Public employees speech concerning matters of a personal interest is not “protected speech” within the ambit of the First Amendment

Public employees speech concerning matters of a personal interest is not “protected speech” within the ambit of the First Amendment

2014 NY Slip Op 07270, Appellate Division, First Department

Among the issues considered in this appeal was the teacher’s [Teacher] claim that she had suffered retaliation as a result of her having sued the New York City Department of Education [NYCDE] and having made statements to the media.

The Appellate Division held that neither Teacher's lawsuit nor her statements to the media constituted protected speech under the First Amendment or Article I, §§8 and 9 of the New York Constitution “as they primarily concern personal grievances, rather than matters of public concern.”

Essentially public officers and employees enjoy "protected speech" in connection with their public comments concerning a State or municipal employer's activities that are a matter of public concern. In contrast, comments by a public officer or employee concerning his or her personal unhappiness with a public employer, such as complaints about working conditions or his or her personal disagreements concerning internal operations of the department or the agency that does not rise to the level of a “public interest,” do not appear to be protected by the Constitution. As the court explained in Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, a public employee’s speech is not constitutionally protected where the speech was “motivated by and dealt with her individual employment situation”.

As to Teacher’s claim that she had suffered age discrimination within the meaning of the State and City Human Rights Laws, respectively Executive Law §290 et seq. and the Administrative Code of City of NY §8-101 et seq., the Appellate Division said that her allegations that she was 51 years old and was treated less well than younger teachers were insufficient to support her claims.

Addressing Teacher’s hostile work environment allegations, the court said that these claims also fail “because [NYCDE’s] alleged behavior amounts to "no more than petty slights or trivial inconveniences."

In Clauberg v State of New York, 95 AD3d 1385, the Appellate Division explained that “To support a retaliatory hostile work environment claim, the actions complained of must be sufficiently severe or pervasive to constitute actionable harassment and stem from a retaliatory animusAll of the circumstances must be considered, including "the frequency of the [retaliatory] conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.”

In a case involving similar “free speech - retaliation” issues, Golodner v Berliner, USCA, 2^nd Circuit, Docket #12-1173, Golodner filed a 42 USSC 1983 action against the City of New London  and two City officials, alleging the defendants retaliated against him for exercising his rights under the First Amendment when he filed an earlier lawsuit against the City and several of its police officers (“Golodner I”).

The United States District Court for the District of Connecticut held that the speech in Golodner I constituted speech on a matter of public concern protected under the First Amendment, and that Golodner’s right to engage in this form of speech was clearly established at the time of the alleged retaliation. The Circuit Court of Appeals affirmed the district court’s denial of the City's motion for summary judgment and remanded the case for further proceedings.

The "Teacher" decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07270.htm

The Golodner decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/0f67eae6-db03-4e97-b551-f1767ed9a183/2/doc/12-1173_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/0f67eae6-db03-4e97-b551-f1767ed9a183/2/hilite/
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COLA increases for dollar limitations on benefits and contributions

Retirement plan contributions - limitations on benefits and contributions

Source: The Internal Revenue Service

The Federal tax law places limits on the dollar amount of contributions to retirement plans and IRAs and the amount of benefits under a pension plan. §415 of the Internal Revenue Code requires the limits to be adjusted annually for cost-of-living increases. Interested readers should discuss this with their tax advisor.

Information and a table listing the dollar limitations for 2013, 2014 and 2015, and a number of Internal Revenue Code references, are posted on the Internal Revenue Service’s website at:.

http://www.irs.gov/Retirement-Plans/COLA-Increases-for-Dollar-Limitations-on-Benefits-and-Contributions
 
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A department policy does not trump the probationary period established by law or by a rule or regulations having the force and effect of law

A department policy does not trump the probationary period established by law or by a rule or regulations having the force and effect of law

Yan Ping Xu v New York City Dept. of Health & Mental Hygiene, 2014 NY Slip Op 07261, Appellate Division, First Department

One of the issues in this Article 78 action concerned the termination of Yan Ping Xu [YPX], a New York City employee serving as a "City Research Scientist I," a position in the noncompetitive class .

Under the controlling Personnel Rules and Regulations of the City of New York, persons appointed to a position in the noncompetitive class are subject to a probationary period of six months unless another period is set by the Commissioner of the Department of Citywide Administrative Services (DCAS).* 

YPX was terminated from her position without notice and hearing after this six-month probationary period had passed. HMH contended that YPX was subject to a probationary period of one year in accordance with the provisions of the governing collective bargaining agreement (CBA) and HMH’s own probationary termination policy.

The Appellate Division said that there was “no evidence that, during the period of [YPX’s] employment, the Commissioner of DCAS had altered the default six-month probationary period for the City Research Scientist I position.” Indeed, said the court, “the record contains a letter from DCAS expressly confirming that, ‘during the period June 30, 2007 to March 16, 2008, no . . . DCAS document existed’ that "provided for a civil service probationary period different than the one specified in [Personnel Rule and Regulation] 5.2.1."

As to HMH’s reliance on the provisions of the CBA with respect to YPX’s probationary period, the court pointed out that “[e]ven if the CBA could trump Personnel Rule 5.2.1(b), the CBA provision relied on by [HMH] does not in any way set forth a probationary period for noncompetitive employees.”**

Nor, said the Appellate Division, does HMH’s termination policy, which purport to provide for a probationary period of one year for City Research Scientists, serve to change the probationary period for City Research Scientist I positions as only the Commissioner of DCAS, and not the head of any other agency, may set probationary periods for employees appointed to positions in the noncompetitive class at something other than the period set by the Commissioner of DCAS.***

Accordingly, the court said it found YPX was subject to a probationary term of six months and upon the expiration of that six-month period she became a “tenured employee.”****

The Appellate Division remanded the matter to HMH “for further consideration of [YPX’s] claim of unlawful termination.”

* Such personnel regulations have the force and effect of law.

** See, for example, Gordon v Town of Queensbury, 256 AD2d 784. In Gordon the Appellate Division held that the probationary rules set out in a collective bargaining agreement trumped the probationary rules set in the regulations of the responsible civil service commission.

*** The court noted that HMH did not cite any provision of law that gives it the authority to establish a different probationary period for persons appointed to the title of City Research Scientist I. a position in the noncompetitive class of the classified service as defined in the Civil Service Law..

**** In its decision the court said that YPX became a “permanent” employee. However, an employee serving a probationary period is a permanent employee and attains tenure in the title upon his or her successful completion of the probationary period. Civil Service Law §63.1, in pertinent part, provides that a “… municipal civil service commissions may provide, by rule, for probationary service … upon appointment to positions in the exempt, non-competitive or labor classes….” and “shall, subject to the provisions of this section, provide by rule for the conditions and extent of probationary service” [see Civil Service Law §63.2].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07261.htm
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The custodian of public records demanded pursuant to a FOIL request electing to withhold some or all such records has the burden of demonstrating that the information requested falls within a statutory exemption

The custodian of public records demanded pursuant to a FOIL request electing to withhold some or all such records has the burden of demonstrating that the information requested falls within a statutory exemption
Jaronczyk v Mangano, 2014 NY Slip Op 07164, Appellate Division, Second Department

The basic concept underlying the Freedom of Information Law [FOIL] is that all government documents and records, other than those having access specifically limited by statute,* are available to the public. Further, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute.In contrast, a FOIL request is required in the event the custodian of the public record[s] sought declines to voluntarily provide the information or record requested. 

It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

John Jaronczyk wanted certain overtime records maintained by the Nassau County Sheriff's Department. Nassau initially denied Jaronczyk access, contending that the records contained the signatures of the captains who approved overtime requests but ultimately provided the requested records after redacting the signatures on the records that were provided.

Nassau argued that that redaction was proper pursuant to the "unwarranted invasion of personal privacy" statutory exemption, citing Public Officers Law § 87[2][b], claiming that disclosing the captains' signatures "would result in economic or personal hardship to the subject party" and the signatures were "not relevant to the work of the agency." 

The Appellate Division rejected Nassau's argument, stating that because Nassau had failed to “proffer more than conclusory assertions supporting these claims,” Supreme Court had correctly determined that Nassau failed to meet its burden of demonstrating that the information requested fell within this statutory exemption and thus, properly directed disclosure of the records without these redactions.

The court observed that the agency denying access to the records demanded has the burden of demonstrating that the information sought falls within a statutory exemption, "which exemptions are to be narrowly construed." As the Court of Appeals held in Westchester Rockland Newspapers v Kimball, 50 NY2d 575, cited by the Appellate Division in its decision, "FOIL compels disclosure, not concealment." wherever the agency fails to demonstrate that a statutory exemption applies.

The Appellate Division explained that in order to survive a challenge to the custodian of the record's refusal to release the records demanded requires the entity resisting disclosure to "articulate a particularized and specific justification for denying access'" and "conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed."

Noting that a court may award an attorney's fee and costs to a petitioner in conjunction with a FOIL request where the petitioner has substantially prevailed, and “(i) the agency had no reasonable basis for denying access; or (ii) the agency failed to respond to a request or appeal within the statutory time,” the Appellate Division said that, contrary to the Nassau's contention, the fact that  Nassau provided access to redacted documents during the pendency of the proceeding does not preclude a determination that Jaronczyk  substantially prevailed. Rather it is only one factor to be considered in determining whether an award of an attorney's fee and costs under the circumstances is appropriate.

Finding that Nassau failed to articulate a reasonable basis for redacting the signatures at issue, and because the Jaronczyk prevailed on this issue, the Appellate Division ruled that Supreme Court “did not improvidently exercise its discretion in granting that branch of the petition which was for an award of an attorney's fee and costs.”

* See, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07164.htm
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