Footage at issue captured by a body-worn-camera held not a "personnel record" within the meaning of §50-a of the Civil Rights Law

Footage at issue captured by a body-worn-camera held not a "personnel record" within the meaning of §50-a of the Civil Rights Law

Patrolmen's Benevolent Assn. of the City of N.Y., Inc. v De Blasio, 2019 NY Slip Op 01170, Appellate Division, First Department

Pursuant to New York State's Civil Rights Law §50-a, the personnel  records  of sworn police  officers used   to   evaluate   performance  with respect to an officer's continued employment or promotion "shall be considered confidential and not subject to inspection or review  without the express written consent of the police officer except as may be mandated by lawful court order."*

The Patrolman's Association of the City of New York [PBA] challenged New York City's [City] public release of police department body-worn-camera footage without a court order or the relevant officer's consent. Supreme Court denied the PBA's motion for a preliminary injunction on the grounds that the PBA "could not maintain this hybrid action because there is no private right of action under Civil Rights Law §50-a."

PBA appealed the Supreme Court's ruling. The Appellate Division unanimously affirmed the result of the lower court's decision, the release of the camera footage to the public could not be suppressed, but for a significantly different reason.

The Appellate Division agreed that although §50-a does not provide a private right of action, this does not serve to preclude review of the PBA's request for injunctive relief in an Article 78 proceeding "because the statute creates protected rights (for police officers) and does not explicitly prohibit a private right of action or otherwise manifest a clear legislative intent to negate review." However, said the court, PBA's petition must be denied because body-worn-camera footage at issue does not constitute a personnel record within the meaning of §50-a.

The Appellate Division explained that in order to determine whether something is a "personnel record" within the meaning of §50-a of the Civil Rights Law, the threshold question is to determine whether the documents are "of significance to a superior in considering continued employment or promotion." In this instance the court decided that "given its nature and use, the body-worn-camera footage at issue is not a personnel record covered by the confidentiality and disclosure requirements of §50-a" but rather satisfies other key objectives of a body camera program such as "transparency, accountability, and public trust-building."

Citing  Matter of Prisoners' Legal Servs., 73 NY2d 26, the Appellate Division noted that the Court of Appeals has held that, in the context of a FOIL disclosure of an officer's personnel records, preventing such disclosure requires more than merely demonstrating that the document "may be used" to evaluate performance.

Rejecting the PBA's argument that "the body-worn-camera was designed in part for performance evaluation purposes and is clearly 'of significance' to superiors in considering employment or promotion" and a finding that body camera footage "is not a personnel record" would result in an unprecedented invasion of privacy, the Appellate Division explained that "given its nature and use," the body-worn-camera footage at issue is not a personnel record covered by the confidentiality and disclosure requirements of §50-a. The footage here, said the court, is more in the nature of an arrest or stop report, "not records primarily generated for disciplinary and promotional purposes."

In the words of the Appellate Division, "[a]lthough the body-worn-camera program was designed, in part, for performance evaluation purposes, and supervisors are required, at times, to review such footage for the purpose of evaluating performance, the footage being released here is not primarily generated for, nor used in connection with, any pending disciplinary charges or promotional processes."

* The provisions of Civil Rights Law §50-a also extend to a sworn officer in a sheriff's department, a firefighter, a firefighter/paramedic, a correction officer or peace officer serving with a department of corrections and community supervision or a probation department except as may be mandated by lawful court order.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01170.htm

Disqualifying an applicant for examination or for appoint to, or continued employment in, a position in the classified service

Disqualifying an applicant for examination or for appoint to, or continued employment in, a position in the classified service

Sokol v New York City Civ. Serv. Commn., 2019 NY Slip Op 01314, Appellate Division, First Department

The New York City Civil Service Commission determined that Plaintiff, a candidate seeking appointment as a New York City police officer, was not qualified for the position. Supreme Court dismissed Plaintiff's CPLR Article 78 action challenging the Commission's decision and Plaintiff appealed.

The Appellate Division unanimously affirmed the Supreme Court's dismissal of Plaintiff's Article 78 action. Citing Matter of Smith v City of New York , 228 AD2d 381,  the court explained that "Wide discretion is afforded to civil service commissions in determining the fitness of candidates," and "[t]he exercise of that discretion is to be sustained unless it has been clearly abused."

Noting that Plaintiff had not shown that the Commission's decision disqualifying Petitioner for appointment to the position of police officer was arbitrary and capricious or made in bad faith. Rather, said the Appellate Division, the Commission's determination was rationally based on a number of factors, including, but limited to, Plaintiff's making inaccurate relevant statements in application forms.

§50.4 of the Civil Service Law provides that the State Civil Service Department and appropriate municipal civil service commissions may refuse to examine an applicant, or after examination to certify an eligible for appointment for a number of reasons, including, but not limited to, having been found to lack any of the established requirements for admission to the examination or for appointment to the position or having been found to have intentionally made a false statement of any material fact in his or her application.

No person, however, may be disqualified pursuant to §50.4 unless he or she has been given a written statement of the reasons such disqualification and allowed to submit an explanation and to submit facts in opposition to such disqualification.*

In addition, §50.4 authorizes the review of the qualifications and background of an eligible after he or she has been placed on an eligible list or has been appointed to a position from an eligible list and further provides:

 1.  An individual may be disqualified for the position to which he or she has been appointed "upon finding facts which if known prior to appointment, would have warranted his [or her] disqualification," or "upon a finding of illegality, irregularity or fraud of a substantial nature in his [or her] application, examination or appointment," and

 2. The Civil Service Department or the responsible municipal civil service commission may "revoke such eligible's certification and appointment and direct that his [or her] employment be terminated, provided, however, that no such certification shall be revoked or appointment terminated more than three years after it is made, except in the case of fraud."

* In Mingo v Pirnie, 55 NY2d 1019, the Court of Appeals noted that no §50.4 hearing is required where the individual is advised of the reasons for the proposed action and given an opportunity to submit a written explanation and exhibits contesting his or her disqualification or termination.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_01314.htm

San Francisco using algorithm to wipe out Marijuana convictions

San Francisco using algorithm to wipe out Marijuana convictions

By Christopher Coble, Esq. 

Mr. Coble's article is posted on the Internet at:

https://blogs.findlaw.com/legally_weird/2019/02/sf-using-algorithm-to-wipe-out-weed-convictions.html?DCMP=cons_top:nwl

Emoji evidence is more than a thing

Emoji evidence is more than a thing

By William Vogeler, Esq. 

Mr. Vogeler's article is posted on the Internet at: https://blogs.findlaw.com/strategist/2019/02/emoji-evidence-is-more-than-a-thing.html?DCMP=cons_top:nwl

An ambiguity in a provision in a collective bargaining agreement may sometimes be resolved by waiving the parol evidence rule

An ambiguity in a provision in a collective bargaining agreement may sometimes be resolved by waiving the parol evidence rule

Baff v Board of Educ. of The Fonda-Fultonville Cent. Sch. Dist., 2019 NY Slip Op 01476, Appellate Division, Third Department

Certain retired teachers [Plaintiffs], previously employed by Fonda-Fultonville Central School District, were  members of Fonda-Fultonville Teachers' Association. Between 1976 and 2013 the District and the Association, here collectively the "Defendants", had entered into various collective bargaining agreements [CBAs] that set forth terms and conditions of employment including, among other things, retiree health insurance coverage and benefits. 

The relevant provisions in the several CBAs provided that Plaintiffs' health insurance benefits would be continue in retirement "on the same basis as they have in the past." In 2013, however, Defendants changed Plaintiffs' health insurance coverage and benefits, resulting in, among things, increased costs and expenses and changes in coverages. Plaintiffs commenced a combined CPLR Article 78 proceeding and declaratory judgment action seeking, among other things, a court order declaring that they were entitled to a continuation of the same health insurance benefits that they had been receiving at the time they retired.

Supreme Court dismissed a number of Plaintiffs' causes of action and only the declaratory judgment and breach of contract causes of action survived. Plaintiffs and Defendants, respectively, moved for summary judgment on these causes of action. Supreme Court denied both Plaintiffs' motion and Defendants' cross motion for summary judgment and they, respectively, appealed and cross-appealed* the court's rulings.

As framed by the Appellate Division, the dispute here centered on the phrase, "on the same basis as they have in the past." Opining that the phrase was "susceptible of different constructions and capable of being understood in more than one sense," and thus it could be viewed as ambiguous, the Appellate Division concluded that it was "a threshold question to be resolved by the court."  Accordingly, said the court, "Supreme Court correctly resorted to parol evidence**to resolve the phrase's ambiguity."

Plaintiffs had submitted affidavits attesting "it was understood" that the Defendants would continue to provide the same health insurance benefits that employees had been receiving when they retired until their deaths. Plaintiffs involved in the collective bargaining process also represented that in the course of negotiations [1] "it was understood that the health insurance benefits for retirees would not be limited in any way" and [2] such benefits would "continue for the retirees' respective lifetimes." Further, one of these Plaintiffs stated that "when there was a switch in health providers, such change applied only to current teachers and not to retirees."

On the other hand, a former school superintendent who was involved in the negotiations of the CBAs and a business administrator for the district each submitted affidavits indicating that that [1] the phrase in dispute meant that "the percentage that each plaintiff contributed during his or her last year of teaching would be the same throughout retirement" and [2] that the district was not precluded from changing health plans. The business administrator also stated that there was a prior change resulting in an increased deductible for Plaintiffs and that Plaintiffs had not then objected to that change.

In consideration of these different contentions, the Appellate Division concluded that the record discloses a triable issue of fact as to the parties' intentions regarding Plaintiffs' health insurance coverage during retirement and that Supreme Court's denial of Plaintiffs' motion for summary judgment was proper.

* The Appellate Division noted that although Defendants indicated it was withdrawing its cross motion, the necessary steps had not been taken to formally do so.

** The rule against the use of parol evidence typically prevents the introduction of evidence of prior or contemporaneous negotiations and agreements that contradict, modify, or differ from the contractual terms of a written contract. The Appellate Division held that Supreme Court was correct in not applying the rule in this instance.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01476.htm