The evolution of New York’s whistle blower laws protecting public officers and employees

The evolution of New York’s whistle blower laws protecting public officers and employees

Castro v City of New York, 2016 NY Slip Op 05615, Appellate Division, First Department

In his notice of claim dated November 17, 2012, Robert J. Castro alleged that, on August 22, 2012, he was improperly terminated as a Manager and Certified Fire Safety Director by the New York City Department of Homeless Services [City] because, he refused to make false certifications. By letter dated November 26, 2012, the City acknowledged receipt of the claim. In June 2013, Castro commenced this action, contending that he had been subjected to “an improper termination claim under Labor Law §740 (the Private Sector Whistleblower Law).” and sought reinstatement and monetary damages.

The City moved to dismiss the complaint on the grounds that:

[1] Labor Law §740 is inapplicable to public employees; and

[2] Even if Castro had asserted a claim under Civil Service Law §75-b (the Public Sector Whistleblower Law), it would fail because his allegations did not satisfy the statutory prerequisites.

Castro then amended his complaint, repeating his original factual allegations to assert an improper termination claim under Civil Service Law §75-b, for which he sought only monetary damages.

Supreme Court granted the City's motion to dismiss the amended complaint on the grounds that: (i) the notice of claim did not give the City adequate notice of plaintiff's Civil Service Law §75-b claim because the statute was not cited and "improper termination" could be premised on a myriad of state and federal statutes or common law, each of which would require different inquiries during the investigation; and (ii) Castro had waived his right to pursue the Civil Service Law §75-b claim because he elected to initially commence the action pursuant to Labor Law §740 but withdrew that claim.

In response to Castro’s appeal the Appellate Division quickly disposed of the issue that Castro had “waived” his Civil Service Law §75-b rights, holding that Supreme Court “erred in finding that, by commencing this action pursuant to Labor Law §740, [Castro] waived his right to pursue his claims under Civil Service Law §75-b.” Accordingly, said the Appellate Division, it must consider whether a notice of claim is required for a Civil Service Law §75-b claim that seeks monetary relief and, if so, whether Castro’s claim is barred because he did not cite §75-b in his notice of claim.

General Municipal Law §50-e(1)(a) requires service of a notice of claim within 90 days after the claim arises "[i]n any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a public corporation." General Municipal Law §50-i(1) precludes commencement of an action against a city "for personal injury, wrongful death or damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of such city," unless a notice of claim has been served in compliance with §50-e.

In Mills v County of Monroe, 59 NY2d 307, cert denied 464 US 1018,  the Court of Appeals held that an employment discrimination claim brought against a county under the Human Rights Law is subject to County Law §52(1)'s notice-of-claim requirement. Subsequently, in Margerum v City of Buffalo (24 NY3d 721 , the Court of Appeals held that the notice of claim requirements of General Municipal Law §§50-e and 50-i did not apply to the firefighters' disparate treatment racial discrimination claim under the New York State Human Rights Law.

In reaching this determination, the court stated  that "[h]uman rights claims are not tort actions under 50-e and are not personal injury, wrongful death, or damage to personal property claims under 50-i. Nor, said the court,  "do we perceive any reason to [so] encumber the filing of discrimination claims" in which a municipality is alleged to have violated the State’s Human Rights Law."

Considering the Margerum decision, the Appellate Division ruled that a notice of claim is not required for a Civil Service Law §75-b claim, explaining that “[a]s with the Human Rights Law claims that were the subject of Margerum, Civil Service Law §75-b claims are not tort actions under General Municipal Law §50-e and are not personal injury, wrongful death, or damage to personal property claims under General Municipal Law §50-i.

Thus, said the court, “there is no reason to encumber the filing of a retaliatory termination claim” pursuant to Civil Service Law §75-b, indicating that Civil Service Law §75-b shares significant similarities with the Human Rights Law.

Further, in Tipaldo v Lynn 76 AD3d 477 , affd 26 NY3d 204, the Appellate Division, First Department, “observed that retaliatory termination claims are analogous to the Human Rights Law for purposes of compensation because §75-b, Labor Law §740 and the Human Rights Law all have "the goal of remediating adverse employment actions which, if allowed, would undermine an important public policy."

In any event, the Appellate Division held that even if a “Notice of Claim” was required, the notice of claim filed by Castro was sufficient to allow the City to investigate his Civil Service Law §75-b claim, notwithstanding its not citing the section. Further, the test of the notice's sufficiency is whether it includes information sufficient to provide a municipal authority with an opportunity to investigate the claim and a court must look to “the circumstances of the case, and is not limited to the four corners of the notice of claim.”

Civil Service Law §75-b forbids retaliatory or personnel action concerning compensation, promotion, transfer, or evaluation of performance, by public employers against their employees who disclose to a governmental body information regarding violations of regulations that would present a specific danger to public health or safety. In this instance although Castro “did not specifically reference the ‘whistleblower’ claim, the notice of claim included enough information for the City to investigate the §75-b claim.”

Noting that the City was certainly aware that Castro's job duties at the Department of Homeless Services (DHS) required him to inspect homeless shelters and to certify that they were safe, a further investigation would have uncovered that he “refused to certify false statements about the safety of homeless shelters he inspected, that he complained to his supervisors about it, and that he was terminated after doing so.” In addition, said the court, the City failed to establish what prejudice, if any, it suffered as a result of the alleged defect in the notice of claim, which clearly alerted it to Castro's contention that his termination was improper.

The Appellate Division also rejected the City argument that Castro’s amended complaint must be dismissed because he failed to state a cause of action under Civil Service Law §75-b notwithstanding the fact that Castro “allegedly advised his immediate supervisor and an Assistant Commissioner of the alleged violations” because these individuals were not the "appointing authority" at DHS, and Castro never contended that he reported the alleged government misconduct to a governmental body outside of DHS.

In the words of the court, “[t]hese arguments are unavailing” as the language used in the statute is “a governmental body," which includes "a public employer," rather than "another" government body or "another" public employer, suggesting that “an employee is protected if he reports internally and/or externally.”

The Appellate Division also noted that Civil Service Law §75-b(2)(b), which then provided* that "For purposes of this subdivision, an employee who acts pursuant to this paragraph [requiring a good faith effort to first inform an appointing authority] shall be deemed to have disclosed information to a governmental body under paragraph (a) of this subdivision." The court said that the text “also suggests that an employee need not also report to an external agency” and the legislative history states that "[t]he employee receives the same protection when giving this notice [to the appointing authority] as if he or she had disclosed information to a governmental body."

Also noted by the Appellate Division was the Court of Appeals’ instruction in Tipaldo v Lynn, 26 NY3d 204, that "courts should use their discretion in determining whether the overall actions of the plaintiff constitute a good faith effort to report the misconduct" and here the overall efforts of Castro constitute a good faith effort to report the alleged misconduct as he complained not only to his supervisor but also to the Assistant Commissioner about DHS' attempts to cover up unsafe conditions at homeless shelters.

Finally, the Appellate Division cited Medina v Department of Educ. of the City of N.Y., 35 Misc 3d 1201, in which the trial court held that "[I]nternal complaints to the plaintiff's supervisor will be held sufficient to satisfy Civil Service Law §75-b absent a showing by the agency defendant as to why the complaint to the supervisor was insufficient, or that the petitioner could have or should have notified someone else in order to obtain corrective action".

The bottom line: The Appellate Division unanimously reversed Supreme Court order which had granted the City’s motion to dismiss Castro’s amended complaint on the law.

* The requirement that an employee first make a good faith effort to inform the "appointing authority" is set forth in Civil Service Law §75-b(2)(b), which provision was repealed on December 28, 2015, which was after the order appealed by Castro was rendered. Castro conceded that §75-b(2)(b) is applicable because it was in effect at the time he commenced the action. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05615.htm

Typically the doctrine of equitable estoppel is not applied to a governmental entity exercising a governmental function or correcting of an administrative error

Typically the doctrine of equitable estoppel is not applied to a governmental entity exercising a governmental function or correcting of an administrative error 

Palm v Tuckahoe Union Free School Dist., 2016 NY Slip Op 05558, Appellate Division, Second Department

The doctrine of equitable estoppel is typically raised in an effort to bar Party A from acting in a manner inconsistent with Party A’s earlier position concerning a matter where its change of position is to the detriment of Party B, who acted in reliance of Party A's earlier position. Equitable estoppel was one of the arguments advanced by the plaintiffs in this Article 78 action, contending that such a change in  defendant's position was to Plaintiffs' detriment.

Stephen Palm brought this action on behalf of himself and certain owners of units [Plaintiffs] in a 28-unit condominium complex against the Tuckahoe Union Free School District [Tuckahoe] alleging that Plaintiffs had elected to exercise their statutory right to designate Tuckahoe as their school district pursuant to Education Law §3203(1)* and that Tuckahoe had wrongfully deprived them of that right.

In support of their claim, Plaintiffs argued that certain condominium unit owners had paid school taxes to Tuckahoe and had relied on Tuckahoe’s representations that this right of election was available to them pursuant to Education Law §3203(1). In the alternative, Plaintiffs argued that Tuckahoe was equitably estopped from depriving them of the right to designate Tuckahoe as their school district.

After a jury trial, the jury returned a verdict in favor of Plaintiffs that, in effect, held that certain owners of the condominium units were [1] entitled under Education Law §3203(1)(b) to elect Tuckahoe as their school district of choice and that [2] Tuckahoe should be equitably estopped from depriving the condominium unit owners who testified at the trial of their right to designate Tuckahoe as their school district of choice.

Tuckahoe then asked the court for a judgment in its favor notwithstanding the jury’s verdict as a matter of law. Supreme Court granted Tuckahoe’s motion and Plaintiffs appealed. 

The Appellate Division ruled that Supreme Court properly granted Tuckahoe’s motion to set aside the jury’s verdict that declared that the Plaintiffs could designate Tuckahoe as their school district pursuant to Education Law §3203(1).

Addressing Supreme Court’s granting Tuckahoe’s motion to set aside the jury verdict in favor of certain Plaintiffs as a matter of law, the Appellate Division said that "[a] motion for judgment as a matter of law … may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial….”

That said, the Appellate Division concluded that there was “no rational process by which the jury could find in favor of the [Plaintiffs]" as a matter of law.

As to the issue of the application of the doctrine of equitable estoppel, the Appellate Division, citing Matter of Daleview Nursing Home v Axelrod, 62 NY2d 30, affirmed Supreme Court’s granting that branch of Tuckahoe’s motion to set aside the jury’s verdict, explaining that “[e]stoppel generally is not available against a municipal defendant with regard to the exercise of its governmental functions or its correction of an administrative error.”

Noting that although there are exceptions to this “general rule,” and that they are applicable only when there are "exceptional circumstances" such as the "wrongful or negligent conduct" of a governmental entity, or that entity's "misleading nonfeasance" induces a party "relying thereon to change his or her or its position to his or her or its detriment" and which resulted in a "manifest injustice," the Appellate Division concluded that there was no valid line of reasoning and permissible inferences from which the jury could rationally have found that Tuckahoe had engaged in any wrongful or negligent conduct or misleading nonfeasance resulting in a "manifest injustice" that would trigger the application of an exception to the general rule with respect to Plaintiffs' situation in this instance.

Accordingly, said the Appellate Division, Supreme Court properly granted Tuckahoe’s motions pursuant to CPLR §§4401 and 4404(a).

* Education Law §3203(1) provides for the selection of a school for a child to attend when the boundary line between two school districts runs through the dwelling on the property or, in the case of an owner-occupied single family dwelling unit, runs through the property on which the dwelling unit is located.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05558.htm

Some guidelines to consider in determining the records to be delivered, in whole or in part, in responding to a Freedom of Information Law request

Some guidelines to consider in determining the records to be delivered, in whole or in part, in responding to a Freedom of Information Law request

Livson v Town of Greenburgh, 2016 NY Slip Op 05570, Appellate Division, Second Department

In deciding this appeal the Appellate Division set out a number  of  guidelines of value to both custodians of public records that are being sought pursuant to a Freedom of Information Law [FOIL] request and those seeking the disclosure of public documents.  

The genesis of this case was Dorrine Livson’s submission of a FOIL request to the Town of Greenburgh [Town] in her capacity as a representative of a Civic Association seeking the list of the names and email addresses of all persons who “signed-up” to receive updates concerning items posted on the Town's website by email. Referred to as the "gblist," and maintained by a private vendor, Cit-e-Net, gblist subscribers could also elect to discontinue receiving “gblist updates.

The Town denied Livson’s FOIL request, advising her that "[t]here is neither a print or extract function on the software that can reasonably create a list of email addresses." 

Subsequently Livson learned that Cit-e-Net could provide the Town with a digital copy of the gblist upon receiving such a request from the Town. She then filed an administrative appeal challenging  the denial of her FOIL request by the Town. The Town's Board of Supervisors denied Livson’s appeal and she commenced a CPLR Article 78 proceeding against the Town, the Town Clerk, and the Town Board challenging the Town’s denial of her administrative appeal.

The Supreme Court granted Livson’s petition and directed the Town "to disclose, in electronic form, the names and email addresses of subscribers of the gblist." The court, however, said the gblist could not be reproduced, redistributed or circulated nor could the information of the gblist be used for solicitation, fund-raising or any commercial purpose." The Town appealed Supreme Court’s ruling.

Addressing the Town’s appeal, the Appellate Division noted that:

1. The Freedom of Information Law was enacted "to promote open government and public accountability," and "imposes a broad duty on government to make its records available to the public."

2. The statutorily stated policy or philosophy underlying FOIL is to promote “[t]he people's right to know the process of governmental decision-making and to review the documents and statistics leading to determinations."

3. Records held by third parties on behalf of a government agency are "records" which are presumptively subject to disclosure pursuant to a FOIL request and a government agency's not having physical possession of such records is immaterial with respect to honoring such a request.*

4. The agency denying access to the target[s] of a FOIL request has the burden of demonstrating that an exemption, in whole or in part, applies to the information sought by FOIL request.

5. The statutory exemptions from disclosure are to be "narrowly construed" so as to ensure maximum public access to the government documents requested and the agency must demonstrate that the requested material "fall[s] squarely within a FOIL exemption."

In the words of the Appellate Division, "[T]he agency does not have carte blanche to withhold any information it pleases," and it must "articulate particularized and specific justification" for the nondisclosure at issue. "Conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed."

In addition, the court pointed out that an agency "may deny access to records" where disclosure "would constitute an unwarranted invasion of personal privacy under the provisions of Public Officers Law §89(2)(b)] [and] [W]here none of the [enumerated exemptions under Public Officers Law §89(2)(b) are] applicable, a court must decide whether any invasion of privacy . . . is ‘unwarranted’ by balancing the privacy interests at stake against the public interest in disclosure of the information."

In denying the Town’s appeal, the Appellate Division said that it had not articulated the applicability of any enumerated exemptions under Public Officers Law § 89(2)(b), nor did the Town show that the privacy interests at stake outweigh the public interest in disclosure of the information.

In addition, said the court, Livson sought "to further the public discourse on matters of public importance and concern in the Town" by obtaining the names and email addresses of those persons who subscribe to the gblist. Such persons have willingly divulged that information to the Town so that they may receive news and information, in electronic form, on matters of public concern in the Town and are free to delete their name and email address from the gblist.

As to the privacy issue, the Appellate Division pointed out that the Town did not articulate any privacy interest that would be at stake in the disclosure of the gblist and its contention that disclosure of would make gblist subscribers more susceptible to phishing, spamming, and other email scams was speculative. The Appellate Division also pointed out that disclosure of the information on the gblist would not make the gblist subscribers more susceptible to such acts than they ordinarily would be.

As NYPPL has noted in a footnote in a number of earlier summaries of FOIL decisions by the courts, “The release of some public records is limited by statute. i.e., Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality. Otherwise, submitting a formal FOIL request is not a condition precedent to obtaining public records where access is not barred by statute.

Submitting a formal FOIL request becomes necessary only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record[s] requested. In such cases the individual or organization must file a formal FOIL request in order to seek to obtain the information.

Also note that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the statutory exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, applicable to the information or records demanded.” As the Court of Appeals opined in Capital Newspapers v Burns, 67 N.Y.2d 562, “while an agency is permitted to restrict access to those records falling within the statutory exemptions, the language of the exemption provision contains permissive rather than mandatory language, and it is within the agency's discretion to disclose such records, with or without identifying details, if it so chooses.” 

* Public Officers Law §87.5(b), addressing access to agency records, provides: 5(b) No agency shall enter into or renew a contract for the creation or maintenance of records if such contract impairs the right of the public to inspect or copy the agency's records. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05570.htm

A fire district or municipal corporation may file an application for disability retirement on behalf of a firefighter receiving General Municipal Law §207-a.1 benefits

A fire district or municipal corporation may file an application for disability retirement on behalf of a firefighter receiving General Municipal Law §207-a.1 benefits

City of Lackawanna v Nitido, 2016 NY Slip Op 05220, Appellate Division, Third Department

The City of Lackawanna filed an accidental disability retirement application* on behalf of Kenneth A. Drozdowski, a firefighter employed by the City, after deciding that Drozdowski was permanently disabled as a result of a number of injuries sustained in various incidents during the course of his duties as a firefighter.

The New York State Policemen's and Firemen's Retirement System denied Lackawanna’s application and the City appealed. An administrative hearing officer concluded that the incidents giving rise to the City’s application did not constitute accidents within the meaning of the Retirement and Social Security Law [RSSL] and denied its application. The Hearing Officer's, which determination was sustained by the Deputy Comptroller. Lackawanna next filed a CPLR Article 78 petition challenging the Deputy Comptroller’s decision.

Citing Matter of Kenny v DiNapoli, 11 NY3d 873, the Appellate Division confirm the Deputy Comptroller’s ruling, explaining that “[i]n order for an incident to constitute an accident for purposes of the Retirement and Social Security Law, it must be "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact; and citing Matter of Schultz v DiNapoli, 137 AD3d 1454, the Appellate Division observed that “[t]he injury must not result from an activity undertaken in the performance of ordinary employment duties and must not be an inherent risk of such job duties.”

With respect to the first event submitted by Lackawanna in support of its application, at the hearing Drozdowski had testified that he had responded to a structure fire where an obese individual was trapped on the second floor. Given the urgent situation and in order to evacuate the individual, Drozdowski, with the assistance of other firefighters, strapped the individual to a spine board and, because the individual was too large to fit through the doorway horizontally, attempted to maneuver the individual through the doorway in a vertical position and down the stairs.

When the other firefighters lost their grip on the board, Drozdowski was left alone holding the board and was injured when he slid down the stairs while trying to control the momentum of the individual's weight and prevent the individual from sustaining further injury.

The Appellate Division ruled that the record established that “evacuating occupants of all sizes” is an ordinary part of Drozdowski's duties as a firefighter and thus substantial evidence supports the Deputy Comptroller's conclusion that this incident was not an accident.”

Regarding a second incident described in support of the City’s application, Drozdowski had testified that he had tripped on a three-inch concrete step in the fire station and hit his head on a desk, resulting in an injury to his neck. Although Drozdowski noted that the floor had just been mopped and that he had walked through some puddles on the floor just before falling, the Appellate Division said that “[n]o defective condition in the step was alleged, and Drozdowski acknowledged that he was aware of the step and had, in fact, tripped on it before.”

Under these circumstances, said the court, substantial evidence supports the Deputy Comptroller's conclusion that the injuries sustained in this incident resulted from Drozdowski's own misstep or inattention, which did not constitute an accident for purposes of the Retirement and Social Security Law.”

Considering a third incident the City advanced in support of the application it had filed on behalf of Drozdowski -- an injury sustained by Drozdowski in the course of his responding to an emergency medical service call involving an “obese, intoxicated and combative” individual -- the Appellate Division concluded that the record established that Drozdowski was performing his normal his duties when he sustained those injuries, which arose when in while providing emergency medical service to an individual and that he was aware of the combative nature of the individual. Thus, said the court, substantial evidence supported the Deputy Comptroller's conclusion that the incident did not constitute an accident within the meaning of the RSSL.

The Appellate Division decided that the City “did not sustain its burden of demonstrating that the events producing the injuries resulted from accidents” and sustained the Deputy Comptroller's determination.**

* Subdivision 2 of §207-a of the General Municipal Law provides, provides that in the event a firefighter receiving §207-a.1 benefits does not file an application for accidental disability retirement or line of duty disability retirement benefits, the fire district or municipal corporation employing the firefighter may file such an application of behalf of the firefighter. If such an application is denied, the fire district or municipal corporation employing the firefighter may appeal that determination. A similar provision with respect a police officer as defined in Subdivision 1 of General Municipal Law §207-c is set out in Subdivision 2 of §207-c of the Retirement and Social Security Law.

** The decision is silent as to whether Drozdowski was found eligible for line of duty disability retirement.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05220.htm

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The Disability Benefits E-book – 2016 Edition: This 810 page e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://section207.blogspot.com/

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Selected reports issued by the Office of the State Comptroller during the week ending July 23, 2016

Selected reports issued by the Office of the State Comptroller during the week ending July 23, 2016

Source: Office of the State Comptroller

Click on text highlighted in color to access the entire report 

Tax Cap Remains Below One Percent for 2017
Property tax levy growth for local governments will be capped at 0.68 percent for 2017, decreasing slightly from 2016, when it was 0.73 percent, according to State Comptroller Thomas P. DiNapoli. The latest inflation figure affects the tax cap calculations for local governments that operate on a calendar-based fiscal year (Jan 1. – Dec. 31) – which includes all counties, towns, fire districts, 44 cities and 10 villages.

Mid-Hudson Region Shows Economic Strength Following Recession

New York State Comptroller DiNapoli released an economic profileof the Mid-Hudson region. The region’s proximity to New York City and quality transportation systems continue to drive economic activity, but the high costs of housing and doing business could impede future growth.

State Faces Potential Budget Gaps

New York state faces potential budget gaps in future years, according to an analysisof the state’s Financial Plan released by State Comptroller Thomas P. DiNapoli. The budget gaps result from spending increases and tax reductions enacted this year, and the use of temporary resources to pay for recurring costs.

State Tax Collections Dip

Tax collections totaling $19.8 billion fell short of projections for New York state in the first quarter of the state’s fiscal year, a decline of $797.6 million, or 3.9 percent, from the same period last year and $454.1 million below projections, according to the June state cash report issued by State Comptroller Thomas P. DiNapoli.

New I-9 Forms for 2016 still unavailable

New I-9 Forms for 2016 still unavailable

The current version of Form I-9 expired on March 31, 2016, but United States Citizenship and Immigration Services (USCIS) has instructed employers to continue using it until a new revision is approved. USCIS has also proposed changes to the I-9 procedures intended to streamline processing I-9 Forms and reduce errors.