Objecting to producing certain documents demanded pursuant to a non-judicial subpoena duces tecum

Objecting to producing certain documents demanded pursuant to a non-judicial subpoena duces tecum

New York State Joint Commission. on Public Ethics v Campaign for One N.Y., Inc., 2016 NY Slip Op 26290, Supreme Court, Albany County, Denise A. Hartman, J.

The New York Joint Commission on Public Ethics (JCOPE) commenced a proceeding in Supreme Court, Albany County, to compel Campaign for One New York, Inc. (Campaign) to comply with  non-judicial subpoena duces tecum that it issued in 2015 and in 2016 pursuant to Executive Law §94.

Campaign cross-moved for a protective order limiting production of certain documents demanded pursuant to the 2015 subpoena and to quash the 2016 subpoena.

Finding that JCOPE has established that it had the authority to issue both subpoenas, Judge Hartman addressed a number of issues raised by Campaign in objecting to the production of certain of the documents demanded pursuant to the subpoenas including the application of the Deliberative Process Privilege; protection as a Proprietary Trade Secret; the Attorney-Client Privilege; the Attorney Work Product privilege; and the Common Interest Doctrine

The Deliberative Process Privilege

Campaign asked the court to shield 41 documents pursuant to the deliberative process privilege. However, said the court, as Campaign is not a governmental agency, it does not have the right to assert the deliberative process privilege explaining that the privilege is a common law privilege that has been codified as an exception to FOIL.

As so codified,  the privilege shields from FOIL disclosure inter-agency or intra-agency materials that are prepared to assist a government agency's substantive decision-making process and, citing Matter of World Trade Ctr. Disaster Site Litigation, 2009 WL 4722250, the court noted that the privilege has also been applied to protect documents containing "advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated" for the purpose of "enhanc[ing] the quality of agency decisions by protecting open and frank discussion among those who make them within the Government."

While the language of FOIL only protects inter-agency and intra-agency materials, the Court of Appeals has extended the privilege to materials prepared for a government agency, at its request, "by an outside consultant."* As the privilege protects the deliberative processes of the government agency it affects, it must be invoked by that agency and not the private entity acting on the agency's behalf. In so doing, the governmental agency invoking the privilege must demonstrate "what interests would be harmed, how disclosure under a protective order would cause the harm, and how much harm there would be" and the court must balance the agency's interests against the interests mitigating in favor of disclosure. 

Proprietary Trade Secrets

Addressing Campaign’s contention that certain documents were  privileged as “trade secrets,” the court said that typically proprietary trade secrets will be shielded from disclosure "except to the extent that [disclosure] appears to be indispensable for ascertainment of the truth." Citing Ashland Management Inc. v Janien, 82 NY2d 395, the court said that “[a] proprietary trade secret is ‘any formula, pattern, device or compilation of information which is used in one's business, and which gives [the business] an opportunity to obtain an advantage over competitors who do not know or use it’” and “[a] conclusory statement in an attorney's affidavit that a document contains trade secrets is insufficient to meet the burden required to assert the privilege.”

Attorney-Client Privilege

Campaign also asserted that eight documents sought by JCOPE were protected by the attorney-client privilege. The court ruled that six were not protected because they were disclosed while a third party was present and that Campaign did not demonstrated that the remaining two were predominantly of a legal character.

While the attorney-client privilege prevents confidential communications made between the attorney and the client in the course of professional employment from being disclosed "[t]he party asserting the privilege bears the burden of establishing its entitlement to protection by showing [1] that the communication at issue was between an attorney and a client for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship, [2] that the communication is predominantly of a legal character, [3] that the communication was confidential and [4] that the privilege was not waived." In any event, said the court, such a communication is not confidential if it is "made in the presence of third parties, whose presence is known to the client." 

Attorney Work Product

Campaign claimed that eight documents were exempt from disclosure under the “attorney work product doctrine.”  Noting that the party asserting the doctrine has "the burden of demonstrating that particular items are exempt or immune from disclosure ... the mere assertion that items constitute attorney's work product ... will not suffice," the court said that “[f]our of the documents appear, even from the scant descriptive information provided by Campaign, to fall outside the ambit of the privilege” and “the Court will conduct an in camera** review to determine whether the privilege applies.”

 Common Interest Doctrine

The court ruled that Campaign could not use the common interest doctrine to shield  any of the documents at issue from disclosure, explaining that the common interest doctrine extends attorney-client privilege in the presence of a third party where "attorney-client communications . . . are revealed to one another for the purpose of furthering a common legal interest," but it is limited to "disclosure ... deemed necessary to mount a common claim or defense." 

* Matter of Xerox Corp. v Town of Webster, 65 NY2d 131

** In private.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_26290.htm

Inadequate investigation by employer supports employee’s Title VII claim that the employees’ supervisors used the n-word

Inadequate investigation by employer supports employee’s Title VII claim that the employees’ supervisors used the n-word

By Lorene D. Park, J.D.

Posted in Wolters Kluwer's WorkDayhttp://www.employmentlawdaily.com/

Denying summary judgment on an African-American employee’s Title VII hostile work environment claim, a federal court in New York held that a jury could find that the repeated use of the n-word against him by two first line supervisors was severe and pervasive, that the employer’s investigation was inadequate, and that it should therefore be vicariously liable. However, the employee’s remaining discrimination and retaliation claims failed, largely because the record was clear that he was terminated because he failed to turn in FMLA paperwork and he accepted a better-paying job Holt v. Dynaserv Industries, Inc..

Ms. Park’s article is posted on the Internet at:

http://www.employmentlawdaily.com/index.php/news/supervisors-use-of-n-word-inadequate-investigation-support-title-vii-claim/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+CCH-Workday+%28WK+WorkDay%29

© 2016 CCH Incorporated. All rights reserved. The foregoing summary is reprinted with permission. This article was published in Wolters Kluwer Daily Reporting Suite on September 14, 2016. For more information, please click here [http://www.dailyreportingsuite.com/files/DailiesReprintPermissionsAfter7Days.pdf]

Applying the principles of statutory construction in the course of litigation

Applying the principles of statutory construction in the course of litigation

Carver v Nassau County Interim Fin. Auth., 2016 NY Slip Op 05995, Appellate Division, Second Department [Decided with Donohue v Nassau County Interim Fin. Auth., 2016 NY Slip Op 05996, Appellate Division, Second Department]

In 2000, the County of Nassau was in the grip of a fiscal crisis involving a $2.7 billion debt. In response, the State Legislature created the Nassau County Interim Finance Authority [NIFA].*NIFA was created as a public benefit corporation to oversee the County's finances and created three periods of oversight: [1] an initial "interim finance period," [2] an ensuing period of "monitoring and review," and, when triggered by fiscal decline as defined in the Act, [3] a "control period" to restore fiscal balance.

On January 26, 2011, NIFA ordered a control period upon projecting a substantial budget deficit during which it imposed successive wage freezes upon County employees. A number of employee organizations representing employees in several collective bargaining units challenged NIFA’s imposition of these wage freezes.**

Ultimately the merits of the contention that NIFA was not granted statutory authority to extend the wage freezes beyond the interim finance period, which expired in 2008, was considered by Supreme Court in a proceeding pursuant to CPLR Article 78. The employee organizations sought a court order annulling and vacating certain resolutions adopted by NIFA and an order compelling compliance with salary provision set out in the relevant collective bargaining agreements.

In so doing, the plaintiffs relied on relied on Public Authorities Law §3669(3)(a), which provides, in relevant part:

"3. Authorization for wage freeze.

"(a) During a control period, upon a finding by the authority that a wage freeze is essential to the adoption or maintenance of a county budget or a financial plan that is in compliance with this title, the authority, after enactment of a resolution so finding, may declare a fiscal crisis. Upon making such a declaration, the authority shall be empowered to order that all increases in salary or wages of employees of the county and employees of covered organizations which will take effect after the date of the order pursuant to collective bargaining agreements, other analogous contracts or interest arbitration awards, now in existence or hereafter entered into, requiring such salary increases as of any date thereafter are suspended. Such order may also provide that all increased payments for holiday and vacation differentials, shift differentials, salary adjustments according to plan and step-ups or increments for employees of the county and employees of covered organizations which will take effect after the date of the order pursuant to collective bargaining agreements, other analogous contracts or interest arbitration awards requiring such increased payments as of any date thereafter are, in the same manner, suspended. . . . The suspensions authorized hereunder shall continue until one year after the date of the order and, to the extent of any determination of the authority that a continuation of such suspensions, to a date specified by the authority, is necessary in order to achieve the objectives of the financial plan, such suspensions shall be continued to the date specified by the authority, which date shall in no event be later than the end of the interim finance period, provided that such suspensions shall terminate with respect to employees who have agreed to a deferral of salary or wage increase upon the certification of the agreement by the authority pursuant to paragraph (b) of this subdivision"(emphasis supplied by the court in its decision).

Supreme Court denied the petition and dismissed the proceeding. The Appellate Division sustained the lower court’s rulings.

Citing Sabot v Lavine, 42 NY2d 1068, the Appellate Division explained that to address the plaintiffs’ argument “the familiar principles of statutory construction” must be applied whereby "Any statute or regulation . . . must be interpreted and enforced in a reasonable ... manner in accordance with its manifest intent and purpose." The court then set out the following test to be considered by courts with respect to determining “legislative intent:”

1. “A statutory interpretation that is ‘contrary to the dictates of reason or leads to unreasonable results is presumed to be against the legislative intent’;

2. “When presented with a question of statutory interpretation, [the court's] primary consideration is to ascertain and give effect to the intention of the Legislature;

3. "The clearest indicator of legislative intent is the statutory text, ‘the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof’;

4. “A further fundamental rule of statutory construction when construing statutes under the same legislative act is that the court must ‘take the entire act into consideration, or look to the act as a whole, and all sections of a law must be read together to determine its fair meaning’; and

5. "A court should avoid a statutory interpretation rendering the provision meaningless or defeating its apparent purpose."

Applying these principles to the above-quoted section of the NIFA Act, as well as the NIFA Act's requirement that it "shall be liberally construed to assist the effectuation of the public purposes furthered hereby," the Appellate Division found that, contrary to the petitioners' contention, the Supreme Court correctly determined that NIFA was authorized under the NIFA Act to impose the challenged wage freezes.

Public Authorities Law §3669(3), said the court, expressly provides for NIFA's authority to declare a control period by adopting a resolution finding a fiscal crisis, and upon such finding, order that all increases in salary or wages of county employees be suspended. Further, noted the court, the Act provided that NIFA may be declared control periods "at any time."

Although the petitioners argued that other language in Public Authorities Law §3669(3) confines wage freeze authority to the interim finance period alone, the Appellate Division said that the petitioners had ignored the fact “that wage freeze authority was placed in a statutory section entitled "Control Period." The plain language preceding the use of the term "interim finance period" in that section by the Legislature clearly and unequivocally conferred wage freeze authority upon NIFA during control periods.

In the words of the court, … “petitioners' reliance upon certain language of Public Authorities Law §3669(3) that references the interim finance period is misplaced, as that language is followed by a ‘provided’ qualifier that does not apply here.” Further, petitioners’ construction of §3669(3) conflicts with the meaning of the statute as a whole, as well as with the Legislature's expressed intent that NIFA be vested with recognized tools for dealing with ongoing fiscal crises.

Accordingly, the Appellate Division concluded that NIFA and the County respondents established their objections in point of law and held that Supreme Court properly, in effect, denied the petition and dismissed the proceeding.

* Public Authorities Law §§3650-3672.

** The decision sets out in some detail the procedural actions taken by the parties in advancing their respective claims.

The decision in Carver v Nassau County Interim Fin. Auth is set out on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05995.htm

The decision in Donohue v Nassau County Interim Fin. Auth. is set out on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05996.htm

Students with a “disability for the purposes of IDEA” cannot establish a prima facie of unlawful discrimination based on the student being disabled for the purposes of ADA and §504

Students with a “disability for the purposes of IDEA” cannot establish a prima facie of unlawful discrimination based on the student being disabled for the purposes of ADA and §504

B.C., et al. v. Mount Vernon School District, et al, USCA 2^nd Circuit, No. 14‐3603‐cv

In addressing a question of “first impression”, the United State Circuit Court of Appeals, Second Circuit, held that as the definition of “disability” for the purposes of the Americans with Disabilities Act, 42 U.S.C. §12102(1), [ADA] claims and claims under the Rehabilitation Act, 29 U.S.C. §705(20), [§504] differ from the definition of “disability” for the purposes of claims advanced pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §1401(3)(A) [IDEA].*

Accordingly, said the court, an individual with a “disability” under the IDEA does not categorically qualify as an individual with a disability under the ADA and §504 and data relating to “child[ren] with a disability” under the IDEA cannot establish a prima facie case with respect to a claim predicated on the plaintiff having a disability under the ADA and §504.

The court explained that “To establish a prima facie case of discrimination under either the ADAor §504, a plaintiff must show the following: (1) plaintiff is a “qualified individual with a disability;” (2) plaintiff was “excluded from participation in a public entity’s services, programs or activities or was otherwise discriminated against by [the] public entity;” and (3) “such exclusion or discrimination was due to [plaintiff’s] disability.”

Further, said  the Circuit Court, “[t]he ADAasks whether an impairment ‘substantially limits’ a major life activity,  while the IDEA trains on whether an impairment necessitates ‘special education and related services.’ Thus, a child might ‘need special education and related services’ by reason of an impairment, id., even if that impairment does not ‘substantially limit … [a] major life activit[y].’” Citing Ellenberg v. N.M. Military Inst., 572 F.3d 815, 821 (10th Cir. 2009), the court said “one may … qualify as ‘disabled’ under the IDEA for purposes of that statute without demonstrating a ‘substantially limit[ing]’ impairment.”

* The ADA and Section 504 define the term “disability” differently than the IDEA does. The ADA defines “disability” as a “physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. §12102(1)(A). Section 504 expressly incorporates, with certain qualifications not applicable here, the ADA’s definition. 29 U.S.C. §705(20)(B). By contrast, under the IDEA, a “child with a disability” has one or more of an enumerated list of impairments requiring “special education or related services."

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/1be964f6-7e36-45ae-bd05-cbb35e4158b1/1/doc/14-3603_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/1be964f6-7e36-45ae-bd05-cbb35e4158b1/1/hilite/

Selected reports issued by the New York State Comptroller during the week ending September 17, 2016

Selected reports issued by the New York State Comptroller during the week ending September 17, 2016

Source: Office of the State Comptroller

[Internet links highlighted in color]

Former Pennellville Fire Chief Pleads Guity to petit larceny

Pennellville Volunteer Fireman’s Association (VFA) former Fire Chief Duane Royal pleaded guilty to petit larceny for stealing VFA gas for his private process-serving business. http://www.osc.state.ny.us/press/releases/sept16/091516.htm?utm_source=weekly+news&utm_medium=email&utm_term=corruption&utm_content=20160918&utm_campaign=fiscal+oversight

Sunset Park, Brooklyn, an economic snapshot

The population, the number of jobs and businesses, and the wages being paid in Sunset Park, Brooklynare all growing at a rapid pace, according to a report released by New York State’s Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/osdc/rpt5-2017.pdf

Disparate treatment on the basis of a foreign accent is evidence of discrimination based on race or national origin

Disparate treatment on the basis of a foreign accent is evidence of discrimination based on race or national origin

Jeudy v City of New York, 2016 NY Slip Op 06045, Appellate Division, First Department

St. Jean Jeudy, born in Haiti, emigrated to the United States in 1994 and received a bachelor's degree in forensic science in 2003. Employed as a Criminalist I-B at New York City’s Office of the Chief Medical Examiner [OCME], in 2007 he applied for promotion to Criminalist II in early 2007 and was rejected.

By late 2010, Jeudy had been by employed by OCME for more than six years, but was still in an entry-level Criminalist I-B position. In contrast, a number of "non-black, American-accented" criminalists who were junior to him were promoted to Criminalist II and III.

Jeudy continued applying for promotion, and continued to be rejected. In March 2011, at his 2010 year-end review meeting, his supervisor told him that he was not being promoted because of his foreign accent. According to Jeudy, management had a standing practice of not promoting foreign-accented criminalists to Criminalist II, the level at which criminalists would be expected to testify in court, because management did not believe that foreign-accented criminalists could testify effectively.

The Appellate Division’s decision reports that:

1. A “Criminalist III told Jeudy that, as a result of his persistence and repeated complaints about not being promoted, management was 'out to get him'.”

2. “Thereafter, managers, including the heads of the Homicide and Sex Crimes Group to which Jeudy was assigned, embarked on a campaign to write [him] up for minor errors and give him unfavorable year-end reviews.”

3. Jeudy was served with “disciplinary charges and a suspension, which were resolved by a probationary retraining period.”

4. Jeudy “was given an unfavorable "Conditional" final performance rating, which was inconsistent with the favorable preliminary review he had been given only a month earlier.”

5. These actions resulted in Jeudy’s termination effective February 12, 2014.

In May Jeudy filed an Article 78 petition in Supreme Court asserting causes of action for racial and national origin discrimination and retaliation in violation of the New York State and New York City Human Rights Laws [HRL].

Supreme Court granted the City motion to dismiss Jeudy’s complaint on the grounds that they were [1] time-barred and that [2] he failed to state a cause of action. Jeudy appealed.

With respect to the question of timeliness, the Appellate Division said that the statute of limitations under the State and City HRLs is three years. Thus, said the court, as Jeudy filed his complaint in this action on May 23, 2014, allegedly discriminatory acts committed before May 23, 2011 are facially untimely. However, said the court, his claims under the New York State HRL for failure to promote after May 23, 2011 are timely as Jeudy had alleged sufficient facts to meet his pleading burden for purposes of defeating the City’s motion to dismiss.

Further, said the court, his claims for failure to promote under the City HRL were also timely as Jeudy has adequately alleged "a single continuing pattern of unlawful conduct [starting from his first promotion rejection in 2007] extending into the [limitations] period immediately preceding the filing of the complaint” which permits consideration under the City HRL of all actions relevant to that claim, including those that would otherwise be time-barred.*

In the words of the Appellate Division, “it is undisputed that [Jeudy] made out the first three elements of his claim of invidious employment discrimination under the State and City HRLs. We find that he also made out the fourth element, that he was adversely or differently treated because of his race or national origin ... by alleging that management had a standing practice of refusing to promote foreign-accented criminalists, invoked this practice against him, and ultimately suspended and then terminated him when he persisted in seeking promotion and complaining about his rejections."

The court said that notwithstanding the City’s contentions to the contrary, “disparate treatment on the basis of a foreign accent is evidence of discrimination based on race or national origin.”

In addition, the court noted that Jeudy’s complaint also state a cause of action for retaliation under both the State and City HRLs, rejecting the City’s argument that  Jeudy had not been engaged in a protected activity. The Appellate Division explained that as Jeudy’s complaint was that he was not being promoted on account of his accent and a “plaintiff's foreign accent is inextricably linked with his national origin.”

The Appellate Division also rejected the City’s arguments that Jeudy failed to show a causal relationship between his complaints and his suspension and termination and the allegations in his complaint establish that the City's concerted campaign of excessive scrutiny following Jeudy's persistent applications for promotion and complaints about continual rejection was calculated to, and did, lead directly to his suspension and termination.

* The Appellate Division also noted that “… while, as plaintiff concedes, the continuing violations doctrine only applies to his claims of failure to promote under the City HRL [citations omitted], even under the State HRL, he ‘is not precluded from using the prior acts as background evidence in support of a timely claim.’”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_06045.htm