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

August 12, 2016

Duties and responsibilities of members of Taylor Law “union negotiating committees” and "management teams”


Duties and responsibilities of members of Taylor Law “union negotiating committees” and "management teams”
Matter of Jeffersonville-Youngsville CSD, Decision U-6341
Matter of the Town of  Dresden, Decision U-7383
Matter of Nassau County Community College, 24 PERB 4583
Copaigue Union Free School District, 23 PERB 3046
Village of Port Chester, Decisions U-7856; U-7941

The summaries of the several PERB rulings set out below serve as a reminder of the major duties and responsibilities of members of the negotiating body representing union members and the negotiating team representing the employer in collective bargaining pursuant to Article 14 of the Civil Service Law, the Taylor Law, during the ratification process of the proposed collective bargaining agreement as well as the duties imposed on the “legislative body” that may be involved in the ratification process.


Matter of Jeffersonville-Youngsville CSD, PERB U-6341

The Jeffersonville-Youngsville Central School District negotiating team consisted of the Superintendent and three School Board members.

The District’s and the Union’s negotiating teams had agreed to all terms of a proposed agreement except the "2nd year salary offer." After obtaining authority to place an additional $2,000 "on the table" from the seven member School Board during the final day of negotiations, the Superintendent offered, and the Union accepted, a settlement which provided for more than the additional $2,000 authorized by the Board.

Although the Union's member ratified the agreement, the full School Board did not, with two to the three Board members of the District's negotiating team voting against the "ratification." When the Superintendent declined to execute a "memorandum agreement," the Union filed an unfair labor practice claim with PERB. 

Ultimately PERB directed the Superintendent to sign the memorandum agreement with the Union and, if requested, to sign "a formal ... contract" reflecting the salary agreements reached with the Union in the course of collective bargaining.

PERB explained that a School Board may not deprive the District's negotiating team of the power vested in it to negotiate a collective bargaining agreement. The School Board, as the "legislative body" has a different role (see Civil Service Law §201). PERB also commented that the School Board did not advise the Union of any "restrictions" on the District's team, "even if it had the authority to do so."

PERB also indicated that with respect to the two team/Board Members who voted against ratification, "each member of a negotiating team is obligated to support every part of an agreement unless the other party has been advised that he (or she) dissented from the part of the agreement which he subsequently opposed" in the course of negotiations.”

N.B. Unresolved, however, is the question of "legislative action ... providing the additional funds" by the School Board. Under the Taylor Law, any provision of an agreement that requires action by a legislative body, such as the allocation of funds, is not to take effect until the legislative body concerned acts to provide the required monies.* When the full Board votes on this matter, presumably all three "team/Board members" will be required to vote in favor of the allocation of required funds consistent with their "team position." This illustrates another of the difficulties that must be considered when a member of the "legislative body" is also designated to serve as a negotiating team member.


Matter of the Town of Dresden

In another case in which PERB distinguish the different roles administrators and legislators have in Taylor Law negotiations is Matter of the Town of Dresden, Case U-7383.

In this instance the Town Supervisor refused to sign the negotiated agreement contending that he lacked authority to reach a final agreement without the prior approval of the Town Board. The Union filed an improper practice charge with PERB.

PERB said that the Taylor Law contemplates negotiations will be an executive rather than a legislative process. Any resulting agreement is between the employer's administrative body and the Union and is binding on the parties. Those provisions requiring approval by the legislature, typically appropriations and related actions are not enforceable until the necessary legislative action is taken as earlier noted. 


Matter of Nassau County Community College

Another element to consider regarding the ratification of a collective bargaining agreement negotiated pursuant to the Taylor Law concerns the duty of negotiators to recommend ratification of a proposed agreement.

In Matter of Nassau County Community College, 24 PERB 4583, PERB sustained its Administrative Law Judges ruling that "the failure of negotiators affirmatively to support an agreement is in violation of the Taylor Law unless the negotiators had advised the other party in advance that they would not give such support." As a remedy, it ordered the union to execute a collective bargaining agreement embodying the agreements reached by the parties and reflected in a memorandum of understanding if requested to do so by the employer.


Matter of Copaigue Union Free School District

In a situation similar to the one the served of the genesis of Matter of Nassau Community College, in the course of the process of ratifying the proposed collective bargaining agreement between the Copaigue Union Free School District and a collective bargaining unit of employees in the District, the Union's chief negotiator, at the beginning of a unit member meeting to vote on the ratification of a proposed agreement, announced that the Union’s four person negotiating committee was deadlocked, 2 to 2, with respect to approving the ratification of the tentative agreement. The union members then voted and the proposed agreement was rejected.

Copaigue filed an unfair labor practice charge with PERB alleging that the Union’s chief negotiator’s statement violated §209-a.2(b) of the Taylor Law. PERB’s Administrative Law Judge agreed, holding that the disclosure of the split in the views of the team members concerning the acceptance or rejection of the tentative agreement by the chief negotiator was, at best, the expression of a "neutral position on the part of the negotiating team in contravention of its duty under the [Taylor Law] to affirmatively support ratification."

PERB affirmed the ALJ’s ruling, noting that "the failure of negotiators affirmatively to support an agreement is in violation of the Taylor Law unless the negotiators had advised the other party in advance that they would not give such support."


Village of Port Chester

Alleged misunderstanding of the terms and conditions set out in a collective bargaining agreement by a party does not permit that party to repudiate the collective bargaining agreement or apply its interpretation of its terms and conditions..

As PERB ruled in Village of Port Chester, Cases U-7856; U-7941, an agreement ratified by the Village's Trustees cannot be thereafter repudiated by the Village on the grounds that it was not given a thorough explanation of the provisions in the agreement prior to its being ratified nor may it impose its understanding of the contents of the agreement upon the union as the ratification process is of no consequence with respect to the validity of the agreement.

* Civil Service Law §204-a. Agreements between public employers and employee organizations.
1. Any written agreement between a public employer and  an employee organization determining the terms and conditions of  employment of public employees shall contain the following notice in  type not smaller than the largest type used elsewhere in such agreement:  "It is agreed by and between the parties that any provision of this  agreement requiring legislative action to permit its implementation by  amendment of law or by providing the additional funds therefor, shall  not become effective until the appropriate legislative body has given  approval."


August 10, 2016

New legal search tool available from Casetext


New legal search tool available from Casetext
Source: Casetext, Inc., 430 Sherman Ave., Suite 305, Palo Alto, CA 94306

Using the latest computer technology, Casetext has a new tool for use in legal research, its Case Analysis Research Assistant [CARA]. Interested individuals may sign up for a free one-week trial period to test CARA's power using your "real-time" legal research projects.

With CARA the user starts with his or her document as the source to search for decisions and relevant comments the user might wish to consider in developing his or her brief, answer, memorandum of law, or argument.

The procedure is simple and user friendly. The researcher logs into his or her Casetext account, or creates his or her free account if new to Casetext, and goes to CARA -- https://casetext.com/cara -- to initiate the research project. If there are questions concerning using CARA during this trial period, the researcher may arrange for brief telephone consultation.

The researcher may then securely upload a brief, memorandum of law, or other document in WORD™ or a searchable PDF format. CARA suggests “the more citations, the better!” CARA then provides a list of relevant decisions and other information, with links to the document[s] located so the user may read them in full if he or she elects to do so.

Casetext notes that there are other research-related activities wherein CARA may prove useful such as:

1. Checking an opponent's or an amicus curiae's brief, answer, memorandum of law, etc., for relevant decisions than may not have been cited therein in the course of preparing your response;

2. Supplementing your research when preparing a client alert or article for publication;

3. Reviewing your draft brief periodically during the research stage and before filing to determine if there have been any recently published decisions and other relevant materials that should be referenced; and

4. Checking to see if memoranda of law or other records earlier prepared require updating.

Below is a truncated result from a draft memorandum upload to CARA’s secure website that included Garcia v San Antonio Metro. Transit Authority as one of the cases cited.

469 U.S. 528 (1985)

Summaries from Subsequent Cases (25 subsequent decisions were listed.)
Holding district court did not err in granting dismissal rather than judgment where defendant's 12(c) motion raised what was essentially a 12(b)(6) defense.

Key Passages from this Case (82 key passages were indicated.)

Insights (2 comments concerning this case were returned.)
…Municipal workers have been protected by the FLSA since the Supreme Court’s landmark 1985 decision in Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (U.S. 1985) (though public sector employers are permitted to pay premium overtime via compensatory time rather than cash wages under 29 U.S.C. § 207(o)). However, as evidenced by a recent federal court decision, FLSA exemptions still apply to public sector employees who meet the applicable exemption standards.…
Noel P. Tripp, Esq.,
Jackson Lewis P.C.

CARA users also may access all of the advanced research technology on Casetext.

For more information concerning Casetext’s legal library and research tools, go to: https://casetext.com/about/research.

Employee alleges termination for planning to testify against the employer in an age discrimination case constituted a violation of the First Amendment


Employee alleges termination for planning to testify against the employer in an age discrimination case constituted a violation of the First Amendment
Stilwell v City of Williams, USCA, 9th Circuit, Case #14-15540
Source: FindLaw, part of Thomson Reuters

FindLaw reports that “In a suit brought by a City employee who alleged that he was fired for planning to testify against the City in a lawsuit relating to age discrimination, the District Court's grant of summary judgment to defendant is vacated and remanded where: 1) plaintiff was engaged in speech as a citizen for First Amendment purposes because his sworn statements and imminent testimony about the City's retaliatory conduct were outside the scope of his ordinary job duties and were on a matter of public concern; and 2) he retaliation provision of the Age Discrimination in Employment Act (ADEA), did not preclude plaintiff’s 42 U.S.C. section 1983 First Amendment retaliation claim.”

In Connick v Myers, 461 US 138, the U.S. Supreme Court said that federal courts will consider retaliation allegations based on an employee's claim of free speech where the speech concerns matters of public concern in contrast to speech involving “only matters of a personal interest” to the employee.*

A second test that must be met by a public employee claiming that his or her employer's action violates his or her right to free speech: Did the employee's statement outweigh the employer's interest in terminating or otherwise disciplining an employee whose conduct “hinder effective and efficient fulfillment of its responsibilities to the public?”

In Santer v Board of Educ. of E. Meadow Union Free Sch. Dist., 23 NY3d 251, the Court of Appeals held that  public employer may impose restraints on First Amendment activities of its employees that are job-related that would be unconstitutional if applied to the public at large, explaining “that viewing the record evidence in light of established federal precedent … the teachers' interests in engaging in constitutionally protected speech in the particular manner that was employed on the day in question were outweighed by the District's interests in safeguarding students and maintaining effective operations,” at a school.**

Other decisions in which a public employee's right to free speech was considered include Tytor v Laramie County School District, CA10 [unpublished]; Jeffries v Harleston, CA2, 52 F3d 9; and Barnard v Jackson County, CA8, 43 F3d 1218. 

* In evaluating the validity of a restraint on government employee speech, courts must “arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees” [see Matter of Pickering, 391 US at 568]. However, the Pickering’s balancing test applies only when the employee speaks “as a citizen upon matters of public concern” rather than “as an employee upon matters only of personal interest.


The text of the Stilwell decision is posted on the Internet at:

August 08, 2016

State Comptroller Thomas P. DiNapoli forwards auditor’s findings for review by the Public Officers Law violations to the State’s Joint Commission on Public Ethics


State Comptroller Thomas P. DiNapoli forwards auditor’s findings for review by the Public Officers Law violations to the State’s Joint Commission on Public Ethics
Source: Office of the State Comptroller

SUNY Downstate Medical Center (Downstate) consultant, Pitts Management Associates, Inc. (PMA), charged Downstate $83,156 in questionable travel and lodging expenses, exceeding the conditions of the contract, including pricey rooms at the Carlyle Hotel and a “team dinner” that included cocktails, according to a report released on August 8, 2016,  by State Comptroller Thomas P. DiNapoli.

Comptroller DiNapoli said “My auditors exposed questionable expenses and ethical lapses that have no place in state government. Auditors found “tens of thousands in monthly hotel costs and expensive dinners on the public’s dime at a time when Downstate was supposed to be getting its fiscal house in order.”

Indicating that Downstate “failed to protect the public’s money,” the Comptroller urged the Joint Commission on Public Ethics “to review this questionable behavior.”

Downstate hired PMA to provide organizational restructuring and consulting to identify solutions to fiscal difficulties as reported in a 2013 Comptroller audit that revealed Downstate was facing potential insolvency. PMA had two subsequent contracts with Downstate worth $35.8 million.

DiNapoli’s report found several instances in which Downstate’s then administration failed to act in the state’s best interest by eliminating certain cost controls over PMA travel expenses, including a prohibition on reimbursement for alcohol. In addition, the then president charged his
Bermuda airfare and some of his lodging at the Fairmont Hamilton Princess hotel to his state-issued credit card for a six-day birthday bash for PMA’s chair, prompting a referral by the Comptroller to the state Joint Commission on Public Ethics.

According to the report, PMA’s questionable expenses included:

1. Lodging costs of $17,688, including $14,193 in weekend hotel expenses for a consultant who had traveled home and did not require overnight accommodations, and a $1,419 charge for a single night’s stay at the Carlyle for the PMA Chairman;

2. Inappropriate meal expenses of $13,629, including free meals for Downstate staff, which is prohibited for state employees;

3. A non-itemized $2,039 “team dinner” at Manhattan’s Docks Oyster Bar and Seafood Grill with nearly $400 for alcohol. The total far exceeded the allowable U.S. General Services Administration and
New York state dinner rates;

4. An alleged ‘travel expense’ of $32,500 for a management software license; and
 
5. Transportation expenses totaling $33,203, nearly half of which lacked proper documentation and included $537 for limousine drivers to wait outside restaurants for hours for PMA consultants to finish dinner.

DiNapoli recommended that Downstate:

1. Recover $41,512, including $32,500 for software license fees;

2. Review the then president’s actions and ensure time cards and expenses are properly documented and business-related;

3. Develop a policy for consulting contracts that includes reimbursement for meals, transportation and lodging that conforms to the GSA Rates and/or the New York State Travel Manual; and

4. Perform an independent examination of all travel-related expenses – that PMA charged and Downstate approved – for reasonableness, and recover as appropriate.

In response, Downstate acknowledged that improvements are needed in the procurement and payment areas and agreed to recover the $41,512 in miscellaneous expenses including the software license fees.

The Comptroller’s report and Downstate’s full response is posted on the Internet at: http://www.osc.state.ny.us/audits/allaudits/bseaudits/bse20160808.pdf

August 05, 2016

Payment for time involved in donning and doffing of uniforms


Payment for time involved in donning and doffing of uniforms
Perez v The City of New York, USCA, Second Circuit, Docket #15-315 [Source: Justia Daily Opinion Summaries]

Justia reports that “[s]everal active and former Assistant Urban Park Rangers (AUPRs) employed by the [New York] City's Parks Department alleged that they, and others similarly situated, were not paid in accordance with the requirements of the Fair Labor Standards Act (FLSA), 29 U.S.C. 201 et seq. The district court granted partial summary judgment for defendants and closed the case without further proceedings.

“On the current record, the [Circuit] court could not conclude as a matter of law that plaintiffsʹ donning and doffing of uniforms were not integral and indispensable to their principal activities as AUPRs - the sole ground on which the district court granted partial summary judgment. Therefore, the [Circuit] court remanded to allow the district court to decide, in the first instance, whether plaintiffsʹ donning and doffing are nevertheless noncompensable as a matter of law under the de minimisdoctrine or the terms of a collective bargaining agreement.” 

The Perez decision is posted on the Internet at:

August 04, 2016

Members of the public are deemed to have knowledge of an agency’s administrative action that has been posted on the Internet


Members of the public are deemed to have knowledge of an agency’s administrative action that has been posted on the Internet 
Eskridge v Nassau County BOCES, Decisions of the Commissioner Education, Decision No. 16,932

Meredith Eskridge appealed the decision of the Board of Cooperative Educational Services of Nassau County [BOCES] denial of her request to be placed on the preferred eligibility list for a position as a teacher of deaf and hard of hearing. 

Earlier BOCES had advised Eskridge that the Bethpage Union Free School District was “taking back” the program of hearing impaired services and that “her seniority, tenure and sick days would move with her.” Bethpage appointed Eskridge with tenure in the special subject tenure area of Education of Deaf Children effective October 12, 2011.  On August 25, 2011, Bethpageappointed Eskridge as a teacher in the general special education tenure area, subject to the satisfactory completion of a two year probationary period.

On January 3, 2012, BOCES appointed Amanda Pirolo to the position of Teacher-Deaf and Hard of Hearing - Hearing and Vision Services-Special Education Program.

Bethpage terminated Eskridge’s .4 probationary appointment in the special education tenure area effective February 28, 2012, thereby reducing her employment with the district to a .6 tenured part time position in the special subject tenure area of education of deaf children. 

Eskridge challenged BOCES decision not to placing her name the preferred list by initiating an Article 78 proceeding in Nassau County Supreme Court. She contended that BOCES had violated Education Law §3014-b by failing to place her on the preferred eligibility list and failing recall her to a position as teacher of the deaf in its “Deaf  and Hard of Hearing-Hearing and Vision Services-Special Education” Program.  The court dismissed her petition on jurisdictional grounds and referred the matter petition to the Commissioner of Education for determination. The Commissioner assumed jurisdiction.

In response to Eskridge’s allegations Bethpageargued that:

  1. Eskridge failed to properly serve Amanda Pirolo with a copy of her petition; 
  2. Pirolo’s name should be removed from the petition because she has not been employed by BOCES as a teacher of the deaf since 2012;
  3. Eskridge failed to name the current holder of the position, Paula Hastings, in the caption of her appeal and therefore she has failed to join necessary parties;
  4. Eskridge’s appeal was untimely; and
  5. Eskridge “failed to state a claim.”
Addressing the issue to timeliness, the Commissioner ruled Eskridge’s petition was timely, explaining that “[a]n unsuccessful attempt to litigate a dispute in court which does not result in a final determination on the merits may be accepted as an excuse for failing to file a timely appeal to the Commissioner, when the appeal is commenced within 30 days of receipt of the [court’s] determination.”

Ultimately many of the technical defects in Eskridge's appeal were cured consistent with the advisory given to Eskridge by the Commissioner’s Office of Counsel that “if the corrected version was served and filed within two weeks of July 3, 2012, the appeal would be deemed to have been initiated on the day a copy of the returned petition was personally served upon respondents.” Eskridge complied and as the original petition was served on the BOCE respondents within 30 days of the Supreme Court’s decision, the Commissioner deemed the appeal timely.

Pirolo’s answer stated that she has not been employed by BOCES as a teacher of the deaf since June 2012 and that Paula Hastings was appointed by BOCES to such a position on or about October 23, 2012. Accordingly, the Commissioner ruled that with respect to Pirolo was moot.

However, said the Commissioner, Eskridge’s appeal with respect to BOCES’s refusal to add her name to the preferred list was not moot but Eskridge’s appeal was dismissed “for failure to join a necessary party.”*

In response to a request from the Commissioner’s Office of Counsel, BOCES had provided a copy of the minutes from the BOCES October 23, 2012board meeting. The minutes reported that Hastingswas appointed to the position effective October 15, 2012. The Commissioner said that Eskridge’s contention that she was not aware of Hastings’ appointment was unpersuasive as the relevant information was reflected in the Board’s minutes and “publicly available on BOCES’s website.”** 

Dismissing Eskridge’s appeal regarding BOCES appointment of Hastings as untimely, the Commissioner explained that “this appeal was commenced in July 2013, more than eight months after Hastingswas appointed and Pirolo was no longer serving in the position at that time. As Hastingswould be adversely affected by a determination in favor of Eskridge, the Commissioner held that the appeal must be dismissed for failure to join Hastingsas a necessary party. 

Observation: Assuming, but not deciding, that Eskridge accepted a full-time position with the Bethpage Union Free School District, the precedent followed in such situations is that upon acceptance of a full-time position with a School District in compliance with Education Law §3014-b, the individual does not have a right to remain on a preferred eligible list at BOCES. In earlier Decisions of the Commissioner it was held that Education Law §§2510 and 3013 are designed to protect the rights of teachers whose positions are abolished generally. In contrast, Education Law §3014-b is intended to protect the rights of BOCES teachers whose positions are eliminated specifically because of program takebacks. When a teacher is excessed because of a BOCES program takeback, §3014-b(1) provides that " . . . each teacher employed in such a program by such a board of cooperative educational services at the time of such takeover by the school district shall be considered an employee of such school district, with the same tenure status he [or she] maintained in such board of cooperative educational services." 

* A necessary party is a party whose rights would be adversely affected by a determination of an appeal in the petitioner's favor, here Paula Hastings.

**A footnote in the Commissioner’s decision provides a link to the BOCES “Agenda for the Regular Meeting of Tuesday, October 23, 2012” which sets out on page 69 of a “BOCES packet” a reference to a personnel action involving Hastings. See


The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume56/d16932

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant New York State laws, rules and regulations, and selected court and administrative decisions involving layoff and related matters. For more information click on http://booklocker.com/5216.html
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August 03, 2016

Seeking documents that the custodian of the records contends may be denied pursuant to one or more Freedom of Information Law “exemptions from disclosure”


Seeking documents that the custodian of the records contends may be denied pursuant to one or more Freedom of Information Law “exemptions from disclosure”
Rose v Albany County Dist. Attorney's Off., 2016 NY Slip Op 05536, Appellate Division, Third Department

Nakia Rose was convicted of numerous crimes* People v Rose, 72 AD3d 1341 [2010], lv dismissed 16 NY3d 745 [2011]). He thereafter submitted a Freedom of Information Law (Public Officers Law Article 6 [FOIL]) request to Albany County District Attorney's Office [ODA] seeking the disclosure of "29 categories of documents relating to the criminal investigation that led to his conviction."**

The Office of the District Attorney [ODA] denied the request for the documents, and Rose  initiated this CPLR Article 78 proceeding. Although Rose subsequently received some of the requested documents, Supreme Court sustained OAD's denial of other documents. Rose appealed and the Appellate Division remitted the matter to Supreme Court for an in camera*** inspection of the documents with regard to two groups of documents that Rose had requested consisting of:

[1] "[a]ll notes, memos, teletypes, letters, records, and other communications to/from the State police, Albany police, Albany Dept. of Public Safety, or federal authorities regarding [petitioner] and/or the investigation underlying the charges against him;" and

[2] "[a]ll letters or communications written by any employee of [the ODA], or on its behalf, to any governmental agency or private entity concerning any prosecution witness, including but not limited to letters and communications to the Division of Parole, Probation Department, Human Resources Administration, NYC Housing Authority, Department of Homeland Security, and Immigration."

Supreme Court then conducted an in camerainspection of all 257 documents in the two groups provided by the ODA. Providing a detailed description of each document and the basis for the disclosure or nondisclosure of each of the 257 documents, the court concluded that 32 of the documents were subject to disclosure in redacted form and dismissed Rose’s petition with regard to the remaining documents. Supreme Court also denied Rose's request for attorney fees.

Responding to Rose’s appeal of this ruling by Supreme Court, the Appellate Division rejected Rose’s contention that he was entitled to disclosure of all of the documents as the result of “an alleged failure by Supreme Court to provide sufficient factual explanation for its determination as to each document.” The court explained that it was well established that Rose’s entitlement to the documents depends upon whether ODA did or did not meet its burden of establishing that the documents fall within an exemption to a FOIL disclosure and Rose’s “entitlement” to any of the documents was not dependent on the specificity of a “trial court's written findings.”

The Appellate Division also held that Supreme Court had properly limited its scope of review in accordance with its earlier “unambiguous directive that the scope of remittal was limited to addressing whether or not documents responsive to [Rose’s] request … were exempt from disclosure.”

In addition, the Public Officers Law §87(2)(g) exempts inter-agency or intra-agency materials from FOIL disclosure to the extent that such materials do not contain "(i) statistical or factual tabulations or data; (ii) instructions to staff that affect the public; [or] (iii) final agency policy or determinations." This exemption for inter-agency or intra-agency materials, said the Appellate Division, "applies to 'opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making,’" agreeing with Supreme Court that the ODA met its burden of establishing that documents at issue were exempted inter-agency or intra-agency materials.

However, said the Appellate Division, Supreme Court should have directed the disclosure of documents which were not sought to be exempted by the ODA and it should not have relied on a justification for withholding documents that was not advanced by the ODA.

As to the "safety exemption" set out in Public Officers Law §87[2][f] the Appellate Division indicated rather than withholding certain of the documents entirely, they could be disclosed subject to appropriate redactions.

As NYPPL has noted in earlier summaries of court and administrative decisions involving FOIL requests, the release of some public records is limited by statute [see, for example, 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 is necessary only in the event the custodian of the public record[s] sought declines to simply provide the information or record requested. In such cases the individual or organization must file a formal FOIL request in order to obtain the information. 

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 statutory exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded. Further, in some instances, however, a statutory exception may have “sublimated” as the Appellate Division observed in DeFreitas v New York State Police Crime Lab., 2016 NY Slip Op 05676, quoting Matter of Lesher v Hynes, 19 NY3d 57, “the exception in Public Officers Law §87(2)(e)(i) [interfere with law enforcement investigations or judicial proceedings] no longer applies because petitioner's criminal proceedings and judicial review have concluded.”


** The facts of that case are more fully discussed in a previous decision by the Appellate Division, Ross v Albany County Dist. Attorney’s Office, 111 AD3d 1123, Leave to appeal dismissed, 16 NY3d 745, posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_07796.htm .

*** A review of the document by the court “in private.”

The decision in Rose v Albany County Dist. Attorney's Off.,2016 NY Slip Op 05536, is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2016/2016_05536.htm

August 02, 2016

Simplifying the task of locating, screening and vetting an expert as well as an individual noting his or her availability to serve as a qualified expert


Simplifying the task of locating, screening and vetting an expert as well as an individual noting his or her availability to serve as a qualified expert
The Expert Institute [ https://www.theexpertinstitute.com/]

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The Expert Institute may be able to provide an individual or an organization with assistance in searching for an expert or assist an individual wishing to advise businesses and organizations of his or her availability to serve as an expert. 

Searching for an expert using Expert Institute’s services is easy. The Expert Institute’s growing directory includes, but is not limited to, experts in business operations and services; education; finance and financial services; intellectual property; law, rules and regulations; medicine; retail operations; and technologies.

Click on https://www.theexpertinstitute.com/expert-witness-directory to access the Institute’s new online expert directory and search through a sampling of its expert network. There is no charge involved in searching the Institute’s sample online directory of experts. The Institute, however, does charge fees for an individual or organization to access its entire data base to "self-search" for an expert and for confidential, customized expert searches and other unique services such as phone consultations, record distillation and report preparation, by Institute staff members.

Interested in serving as an expert co to https://www.theexpertinstitute.com/become-an-expert/for information about becoming a member of the Expert Institute's network. As to the cost involved, there are no charges or fees associated with applying for, or being listed on, the Institute’s directory of experts. Further, the Institute takes no part in the expert's financial arrangements with his or her client nor is it involved in invoicing the client for the services provided by the expert.

Additional information about the Expert Institute is posted on the Internet at: https://www.theexpertinstitute.com/how-we-work/

Recent decisions by New York City Office of Administrative Tribunals and Hearings Administrative Law Judges


Recent decisions by New York City Office of Administrative Tribunals and Hearings Administrative Law Judges


Making false and misleading statements in an official report
OATH Index No. 1619/16

A correction officer [Officer] was charged with making false and misleading statements in a written report concerning force used by another correction officer against an inmate. Video showed that the other officer pulled the inmate’s arm through the food slot and hit the inmate at least once. The Officer’s report stated that there was an “altercation” and included the word “arm” to indicate where force was applied.

Administrative Law Judge John B. Spooner found that Officer’s report was deficient because it did not provide the detail required by the use-of-force directive  but that it was not intentionally false,. Judge Spooner dismissed the charge that Officer did not report that the other officer had struck the inmate because there was insufficient proof that Officer saw a blow.

The ALJ recommended Officer be suspended without pay for 5 days. 



Improperly indicating availability for working overtime
OATH Index No. 2741/15

OATH Administrative Law Judge Kevin F. Casey found that a carpenter improperly documented his overtime availability, did not respond to his supervisors’ phone calls regarding availability for overtime, failed to keep his supervisor’s informed about his progress on assignments, disobeyed instructions for filling out timesheets, and refused to comply with orders to refrain from adding extraneous comments to work tracking forms.

Judge Casey recommended that the carpenter be suspended without pay for 20 days.


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August 01, 2016

Attempting to avoid disciplinary action


Attempting to avoid disciplinary action
2016 NY Slip Op 05608, Appellate Division, Third Department

A New York State Trooper [ST] was allegedly involved in "an incident" in the course of performing official duties. The Internal Affairs Bureau of the Division of State Police [IBA] investigated the incident and recommended that "appropriate administrative action" be taken against ST. Two days after the IAB issued its report, but before any formal disciplinary charges were served on ST, ST submitted a notice of his "intent to retire."

ST subsequently applied for an identification card indicating that he was a State Police Retired Member.* The Superintendent rejected ST’s application for such an identification card after concluding that  ST "had engaged in serious misconduct and retired in order to avoid disciplinary action.” Accordingly, the Superintendent explained, ST had not retired in good standing

ST commenced a CPLR Article 78 proceeding, claiming that the Superintendent’s determination was arbitrary and capricious and without a rational basis because ST “was not facing any charges of serious misconduct at the time that he retired.”

The Appellate Division affirmed the Supreme Court’s dismissal of ST’s the petition, explaining that the court’s review of an Article 78 challenge to an administrative determination such as the one brought by ST was limited to whether the administrative determination was arbitrary and capricious, lacked a rational basis or was affected by an error of law. Further, said the Appellate Division, a court would not substitute its judgment for that of the appointing authority if that conclusion was reasonably supported by the record.

The court's decision notes that in denying ST’s request for the identification card, the Superintendent considered the IAB's report and ST’s personnel records. These records  indicted that [1] ST had been "the subject of recent counseling and below standard performance ratings" and [2] ST had been the subject of “six founded personnel complaints” during his tenure as a trooper and was "the subject of a pending personnel complaint” at the time of his retirement.

The Appellate Division said that the record established that although disciplinary charges had not been served upon ST prior to his submitting a notice that he intended to retire, the formal submission of his notice of an intention to retire "effectively suspended any internal disciplinary proceedings against him."**

Although ST denied that he engaged in misconduct or retired to avoid disciplinary action, the Appellate Division concluded that the record supported the Superintendent's determination that ST was not eligible for the requested identification card because he engaged in serious misconduct shortly before his retirement and did not retire in good standing.

Finding that the Superintendent’s determination was not arbitrary and capricious nor lacking in a rational basis, the Appellate Division declined to disturb it.

* The significance of the possession of such identification is that 18 USC §926C provides that "an individual who is a qualified retired law enforcement officer and who is carrying the identification required . . . may carry a concealed firearm." Executive Law §231, amended  effective January 20, 2015, provides that Superintendent of State Police "shall develop and distribute uniform identification cards to all sworn members of New York [S]tate [P]olice, upon such members' retirement in good standing" and the phrase "retirement in good standing" means that the State Police member "retired from his or her employment for reasons other than the avoidance of disciplinary charges."

** 4 NYCRR 5.3 Resignation, provides, in pertinent part, that when charges of incompetency or misconduct have been or are about to be filed against an employee of the State as the employer, the appointing authority may elect to disregard the resignation filed by the employee and to prosecute such charges and, in the event that the employee is found guilty of such charges and the penalty imposed is dismissed from the service, his or her termination "shall be recorded as a dismissal rather than as a resignation." Many local civil service commissions have adopted a similar rule. The decision in Blair v Horn, 2008 NY Slip Op 32581(U) [Not selected for publication in the Official Reports] suggests that a court could deem a retirement to be the equivalent of a resignation for the purposes of 4 NYCRR 5.3(b). See, also, Elmira CSD v Newcomb, 266 AD2d 622, motion for leave to appeal dismissed, 94 NY2d 899.

The decision is posted on the Internet at:

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