of the Board of Regents defines seniority as follows: Seniority means length of service in a designated tenure area, rather than length of service in the district; such service need not have been consecutive but shall during each term for which seniority credit is sought, have constituted a substantial portion of the time of the professional educator.

As used in Part 30 of the Rules of the Board of Regents, the term “substantial portion” means 40% or more of the total time spent by a professional educator in the performance of his or her duties, exclusive of time spent in preparation, monitoring or in co-curricular activities (8 NYCRR §30.1[g]).

Thus, the principal issue in this appeal was whether or not Whalen spent 40% or more of her time performing duties in the reading tenure area during the 2006-2007 and 2007 - 2008 school years and Gordon had [1] the burden of demonstrating a clear legal right to the relief requested and [2] the burden of establishing the facts upon which she sought relief.

After considering the evidence presented by the parties in support of their respective positions, the Commissioner said as pertains to the 2006-2007 school year, he disagreed with The Board’s conclusion that Whalen’s time was spent primarily in the tenure area of reading, finding that for the 2006-2007 school year only 10% of Whalen’s time should have been credited to the reading tenure area.

As to the 2007-2008 school year, the Commissioner said that he although he did not agree with the Board’s finding that Whalen spent 100% of her time during the 2007-2008 school year in the reading tenure area, he did find that she spent at least 55% of her time in the reading tenure area and therefore gained a year of seniority for the 2007-2008 school year in the reading tenure area.

In view of the Commissioner’s determination that Whalen did not spend at least 40% of her time in the reading tenure area for the 2006-2007 school year, but did so for the 2007-2008 school year, the Commissioner ruled that Gordon and Whalen both had the same number of years of seniority in the reading tenure area.

Citing Matter of Schoenfeld, 98 AD2d 723, the Commissioner concluded that when full-time service is equal, the teachers’ respective appointment dates are to be used for determining seniority as the “tie-breaker.” The Commissioner further noted that in Appeal of Kulick, 34 Ed Dept Rep 613, Commissioner’s Decision No. 13,428, it was held that “In determining the order of seniority of teachers within a district ‘... it is clear that the teacher whose appointment occurred first had a longer seniority ... than the teacher who was appointed upon a later resolution.’”

Whalen’s appointment date was effective September 1, 2006, while Gordon’s was September 1, 2007. Thus, concluded the Commissioner, as of July 1, 2011, the date the Board eliminated a reading teacher position, Gordon was the reading teacher with the least seniority.

The bottom line: Although the Commissioner found that The Board’s determination regarding the time spent by Whalen in the reading tenure area improper in part, she, in fact, was deemed to have greater seniority than Gordon.

The Commissioner then directed The Board to recalculate Whalen’s seniority rights in the reading and teacher of the deaf and hearing impaired tenure areas in accordance with his decision.

* The Commissioner noted that although both Gordon and The Board refer to the position at issue as that of a “reading teacher,” in accordance with §30-1.8 of the Rules of the Board of Regents this special subject tenure area is properly entitled “remedial reading.”

** In the event an employee is improperly laid off from his or her position the employer is required to reinstate the individual to his or her former position with back salary and benefits.

*** Finding that there was conflict in the past Commissioner’s decisions addressing these issues, the Commissioner concluded that “a teacher could not know with certainty whenthey must commence an appeal challenging the abolition of a position.” Under the circumstance, the Commissioner said that he would “excuse a delay in commencing an appeal more than 30 days after the effective date of the abolition of a position” and would excuse the delay in Gordon’s filing of her appeal “and any other similar appeal challenging an abolition of a position pursuant to Education Law §§2510 or 3013 that is pending before me on the date of this decision.”

The decision is posted on the Internet at:
 http://www.counsel.nysed.gov/Decisions/volume53/documents/d16582.pdf

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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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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending January 4, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending January 4, 2014

Click on text highlighted in color  to access the full report

State Comptroller DiNapoli Releases Year–End Accomplishments

The New York State Common Retirement Fund reached an all–time high of $160.7 billion in 2013, State Comptroller Thomas P. DiNapoli noted in a release dated January 3, 2014 summarizing his office’s major accomplishments in 2013. Other notable highlights include several convictions from the fight against public corruption, statewide efforts to deal with local fiscal stress, returning $412 million in lost money to New Yorkers through the Unclaimed Funds program, and his continued push for campaign finance reform.

DiNapoli Appoints Tina Kim Deputy for State Government Accountability

State Comptroller Thomas P. DiNapoli announced Tuesday that he has appointed Tina Kim as deputy comptroller for state government accountability. Most recently, Kim served as deputy comptroller for audit for the New York City Comptroller’s office. She will begin her new position in early January.

DiNapoli Audit Finds Amsterdam’s Finances Hampered by Poor Recordkeeping

Officials in the City of Amsterdam are unable to properly assess and monitor the city’s financial condition due to inadequate, inaccurate and incomplete accounting records, according to an auditreleased January 3, 2014 by State Comptroller Thomas P. DiNapoli.
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Appointment and removal of town court clerks

Appointment and removal of town court clerks

Reno v Van Voris, 170 Misc.2d 187, 230 A.D.2d 296

Section 20.1(a) of the NYS Town Law provides that the clerk of a town court "shall be employed and discharged from employment only upon the advice and consent of the town justice or justices." The Reno decision indicates that this 1990 amendment to the Town Law [Chapter 252, Laws of 1990] is to be strictly applied.

Roberta Reno was appointed as town court clerk by Town Justice Charles Assini, Jr., in 1988 and "was solely under his supervision."

In March 1996 Town of East Greenbush Town Justice Catherine Cholakis, the other of the Town's two sitting Town Justices, wrote the Town Supervisor requesting that Reno be terminated because of her alleged failure to correct deficiencies noted in an audit by the State Comptroller. This resulted in the Town Board's voting to suspend Reno without pay "until further notice" the following June.

Reno successfully challenged this action by the Board, winning a court order directing her reinstatement with back salary and benefits.

The Appellate Division affirmed, agreeing with the lower Court that Reno's unconditional and indefinite suspension without pay constituted a "discharge" within the meaning of Section 20.1(a).

The Appellate Division said that the legislative intent in amending Section 20.1(a) was to "blend the actions of the Town Board with the wishes of the Town Justice to whom the Court Clerk reports and to provide Town Justices with control over the selection and removal of their Court Clerks." As Reno was solely responsible to Justice Assini at the time of her suspension, the Court said that Assini's consent was required before the Town Board could be authorized to discharge her.
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State Comptroller is required to correct any errors affecting a retiree's benefits upon the discovery of the error

State Comptroller is required to correct any errors affecting a retiree's benefits upon the discovery of the error
2013 NY Slip Op 07238, Appellate Division, Third Department

A police officer [Officer] submitted an application for disability retirement benefits. While his application was pending, Officer’s employer filed disciplinary charges against him and, on November 19, 2007, he was terminated by the employer.

Officer’s application for disability retirement benefits was approved on August 12, 2008 and his effective retirement date was set as November 17, 2007, the date of Officer's last day on the employer’s payroll as reported by the employer.

However, after receiving additional information from the employer indicating that Officer had, in fact, remained on the employer’s payroll through November 19, 2007, the Retirement System adjusted Officer’s retirement date to November 20, 2007. 

Following an unsuccessful administrative appeal seeking to reinstate November 17, 2007 as the effective date of his retirement for disability, Officer filed an Article 78 petition seeking a court order vacating the Comptroller’s determination.

The Appellate Division affirmed the administrative determination noting that Comptroller “is vested with the exclusive authority to determine applications for retirement benefits and such determination, if supported by substantial evidence, must be upheld.”  Citing 2 NYCRR 309.6, the court said that the effective date of a member's disability retirement is either [1] "on the date of filing of such disability retirement application" or [2] "on the day after the last date on which the member receives salary, whichever is later."

As the Comptroller is required to correct any changes or errors affecting a retiree's benefits upon discovery thereof, notwithstanding Officer's claim that his effective retirement date was changed as a result of actions taken by the employer in retaliation for a civil rights claim that he had asserted against it, the Appellate Division held that the Comptroller is entitled to rely upon the payroll information provided by the employer.

As the record reflected Officer's termination date from the payroll as November 19, 2007, the Comptroller’s determination was held to be supported by substantial evidence and Appellate Division said that it found no basis to disturb it.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07238.htm

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Providing the names and home addresses of employees of a private contractor to an employee organization to be determined by applying a “balancing test” to avoid an "unwarranted invasion" of privacy

Providing the names and home addresses of employees of a private contractor to an employee organization to be determined by applying a “balancing test” to avoid an "unwarranted invasion" of privacy
Massaro v New York State Thruway Auth., 2013 NY Slip Op 07234, Appellate Division, Third Department*

A union official submitted a Freedom of Information Law [FOIL] request to the New York Thruway Authority in an effort to “ensure that nonunion contractors comply with the prevailing wage law” (see Labor Law §220). Among other things, the official asked the Thruway to provide certified payroll records of a private nonunion contractor relating to work it performed on a public works project and the names and home address of the employees performing the work employed by the nonunion contractor.

The Thruway granted the official's request in part, providing employee titles and corresponding wage rates that were paid, redacting the employees' names, home addresses and Social Security numbers. The Thruway contended that providing the names and related information of the employees would constitute an unwarranted invasion of personal privacy within the meaning of FOIL.

After an unsuccessful administrative appeal, the official filed an Article 78 petition in Supreme Court seeking a court order directing the Thruway to provide him with the private employer’s employees' names and home addresses. Supreme Court dismissed the petition and official appealed that court’s ruling.

The Appellate Division, pointing out that the personal privacy exemption set out in Public Officers Law §87 [2] [b]) provides “a nonexhaustive list of categories of information that falls within the exemption.”

Where, however, none of the categories of exemption specifically cover the information demanded, the court said that the issue of whether there is an "unwarranted invasion" of privacy is decided "by balancing the privacy interests at stake against the public interest in disclosure of the information."

As to the balancing analysis, the Appellate Division said that “An unwarranted invasion of personal privacy has been characterized as that which ‘would be offensive and objectionable to a reasonable [person] of ordinary sensibilities.'  Here the official wishes to obtain the names and home addresses so that it can contact employees of the nonunion contractor to find out if they were paid as reported by their employer.”

In the words of the Appellate Division, “The scenario of nonunion employees of a nongovernment employer being contacted at their homes by someone from a union who knows their names, their home addresses, the amount of money they reportedly earn, and who wants to talk about that income would be, to most reasonable people, offensive and objectionable.” This, the court characterized as “a significant privacy interest.” Citing United States Dept. of Defense v Federal Labor Relations Auth., 510 US 487.

Rejecting the union official’s argument that the release of this information to his union is in the public interest since the union is attempting to ensure that the contractor paid appropriate wages and that the union is gathering necessary data should an underpaid employee desire its representation under Labor Law § 220-g, the Appellate Division said that the redacted payroll records that the Thruway provided – indicating employee titles and corresponding wage rates — provide “sufficient information (absent fraudulent record creation by a contractor) to confirm whether the contractor complied with wage requirements.”

Further, explained the court, in the event fraudulent or any other noncompliant conduct is suspected, an investigation may be initiated upon request to the appropriate government official as Labor Law §220 (7) provides that a governmental fiscal officer "shall on a verified complaint in writing of any person interested or of [a union] [or] may on his [or her] own initiative cause a compliance investigation to be made to determine whether the contractor . . . has paid the prevailing rate of wages."

The Appellate Division’s conclusion” “Notwithstanding the FOIL presumption of access to information gathered by the government and the important policy of ensuring payment of prevailing wages, the significant personal privacy interests implicated here prevail, particularly since the information already provided to petitioner should be sufficient to ensure compliance; in any event, other avenues are available to ensure compliance without invading the privacy of the employees of the nonunion contractor by disclosing their names and home addresses.”

* See also Stevens v New York State Thruway Authority, 2013 NY Slip Op 07235, Appellate Division, Third Department, a case involving essentially the same issues, posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_07235.htm

The Massaro decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07234.htm
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