There is no fundamental right to government employment within the meaning of the Equal Protection Clause

Vehicle and Traffic Law §236(2)(d) provides that hearing examiners of a municipality's parking violations bureau "shall not be considered employees of the city in which the administrative tribunal has been established."

Plaintiff's in the action challenged this "employment exclusion" set out in the Vehicle and Traffic Law, contending it was unconstitutional. The Appellate Division disagreed, holding the limitation was constitutional  under the New York State Constitution. The court explained that the Plaintiffs failed to state a claim that the provision that hearing examiners of a municipality's parking violations bureau "shall not be considered employees of the city in which the administrative tribunal has been established" is unconstitutional, having failed to identify any State law or regulation independent of the Constitution that confers upon a property interest in the employment status they seek, being deemed to be an employee of a municipality that designated them parking violations hearing examiners.

Further, said the court citing Winkler v Spinnato, 72 NY2d 402, "there is no fundamental right to government employment for purposes of the Equal Protection Clause.

The Appellate Division also rejected Plaintiffs argument that Vehicle and Traffic Law §236(2)(d) violates the labor-not-a-commodity clause contained in Article, §17 as the provision "merely guarantees to employees in New York the right to organize into trade unions free from prosecution under the antitrust laws as combinations or conspiracies in restraint of trade." Nor, said the court, is the merit-and-fitness clause in Article VI, §5 applicable. Accordingly Plaintiffs' claimed property deprivations fail to state a claim for alleged violations of these clauses as well.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03543.htm

Termination by operation of law

The appointing authority summarily terminated two tenured correction officers under color of  Public Officers Law §30(1)(e). Contending that they were denied the required "disciplinary notice and hearing" as a condition precedent to their dismissal, they initiated an action pursuant to CPLR Article 78 seeking a court order directing their reinstatement to their former positions. The Supreme Court denied their petitions, which ruling was unanimously affirmed by the Appellate Division.

Public Officers Law §30.1 addresses the "Creation  of vacancies" and Subdivision e, in pertinent part provides that an individual's public office shall be vacant upon the "(e)His* conviction of a felony, or a crime involving a violation of his oath of office,...."

The Appellate Division explained that both correction officers** were properly terminated from their positions pursuant to Public Officers Law §30(1)(e), as they were each was charged and convicted of official misconduct in violation of Penal Law §195.00 and a conviction of official misconduct involves misconduct in the line of duty and necessarily involves a violation of the individual's oath of office.

As both correction officers were terminated from their respective positions pursuant to Public Officers Law §30(1)(e), they were not entitled to a pre-termination hearing pursuant to Civil Service Law §75(1)(a) or a disciplinary procedure set out in a collective bargaining agreement negotiated pursuant to Article 14 of the Civil Service Law [the Taylor Law].

* §22 of the General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.”

** Law enforcement personnel including correction officers are public officers subject to the provisions of Public Officers Law §30(1)(e) [see Graham v Coughlin, 72 NY2d 1014].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03535.htm

Denying a Freedom of Information Law request for certain unredacted records and reports concerning a correction officer's acts or omissions in the performance of his or her duties

§50-a.1 of the Civil Rights Law concerning the production of the personnel records of police officers, firefighters and correction officers, provides that "[a]ll personnel records used to evaluate performance toward continued employment or promotion under the control of any police agency or department of the state or any political subdivision thereof including authorities or agencies maintaining police forces of individuals defined as police officers in §1.20 of the criminal procedure law and such personnel records under the control of a sheriff's department or a department of correction of individuals employed as correction officers and such personnel records under the control of a paid fire department or force of individuals employed as firefighters or firefighter/paramedics and such personnel records under the control of the department of corrections and community supervision for individuals defined as peace officers pursuant to subdivisions twenty-three and twenty-three-a of §2.10 of the criminal procedure law and such personnel records under the control of a probation department for individuals defined as peace officers pursuant to subdivision twenty-four of §2.10 of the criminal procedure law shall be considered confidential and not subject to inspection or review without the express written consent of such police officer, firefighter, firefighter/paramedic, correction officer or peace officer within the department of corrections and community supervision or probation department except as may be mandated by lawful court order."

In response to a demand for certain records involving the activities and conduct of correction officers, the Appellate Division said that its in camera review of a sampling of the requested documents in unredacted form "reveals that the factual description of events contained in the reports was 'neutral and did not contain any invidious implications capable facially of harassment or degradation of the officer in a courtroom'." To comply with the legislative objective of Civil Rights Law §50-a, explained the court, the custodian of the record must demonstrate a "substantial and realistic potential" for the unredacted reports to be used against the officers in a harassing or abusive manner.

Citing Matter of Patrolmen's Benevolent Assn. of the City of N.Y., Inc. v De Blasio, 169 AD3d at 519, the Appellate Division concluded that the nature and a facility's use of unusual incident reports, use of force reports and misbehavior reports, as well as their lack of potential to be used abusively against correction officers, are such that the documents do not qualify as personnel records within the meaning of Civil Rights Law §50-a. Accordingly such unredacted documents are not exempt from disclosure under Public Officers Law §87(2) and the documents should be provided in "unredacted form."

In response to a demand for certain records involving the activities and conduct of correction officers, the Appellate Division said that its in camera review of a sampling of the requested documents in unredacted form "reveals that the factual description of events contained in the reports was 'neutral and did not contain any invidious implications capable facially of harassment or degradation of the officer in a courtroom'." To comply with the legislative objective of Civil Rights Law §50-a, explained the court, the custodian of the record must demonstrate a "substantial and realistic potential" for the unredacted reports to be used against the officers in a harassing or abusive manner.

Citing Matter of Patrolmen's Benevolent Assn. of the City of N.Y., Inc. v De Blasio, 169 AD3d at 519, the Appellate Division concluded that the nature and a facility's use of unusual incident reports, use of force reports and misbehavior reports, as well as their lack of potential to be used abusively against correction officers, are such that the documents do not qualify as personnel records within the meaning of Civil Rights Law §50-a. Accordingly such unredacted documents are not exempt from disclosure under Public Officers Law §87(2) and the documents should be provided in "unredacted form."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03421.htm