The Freedom of Information Law typically does not require an entity to create records not in existence in order to satisfy a FOIL request

The Freedom of Information Law typically does not require an entity to create records not in existence in order to satisfy a FOIL request

2014 NY Slip Op 03031, Appellate Division, First Department

An individual [Individual] submitted a FOIL request for certain information. Supreme Court dismissed his Article 78 petition and Individual appealed.

The Appellate Division sustained the lower court’s decision, explaining that the records sought by Individual had been destroyed in accordance with the custodian’s records retention schedule.*

Citing Public Officers Law §89[3][a], the Appellate Division said that "Nothing in [the Freedom of Information Law (FOIL) shall be construed to require any entity to prepare 'any record not possessed or maintained by such entity' except for certain categories of records not at issue here."

* 8 NYCRR N 188, State Government Archives and Records Management, sets out the Regulations of the Commissioner of Education addressing the retention and destruction of State records.
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A individual must be a “whistle blower” within the meaning of New York City’s Administrative Code to claim its protection against adverse personnel action

A individual must be a “whistleblower” within the meaning of New York City’s Administrative Code to claim its protection against adverse personnel action

2014 NY Slip Op 03921, Appellate Division, First Department

A New York City School District employee [Petitioner] retired alleging that he was subjected to disciplinary action because he was a “whistle blower.” He claimed that he lost in excess of $27,000 in stipends from a fellowship program as a result of School District’s adverse personnel actions, which actions he contended were in violation of New York City’s Administrative Code §12-113.

Supreme Court, New York County dismissed Petitioner’s Article 78 complaint  seeking to annul the determination of the Special Commissioner of Investigation for the New York City School District that Petitioner was not a whistleblower within the meaning of the Administrative Code and dismissed the proceeding.

The Appellate Division unanimously affirmed the lower court’s ruling, noting however, that the matter was not moot notwithstanding Petitioner’s retirement because of his claimed loss of $27,000 or more.

However, said the court, it found that [1] Petitioner’s initial complaints had not been reported to the appropriate officials by Petitioner as set out in Administrative Code  12-113(a)(6)* and [2] the School District’s determination regarding Petitioner’s subsequent compliant did not result in adverse personnel actions as it was rational and neither arbitrary nor capricious, explaining that the filing of an inaccurate report of misconduct against an employee is not an adverse personnel action.

The Appellate Division also held that Petitioner's temporary reassignment to another position prior to his retirement resulted from earlier sustained charges of misconduct.

*  §12-113, captioned “Protection of sources of information,” provides that the relevant information is to reported to the agency head, a deputy agency head or such other person designated by the head of the agency to receive a report by an employee of the agency relating “information concerning conduct which [the employee] knows or reasonably believes to involve corruption, criminal activity, conflict of interest, gross mismanagement or abuse of authority by another city officer or employee, which concerns his or her office or employment, or by persons dealing with the city, which concerns their dealings with the city.

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State Employees’ Retirement System member must have been a public officer or employee earlier in order to “buy back” service credit for such service

State Employees’ Retirement System member must have been a public officer or employee earlier in order to “buy back” service credit for such service 
2014 NY Slip Op 03904, Appellate Division, Third Department

A member [Member] of the NYS Employees' Retirement System sought to "buy back" member service credit based on his service as a hearing examiner with the City of New York. The Comptroller determined that Member was not an employee of the City and thus was ineligible to purchase service credit for that work.

In an earlier action* Member contended that he served as an “officer” of the City of New York and the matter was remanded to the Comptroller to address that claim. The Comptroller rejected Member’s claim that he was a public officer by reason of his so serving as a hearing examiner and Member appealed that determination as well.

The Appellate Division affirmed the Comptroller’s decision, explaining that the Comptroller "is charged with the responsibility of determining service credits for retirement purposes and his determination will be upheld if rational and supported by substantial evidence.” Further, said the court, Member had the burden of establishing his entitlement to the additional service credit.

The service credit question's result was dependent on whether Member had been engaged in "previous service with a public employer” that would have been creditable in one of the public retirement systems of the State, in this instance the New York City Employees' Retirement System. In other words, Member would have had to have been eligible for membership in NYCERS based on his work as a hearing examiner being deemed service as an officer of the City.

The City of New York Law Department, however, had taken the position that hearing examiners were neither city officers nor employees and NYCERS had determined that hearing examiners were not city officers such as to render them eligible for membership. The Comptroller relied upon these determinations in formulating his decision.

The court commented that even if the Comptroller had not relied on the views of the City’s Law Department and NYCERS in this regard, substantial evidence nevertheless supported the Comptroller's finding that Member was not a city officer entitled to claim prior service credit. Member, said the court, did not demonstrate that he served as a public officer in that he failed to show that he had been appointed for any specific length of time, was "a manager or policy maker," had filed a financial disclosure statement and that he had taken or filed an oath of office.

Although evidence in the record could support a different result, the Appellate Division concluded that there was sufficient substantial evidence in the record to support the Comptroller's determination that Member was not entitled to “prior service credit.”

* See 81 AD3d 1156.

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Albany Law School offers Continuing Legal Education [CLE] courses on line

Albany Law School offers Continuing Legal Education [CLE] courses on line

Attorneys in New York state admitted to practice for more than two years are able to take their CLE courses by viewing educational sessions online by approved CLE providers.

Albany Law School, an accredited CLE provider in New York state, now has a library of interesting CLE programs for viewing online, given by leaders in the field, including Albany Law faculty, alums and other experts.

Sample sessions include:

Professor Robert Heverly’s lively discussion of the ethical issues related to attorney use of social media

Professor Michael Hutter’s engaging overview of recent U.S. Supreme Court decisions on personal jurisdiction

Catherine Hedgeman's explication of recent updates to New York’s Not-for-Profit Corporations Law

Professor Dorothy Hill and Professor Nancy Nancy Maurer's training on how to supervise law students

CLE sessions are available for download for $25 per credit hour and no separate membership or affiliation with Albany Law School is required to access the courses.

Click here to View the full list of available sessions and instructions for download

For more information or questions regarding the online CLE program, please contact Lisa Rivage at lriva@albanylaw.eduor 518-472-5888.

Additional course will be available soon. To receive notice when new courses are available, please email Amy Gunnells at agunn@albanylaw.edu.

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Volunteer firefighters must be afforded due process in disciplinary proceedings

Volunteer firefighters must be afforded due process in disciplinary proceedings

A volunteer firefighter was suspended from active duty with the Fire Company for a period of one year, which subsequently was reduced to a suspension from active duty for a period of six months and a suspension from social functions for another period of six months.

The firefighter filed a CPLR Article 78 petition contending that the Fire Company's disciplinary proceeding failed to comply with the requirements of Civil Service Law §75 with respect to his status as an exempt volunteer firefighter.* Supreme Court remitted the matter to the Fire Company to conduct a hearing in accordance with Civil Service Law §75 and for a new determination thereafter.

The Appellate Division affirmed the result but in so doing noted the relevant provision of law was General Municipal Law §209-l and not the Civil Service Law §75.

The Appellate Division explained that "Civil Service Law §75(1)(b) provides certain procedural protections to permanent employees in the competitive class and to permanent appointee in the classified service not in the competitive class who are also exempt volunteer firefighters. The statute provides these protections to all individuals employed in classified civil service positions who fit within its definitions."

Although in this instance the firefighter was an exempt volunteer firefighter, he has not been subjected to disciplinary action by as an employee of the State as the employer or as an employee of a political subdivision of the State. The court rejected the firefighter’s argument that his status as an exempt volunteer firefighter, standing alone, entitled him to the protection of Civil Service Law §75.**

However, the Appellate Division found “no merit” in the Fire Company’s contention that it did not have to comply with the hearing requirements of General Municipal Law §209-l because this matter did not involve the firefighter's "removal" from the Fire Company. 

The court said "[A]; volunteer firefighter must be afforded due process in disciplinary proceedings” where he or she has been subjected to disciplinary action initiated by his or her Fire Company, citing Matter of Greene v Medford Fire Department, 6 AD3d 705. This, said the court, is true whether the penalty that is ultimately imposed entails the firefighter's permanent removal from his or her position, or a suspension from the position.”

The court pointed out that General Municipal Law §209-l(5) provides that "[t];he officer or body having the power to remove the person charged with incompetence or misconduct may suspend such person after charges are filed and pending disposition of the charges, and after the hearing may remove such person or may suspend him or her for a period of time not to exceed one year" (emphasis supplied by the court).

The Appellate Division found that the plain meaning of this provision is that a volunteer firefighter may only be temporarily suspended, without a hearing, from the time that the charges are filed until the ultimate disposition of the charges, but that a hearing is required to actually dispose of the charges, and that a final penalty of suspension, not to exceed one year, may only be imposed after that hearing. Accordingly, the Fire Company was required to comply with the procedures set our in General Municipal Law §209-l

Thus, the Appellate Division ruled that Supreme Court “properly remitted the matter to the Fire Company for further proceedings, including a hearing on the charges preferred against the [firefighter], and a new determination thereafter.

* The qualifications for certification as an exempt volunteer firefighter are set out in §200 of the General Municipal Law. General Municipal Law §202 provides for a certificate to be issued to a person qualified to be an exempt volunteer firefighter.

** See Civil Service Law §75[1];[b]).

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