Wrongfully obtaining and divulging confidential information from a department’s computer database

Wrongfully obtaining and divulging confidential information from a department’s computer database
2014 NY Slip Op 04421, Appellate Division, First Department

In this appeal the Appellate Division affirmed the termination of a police officer [Officer] but awarded the individual “back pay for the period in which he was suspended without pay beyond the 30 days permitted by Civil Service Law §75(3-a).”*

Following a disciplinary hearing, the hearing officer sustained three of the charges filed against Officer: that Officer wrongfully accessed and subsequently obtained confidential information from the agency's Computer System and which was not related to the official business of the Department; Officer did wrongfully divulge or discuss official Department business without permission or authority to do so; and that “with intent to obtain a benefit or deprive another of a benefit, ... [Officer] obtained confidential information” from the Computer System, which was not related to the official business of the Department and divulged said information to another police officer.

The Appellate Division rejected Officer’s argument that his actions did not constitute official misconduct because there is no evidence that he acted "with intent to obtain a benefit or deprive another person of a benefit" (see Penal Law §195.00[1]).

The court explained that the term “Benefit” means “any gain or advantage to the beneficiary and includes any gain or advantage to a third person pursuant to the desire or consent of the beneficiary," citing Penal Law §10.00[17]. This "includes more than financial gain and can encompass political or other types of advantage."

Here, said the Appellate Division, it can be reasonably inferred that Officer intended to obtain a benefit for his fellow officer and friend within the meaning of the statute when he accessed confidential information in the computer system and confirmed for the friend the scope of the allegations of the complainant in the disciplinary investigation against him.

Under the circumstances, the Appellate Division held that “The penalty of termination is not so disproportionate to the offense as to be shocking to one's sense of fairness,” citing Kelly v Safir, 96 NY2d 32,

Officer, said the court, “betrayed his position of trust as [an individual] who was privy to very sensitive information, and breached his confidentiality agreement with the police department, which stated that the wrongful disclosure of information would not be tolerated by the department and that divulging or discussing official department business except as authorized, constituted prohibited conduct and might constitute official misconduct under Penal Law §195.00(1).

* The appointing authority conceded that Officer was entitled to back pay for the period of time for which he was suspended without pay in excess of 30 days.

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Individuals applying for State Civil Service Examinations must use a new application form dated (6/14)

Individuals applying for State Civil Service Examinations must use a new application form dated (6/14)

Source: New York State Department of Civil Service General Information Bulletin No. 14-02

Scott DeFruscio, Director of Staffing Services, New York State Department of Civil Service has advised that the Department has revised its examination application, NYSAPP, to allow the Department to collect the necessary information to determine if disabled veterans are eligible for additional credits for subsequent open-competitive or promotion appointments, as provided for in an amendment to Article 5, §6 to the New York Constitution.

For more information on the amendment, see GIB #13-01.

Revisions have been made in the online application as well as the PDF version of the application available for candidate use from the Department’s web site. In addition, most special applications available to candidates from the Department’s web site have also been revised. It is anticipated that all special applications will be revised and reissued by the end of July 2014.

Agencies having any announced examinations requiring the use of a special application and need more specific information concerning the status of your agency’s special examination application, are requested to contact its Staffing Services Representative.

Candidates must use the new application dated (6/14) to apply for any future examinations. The Department requests that any copies of previous versions of State applications be destroyed and that agencies request a supply of new form using the information below.

Agencies requiring a supply of paper copies of Examination Applications should send an email to printshop@cs.ny.gov. Requesters should enter “Exam Application Order” in the subject line. The body of the email should include

:

1. The name of the person to whom the applications are to be sent;

2. The number of applications needed; and,

3. A mailing address where the applications should be sent.

The Department advises that when ordering copies of applications, agencies should allow three weeks for delivery.
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An administrative body may overrule its administrative precedent

An administrative body may overrule its own administrative precedent

2014 NY Slip Op 04550, Appellate Division, Third Department

In this appeal one of the issued concerned an administrative agency, the Workers’ Compensation Board, overruling its own precedent. The Appellate Division sustained the Board’s action, noting that in so doing:

1. The Board discussed its precedent at length and overruled it;

2. The Board was free to overrule its precedent given that it "set forth its reasons for doing so;" and

3. The Board had considered appropriate statutory and judicial authorities in concluding that its precedent should be overruled.

The Appellate Division said that the interpretation of the relevant Workers' Compensation Law presents a question "of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent" and thus it need not defer to the Board's reading of the statute. However, said the court, “We nevertheless agree with the Board's present interpretation thereof.”

Unemployment insurance claim filed by terminated employee may be denied on the basis of the findings of a disciplinary arbitrator under the doctrine of “collateral estoppel”

Unemployment insurance claim filed by terminated employee may be denied on the basis of the findings of a disciplinary arbitrator under the doctrine of “collateral estoppel”

2014 NY Slip Op 04546, Appellate Division, Third Department

An employee [Claimant] challenged his termination from his position in accordance with the disciplinary grievance procedure set out in the relevant collective bargaining agreement. After a full evidentiary arbitration hearing, at which Claimant was represented by counsel, the arbitrator determined that Claimant was guilty of the charges filed against him and that there was “just cause” for his dismissal from his position.

Claimant then applied for unemployment insurance benefits. The Unemployment Insurance Appeal Board, adopting the arbitrator's findings of fact and denied Claimant's application for unemployment insurance benefits. The Board ruled that Claimant had lost his employment due to disqualifying misconduct within the meaning of the Unemployment Insurance Law.

Contending that the Board erred in giving “collateral estoppel effect" to the arbitrator's factual findings and that the Board's decision was not supported by substantial evidence, Claimant appealed the Board’s determination.

The Appellate Division affirmed the Board’s ruling explaining that where the record establishes that there was “a full and fair opportunity to litigate the issue of the conduct precipitating termination in an arbitration proceeding, the arbitrator's factual findings must be accorded collateral estoppel effect."

Here, said the court, a review of the record confirms that the Board properly took into account the arbitrator's factual findings regarding Claimant's conduct underlying the disciplinary charges filed against him and made an independent evaluation as to whether Claimant's behavior constituted “disqualifying misconduct” for the purposes of unemployment insurance.

Noting that the arbitrator had found Claimant guilty of fighting with a coworker – behavior that has been held to constitute “disqualifying misconduct” -- the Appellate Division said that substantial evidence supported the Board's finding that Claimant was disqualified from receiving unemployment insurance benefits under the circumstances and affirmed the Board’s decision.

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