The employer's annual reviewing and approving requests for the assignment an agency vehicle to an employee does not create a past practice

The employer's annual reviewing and approving requests for the assignment an agency vehicle to an employee does not create a past practice

Spence v New York State Dept. of Transp., 2018 NY Slip Op 08594, Appellate Division, Third Department

Certain employees serving with Department of Transportation [DOT] were assigned state-owned vehicles for work and, in some instances, several employees seeking to use the vehicle for commuting as well as for work was authorized.

Wayne Spence, as President of the New York State Public Employees Federation [Petitioner] filed an improper practice charge with Public Employment Relations Board [PERB] alleging that DOT violated the Taylor Law when it unilaterally discontinued providing state-owned vehicles to some of the employees that had submitted a request seeking be assigned a DOT vehicle . After a hearing, an Administrative Law Judge found that DOT's action constituted a violation of the Taylor Law.

DOT appealed and PERB reversed the Administrative Law Judge's decision. PERB, concluding that because DOT retained the discretion to annually review whether employees should be assigned a state-owned vehicle, such employees could not have a reasonable expectation that they would always be provided one.

Petitioner next files an Article 78 petition with Supreme Court seeking a court order annulling PERB's determination. Ultimately the matter was transferred to the Appellate Division.

The Appellate Division found that:

1. The Taylor Law requires all public employers and employee organizations to negotiate in good faith to determine the terms and conditions of employment of employees in the negotiating unit.

2. Where PERB's determination is made after an administrative hearing, such determination must be supported by substantial evidence.

The court found that the record revealed that DOT's assignment of state-owned vehicles to DOT employees was governed by various criteria set out in a manual that had to be met in order for a state-owned vehicle to be assigned. In addition, the manual required the employee seeking to be assigned a state-owned vehicle to submit a "Form EM-30" and justify his or her need for the state-owned vehicle and its use annually.

PERB concluded that "a past practice of assigning state-owned vehicles with commuting privileges did not exist." In this regard, PERB found that the employees had to annually request such vehicle pursuant to a DOT policy and that DOT retained the discretion to approve or deny such request and, therefore, the employees could not reasonably expect to be assigned a vehicle.

The Appellate Division found that PERB's determination was supported by substantial evidence in the record and although the vehicle requests were routinely approved, that fact did not create a past practice nor divest DOT of its right to exercise its discretion in granting or denying the requests or the use of the vehicle for commuting to and from work.

Citing State of New York Dept. of Correctional Servs. v Kinsella, 220 AD2d 19, the court held that "because PERB's determination is supported by substantial evidence, it will not be disturbed notwithstanding the fact that the record contains evidence that would support a contrary result."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08594.htm

Certain personnel records are exempt from disclosure pursuant to Public Officers Law §87(2)(a) and Civil Rights Law §50-a even in a redacted form

Certain personnel records are exempt from disclosure pursuant to Public Officers Law §87(2)(a) and Civil Rights Law §50-a even in a redacted form

New York Civ. Liberties Union v New York City Police Dept., 2018 NY Slip Op 08423, Court of Appeals

New York State's Civil Rights Law §50-a requires that police officer personnel records be kept confidential and sets out a procedure to obtain a court order of disclosure of such records. The New York Civil Liberties Union [NYCLU] sought the disclosure of protected personnel records and documents generated in connection with New York City Police Department [NYPD] disciplinary proceedings that arose out of allegations referred to the NYPD by the New York City Civilian Complaint Review Board [CCRB] NYPD  pursuant to a Freedom of Information Law [FOIL]* request, contending that compliance with Civil Rights Law §50-a is unnecessary where an officer's identifying information is adequately redacted.

The Court of Appeal disagreed, holding that the personnel records requested by NYCLU are exempt from disclosure pursuant to Public Officers Law §87(2)(a) and Civil Rights Law §50-a even in a redacted format.

The CCRB is an independent City agency empowered to receive and investigate allegations of police misconduct involving NYPD officers. If the CCRB "substantiates" a complaint against an officer, it may refer the case to the NYPD for formal disciplinary action. If the NYPD decides to prosecute subject officer, the officer is served with written "Charges and Specifications" setting out the alleged misconduct. Disciplinary proceedings are then by NYPD's internal adjudicatory forum, which hearings are open to the public.

NYCLU submitted a FOIL request to the NYPD seeking (1) "[c]opies of all final opinions, dated from January 1, 2001 to present adjudicating charges and specifications arising out of cases in which the CCRB has substantiated charges against a member of the department," and (2) "[c]opies of documents identifying the formal and final discipline imposed in conjunction with each decision."

The NYPD denied the request, reasoning that the requested records were exempt from disclosure under several FOIL exemptions, including Public Officers Law §87(2)(a), which provides an exception for records that are "specifically exempted from disclosure by state or federal statute." NYPD, among other things, asserted that the records were protected by Civil Rights Law §50-a since they "are used to evaluate the continued employment of police officers by the NYPD."

In response to NYCLU's administrative appeal NYPD granted NYCLU's of the denial of its FOIL request, its appeal was in part and NYPD provided it with more than 700 pages of Disposition of Charges forms with redactions intended to conceal the identifying information of the subject officers and complainants. With respect to the NYCLU's request for "final opinions" -- the approved Report and Recommendation documents -- NYPD denied the appeal, again concluding that the documents were exempt from disclosure pursuant to Public Officers Law §87(2)(a) and Civil Rights Law §50-a, among other FOIL exemptions, noting that Civil Rights Law §50-a "defines a process which is the exclusive means for obtaining records that fall within its purview" and requires, among other things, "giving notice to the police officer who is the subject of the records, and obtaining a court order directing disclosure pursuant to the process defined in [Civil Rights Law] §50-a(2)."

NYCLU next filed a CPLR Article 78 petition seeking a court order requiring the disclosure of the disciplinary records withheld NYPD. Supreme Court denied the NYPD's subsequent motion to dismiss and directed the NYPD to "select five decisions at random, and redact them to remove anything to identify the subject of the complaint." Supreme Court further ordered the NYPD to notify the subject officers of the proceeding and the proposed redactions. NYPD complied by submitted the redacted documents to Supreme Court for in camera review. NYPD also filed an answer to the NYCLU's petition, contending that disclosure of the documents, even in redacted form, was prohibited by Civil Rights Law §50-a because the redactions could not adequately conceal the officers' identities. The five subject officers similarly objected to the disclosure of the redacted documents.

Supreme Court "deem[ed] the redactions adequate" and ordered that "[a]ll future requests are to be done as were the five in camera submissions. NYPD appealed.

The Appellate Division, citing Short v Board of Mgrs. of Nassau County Med. Ctr., 57 NY2d 399, and Karlin v McMahon, 96 NY2d 842, unanimously reversed the lower court's ruling explaining these two decisions provided "controlling precedent" and thus it could not "order [NYPD] to disclose redacted versions of the disciplinary decisions.

The Court of Appeals said that the disciplinary decisions requested by the NYCLU are quintessential "personnel records" protected by Civil Rights Law §50-a, a statute designed to protect police officers from the use of their records "as a means for harassment and reprisals and for purposes of cross-examination by plaintiff's counsel during litigation." Further, said the court, the protection afforded by Civil Rights Law §50-a is not limited to the context of actual or potential litigation as the "legislative objective" of section 50-a extends "beyond precluding disclosure on behalf of defendants in pending litigation"; it seeks to prevent any "abusive exploitation of personally damaging information contained in officers' personnel records."

The Court of Appeals explained that the documents at issue here are " the very sort of record'" presenting a potential for abusive exploitation and intended to be kept confidential under Civil Rights Law §50-a. Noting that NYCLU's FOIL request seeks internal police department disciplinary records, spanning a 10-year period, that arise from civilian complaints against NYPD officers described the records sought as being "replete with factual details regarding misconduct allegations, hearing judges' impressions and findings, and any punishment imposed on officers," opining that such material was ripe for "degrad[ing], embarrass[ing], harass[ing] or impeach[ing] the integrity of [an] officer", concluding that the documents are, accordingly, "protected from disclosure under Civil Rights Law §50-a."

The court then observed that:

1.  "There can be no question" that Civil Rights Law §50-a permits court-ordered disclosure but "only in the context of an ongoing litigation; and

2. Absent officer consent, protected personnel records are shielded from disclosure "except when a legitimate need for them has been demonstrated to obtain a court order" based on a "showing that they are actually relevant to an issue in a pending proceeding."

In this instance, said the court, and in the context of the NYCLU's FOIL request, the requested records are not "relevant and material" to any pending litigation (Civil Rights Law § 50-a [3]), and accordingly, they are not disclosable.

The court of Appeals also noted that the FOIL exemption at issue, Public Officers Law §87(2)(a), applies not only to §50-a personnel records, but to all records covered by the various "state or federal statutes" that serve to protect the confidentiality of countless categories of individuals, including, but not limited to, sex offense victims; medical patients; and prospective jurors.

Noting that "nothing in FOIL" prohibits an agency from "disclos[ing] exempt records at [its] discretion," there are distinct and mandatory New York statutory provisions expressly operating to guarantee confidentiality notwithstanding FOIL's permissive disclosure regime.

Opinion by Judge Garcia. Chief Judge DiFiore and Judges Fahey and Feinman concur. Judge Stein concurs in result in an opinion. Judge Rivera dissents in an opinion. Judge Wilson dissents in a separate dissenting opinion.

* The basic concept underlying FOIL is that all government documents and records, other than those having access specifically limited by statute, are available to the public. The custodian of the records or documents requested may elect, but is not required, to withhold those items that otherwise within the ambit of the several exceptions to disclosure permitted by FOIL. In other words, there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.  The release of some public records, however, may be limited by statute such as Education Law §1127 - Confidentiality of records and §33.13 of the Mental Hygiene Law - Confidentiality of clinical records.  

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08423.htm

A three-part test is applied by the court to determine if a party to a collective bargaining agreement's demand for arbitration is viable

A three-part test is applied by the court to determine if a party to a collective bargaining agreement's demand for arbitration is viable

City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 2018 NY Slip Op 08294, Appellate Division, Second Department

The collective bargaining agreement [CBA] between Local 328 and the City of Yonkers provides a three-step grievance procedure to resolve a dispute involving the interpretation or application of any provision of the CBA. In the event the grievance is not administratively resolved at any of the three step of the grievance procedure, the City or Local 328, as the case may be, may elect to submit the dispute to arbitration.

When the City issued a General Order, General Order No. 4-15, changing certain dispatch response protocols for Emergency Medical Service [EMS] personnel to include new or additional incidents, Local 628 filed a grievance asserting, among other things, that the new protocols had not negotiated with it. After exhausting its internal grievance remedies, Local 628 filed a timely demanded for arbitration of the dispute.

In response to Local 628's demand for arbitration, the City had initiated this Article 75 proceeding in Supreme Court seeking an order permanently staying arbitration, contending that the dispute was not arbitrable. Supreme Court agreed with the City argument and, in effect, granted the City's petition to permanently stay arbitration.

Local 628 appealed the Supreme Court's ruling and the Appellate Division reversed the Supreme Court's determination "on the law."

The Appellate Division, citing Matter of City of Long Beach v Civil Serv. Empls. Assn., Inc., Long Beach Unit, 8 NY3d 465, explained that "[p]ublic policy in New York favors arbitral resolution of public sector labor disputes." A dispute between a public sector employer and an employee, however, is only arbitrable if it satisfies a two-prong test.

Initially the court must determine that there is no statutory, constitutional, or public policy prohibition against arbitrating the grievance. If the demand for arbitration survives this judicial test, the court must then "examine the parties' collective bargaining agreement and determine if they in fact agreed to arbitrate the particular dispute." Further, when deciding whether a dispute is arbitrable the court may not consider the merits of the dispute as the arbitrator is charged with weighing the merits of the claim.

Noting that it was undisputed that there is no statutory, constitutional, or public policy prohibition to arbitration of Local 628's grievance, the Appellate Division said that the only issue to be resolved is whether the parties, in fact, agreed to arbitrate the dispute.

Citing Matter of Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v City of Cohoes, 94 NY2d 686, the Appellate Division explained that "Where, as here, the relevant arbitration provision of the CBA is broad, if the matter in dispute bears a reasonable relationship to some general subject matter of the CBA, it will be for the arbitrator and not the courts to decide whether the disputed matter falls within the CBA."

Local 628's grievance alleged that the City violated Article 33.1 of the CBA, which mandated that the EMS program be kept at the highest level of professional standards based upon the standards in place at the time of the agreement. Local 628 contended that General Order 4-15 increased the call protocols and subjected its members to calls for which they are not trained and lack necessary equipment. Accordingly, said the Appellate Division, the grievance is reasonably related to at least one provision in the CBA, and the Supreme Court should have denied the petition to permanently stay arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08294.htm