ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

December 23, 2014

Police agency's records concerning breath alcohol measurement instruments may be obtained pursuant to a Freedom of Information Law request


Police agency's records concerning breath alcohol measurement instruments may be obtained pursuant to a Freedom of Information Law request
Law Offs. of Adam D. Perlmutter, P.C. v New York City Police Dept., 2014 NY Slip Op 08722, Appellate Division, First Department

The Law Offices of Adam D. Perlmutter, P.C., [Perlmutter] filed a Freedom of Information Law [FOIL] request seeking “all calibration and maintenance records for all Intoxilyzer machines owned or maintained by New York City Police Department [NYPD] since January 2008”.The Intoxilyzer is a breath alcohol measurement instruments manufactured by CMI, Inc.

In response to NYPD denial of Perlmutter’s FOIL demand, Perlmutter filed an Article 78 petition. Supreme Court seeking a court order annulling NYPD’s decision and an order directing the NYPD to disclose the records sought by Perlmutter.

Relying on provisions set out in Public Officers Law §87, NYPD had contended that the records "are compiled for law enforcement purposes and . . . , if disclosed, would . . . interfere with law enforcement investigations or judicial proceedings," as such records are often requested in “Driving While Intoxicated” [DWI] cases involving Intoxilyzer test results and that thousands of such cases are pending in New York City.

The Appellate Division affirmed the lower court's ruling and rejected NYPD’s claim that the records sought by Perlmutter were exempt from disclosure pursuant to FOIL.

The court noted NYPD’s FOIL arguments are not properly before it because the exemption to FOIL was not cited by NYPD at the administrative level. However, the Appellate Division continued, “Were we to review it, we would reject [NYPD's arguments] on the merits, since the statute cited by [NYPD] does not exempt the records from disclosure.”

The decision is posted on the Internet at:

December 22, 2014

An employee's status as reported in the agency’s records control notwithstanding an error in correspondence concerning the employee’s employment status

An employee's status as reported in the agency’s records control notwithstanding an error in correspondence concerning the employee’s employment status
2014 NY Slip Op 08718, Appellate Division, First Department

An individual [Officer] initiated the grievance process set out in collective bargaining agreement challenging the Metropolitan Transportation Authority Police Department’s director of labor relations' action that “purportedly terminated [Officer’s] employment as a police officer”  with Authority’s Police Department. 

When his grievance was denied, Officer demanded that his grievance be submitted to arbitration. However, before the arbitration commenced, Officer filed an Article 78 petition in Supreme Court, New York County, seeking to vacate his “purported termination” from his position.

Supreme Court denied Officer’s petition and dismissed the proceeding on the ground that Officer failed to exhaust his administrative remedies. The Appellate Division sustained the Supreme Court’s ruling.

The Appellate Division explained that the relevant collective bargaining agreement had a "Waiver of Trial Agreement" (Waiver Agreement) incorporated into the collective bargaining agreement's binding arbitration procedure as the means of determining, "in future cases of misconduct," whether Officer had committed a "serious violation" of Authority Police Department’s rules. The Police Department later determined that subsequent to the parties entering into the Waiver Agreement Officer had committed a serious violation.

The Appellate Division said that Officer failed to establish that he was actually terminated before arbitration in violation of the Waiver Agreement.

To the extent a mistake was made when a personnel order, dated August 21, 2012, was issued to all department members stating that Officer had been terminated, the mistake was corrected by the issuing of a revised order, dated April 12, 2013, to all department members stating that Officer was suspended without pay rather than terminated. 

Further, said the Appellate Division, the Department's records demonstrate that effective August 20, 2012 Officer was placed on an unpaid leave of absence.

Similarly, in the event an employee status as reflected in the agency’s records is inconsistent with records of the relevant civil service commission, the commission’s records control absent a finding that the commission’s records are in error.

The decision is posted on the Internet at:


________________

The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html 
________________



December 20, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending December 20, 2014




Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending December 20, 2014
Click on text highlighted in color  to access the full report

DiNapoli: Audit Reveals Theft of Cash, Questionable Spending by Minetto Volunteer Fire Department Chief

The chief of the Minetto Volunteer Fire Company in Oswego County spent nearly $6,000 in public funds on personal purchases such as guns and motorcycle parts, according to an audit released Friday by State Comptroller Thomas P. DiNapoli. The audit revealed a total of $22,000 in misused funds, questionable spending and missing cash.


Buffalo Business Delivers $9 Million Investment Gain to the State Pension Fund

AccuMED, a manufacturer located in Buffalo, has generated an estimated $9 million investment gain for the New York State Common Retirement Fund, New York State Comptroller Thomas P. DiNapoli announced Tuesday. The investment was made through the Fund’s In-State Private Equity Program, which is designed to make profitable investments in New York state-based companies.


DiNapoli: New York City’s Financial Outlook Improving

New York City’s revised four-year financial plan shows substantially smaller out-year gaps than projected by the city in June 2014, mostly because of higher tax revenues and lower projected pension and debt service costs, according to a report released Tuesday by New York State Comptroller Thomas P. DiNapoli.


DiNapoli: Former Le Roy Fire Dept. Treasurer Pleads Guilty in $46,000 Theft of Public Funds

The former treasurer of the Le Roy Fire Department and the Le Roy Fireman’s Benevolent Association pleaded guilty Tuesday to stealing nearly $46,000 in public funds, much of which he spent on gambling at upstate casinos, according to audits and an investigation by New York State Comptroller Thomas P. DiNapoli.


DiNapoli Announces State Contract & Payment Actions for November 2014

State Comptroller Thomas P. DiNapoli announced Tuesday his office reviewed over 2,000 contracts valued at $2.1 billion and approved nearly 1.2 million payments worth nearly $8.9 billion in November. His office also rejected 166 contracts and related transactions valued at $348 million and more than 1,700 payments valued at more than $3.9 million due to fraud, waste or other improprieties.
.

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
Copyright 2009-2024 - Public Employment Law Press. Email: nyppl@nycap.rr.com.