A Freedom of Information demand may trump an agreement to keep some or all of the terms of a disciplinary action settlement "confidential"

A Freedom of Information demand may trump an agreement to keep some or all of the terms of a disciplinary action settlement "confidential"
Santostefano v Middle Country Cent. Sch. Dist., 2017 NY Slip Op 09188, Appellate Division, Second Department

Guy Santostefano, employed as an educator by the Middle Country Central School District [District] In May 2015, was served with disciplinary charges pursuant to Education Law §3020-a. In August, 2015, Santostefano entered into a settlement agreement with the District resolving the charges, which agreement required Santostefano to resigned from the District effective August 6, 2015, whereupon the District would withdraw the charges it had filed against Santostefano.

In January 2016, Santostefanocommenced an action to vacate the settlement agreement alleging, in effect, that the terms of the settlement agreement permitting the District to disclose to Santostefano's prospective employers that Santostefano was brought up on disciplinary charges had caused harm to his career. Santostefano also alleged, among other things, that he was fraudulently induced into executing the settlement agreement.

The District asked Supreme Court to dismiss Santostefano'scomplaint based on his failure to timely serve a notice of claim, and for failure to state a cause of action. Supreme Court granted the District's motion and Santostefano appealed.

As to Santostefano's failure to serve a notice of claim, the Appellate Division, noting that "In general, the service of a timely notice of claim pursuant to Education Law §3813(1) is a condition precedent to the commencement of an action or proceeding against a school district, and failure to comply with this requirement is a fatal defect [except] when a litigant seeks only equitable relief, or commences a proceeding to vindicate a public interest."

Here, said the court, Santostefanosought to vindicate a private right, Supreme Court properly granted the District's motion to dismiss his complaint for failure to timely serve a notice of claim.

Addressing this issue of Santostefano's claim that he had been "fraudulently induced into entering into the settlement agreement, the Appellate Division observed that "To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR §3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law." Here, said the court, the settlement agreement "utterly refuted" Santostefano's factual allegations and "conclusively established a defense to the complaint as a matter of law" as the settlement agreement conclusively established a defense to the allegations that Santostefanowas fraudulently induced into entering into the settlement agreement by the District's oral representations, as those allegations were barred by the specific disclaimer provisions contained in the settlement agreement.

With respect to disclosing the terms of a settlement agreement resolving a disciplinary action, is does such an agreement trump a Freedom of Information demand to disclose the terms of the disciplinary settlement?

Consider the ruling in LaRocca v Jericho UFSD, 220 AD2d 424.

In LaRocca, the Jericho School District had filed disciplinary charges against the principal of one of its schools. Subsequently the Jericho School Board authorized its superintendent to negotiate a settlement that would dispose of the matter. A settlement was reached and the Board adopted a motion withdrawing its charges against the principal without prejudice.

Anthony LaRocca, vice-president of the Jericho Teachers Association, asked for a copy of the settlement agreement on behalf of the teachers supervised by the principal.

LaRocca’s request was denied on the grounds that (a) providing the teachers with a copy “would constitute an unwarranted invasion of personal privacy” and (b) the document relates to “intra-agency or inter-agency materials which the School District is not required to disclose.” LaRocca sued under the Freedom of Information Law [FOIL] (Article 6, Public Officers Law), contending that all records of a public agency are “presumptively accessible” and the settlement agreement did not fall within any of the recognized exceptions set out in FOIL.

Although Supreme Court dismissed LaRocca’s petition [LaRocca v Jericho UFSD, 159 Misc2d 90], the Appellate Division reversed, explaining that the settlement agreement did not constitute an “employment history” as defined by FOIL and therefore is presumptively available for public inspection. Significantly, the Appellate Division said that “as a matter of public policy, the Board of Education cannot bargain away the public’s right to access to public records.”

The Appellate Division ruled that the settlement agreement or any part of it providing for confidentiality or purporting to deny the public access to the document “is unenforceable as against the public interest.”

In contrast, however, the court opined that where a settlement agreement provided that the parties would keep its terms “confidential,” its subsequent disclosure pursuant to FOIL does not necessarily excuse a party breaching other terms and conditions unrelated to such disclosure set out in the agreement [see Gosden v Elmira City School District, 90 AD3d 1202]. The settlement agreement targeted in LaRocca contained references to charges that the principal denied or were not admitted, together with the names of certain teachers. The Appellate Division ruled that disclosure of such parts of the settlement agreement would constitute an unwarranted invasion of privacy within the meaning of FOIL.

Another decision, Anonymous v Board of Education of the Mexico Central School District, 62 Misc 2d 300, indicates that a public employer may not, by private agreement, limit the public’s right to access to records which are otherwise subject to disclosure under FOIL. In Mexico the court said that an agreement to keep secret that to which public has a right of access under FOIL unenforceable as against public policy.

In addition, State Education Law §1133.1 provides that a school administrator or superintendent shall not make any agreement to withhold from law enforcement authorities, the superintendent or the commissioner, where appropriate, the fact that an allegation of child abuse in an educational setting on the part of any employee or volunteer as required by Article 23-B of the Education Law in return for the resignation or voluntary suspension from his or her position of such person, against whom the allegation is made.

The Santostefano decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_09188.htm

Selected reports posted in Employment Law News by WK Workday

Selected reports posted in Employment Law News by WK Workday

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Selected reports posted by WK Workday January 2, 2018

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Union's duty of fair representation

Union's duty of fair representation

Okpo v City of New York, 2017 NY Slip Op 09272, Appellate Division, First Department

In the words of the Appellate Division, "[t]he nature and purpose of the duty of fair representation — representation in collective bargaining grievances — thus does not support expansion of the duty to cover article 78 proceedings."*

Pauline Okpo, a probationary employee, was terminated from her position and filed a grievance objecting to her dismissal. The union declined to challenging Okpo's dismissal and Okpo initiated an Article 78 in Supreme Court. Supreme Court granted the union's motion for summary judgment and dismissed Okpo's complaint.

The Appellate Division unanimously affirmed the Supreme Court's ruling, explaining:

1. As a probationary employee, Okpo's termination was not the basis for a "grievance" under the controlling collective bargaining agreement [CBA]. Accordingly, the employee organization had no duty of fair representation with respect to Okpo's challenging her termination during her probationary period:

2. Assuming that the employee organization did, in fact, owed Okpo a duty of fair representation, it would nonetheless have had no duty to initiate a CPLR Article 78 proceeding on her behalf challenging her termination while serving as a probationary employee as "[t]he duty of fair representation is rooted in the bargaining agent's exclusive statutory authority to pursue grievances on behalf of covered employees under the CBA"; and

3. The nature and purpose of the duty of fair representation — representation in collective bargaining grievances and such a duty does not support expansion of the duty to cover Article 78 proceedings.

In contrast, the Appellate Division pointed out that as a probationary employee, however, Okpo could have challenged her termination herself in an Article 78 proceeding (see e.g. Matter of Castro v Schriro, 140 AD3d 644, affd29NY3d 1005).

* Typically litigation arising involving collective bargaining grievances would be prosecuted pursuant to Article 75 of the Civil Practice Law and Rules.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_09272.htm