A former member of the New York City Council found to have accepted valuable gifts and services from an organization doing business with the City fined $15,000

The New York City Conflicts of Interest Board [COIB] adopted a report by New York City Office of Administrative Trials and Hearings Administrative Law Judge Kara J. Miller in which Judge Miller recommended imposing a fine of $15,000 on a former member [Respondent] of the New York City Council [Council].

ALJ Miller determined that Respondent had accepted valuable gifts and services on 18 occasions from a not-for-profit housing organization [NFP] doing business with the City of New York while serving as a member of the Council.

The NFP received $841,000 in discretionary funding from the Council which funding was sponsored by the Respondent. The ALJ held that some of these funds were used for trips and a dinner cruise around Manhattan for senior citizens living in the Respondent's district. The Respondent, while a Council member, and members of his family, participated in these trips and accepted free accommodations at a luxury resort as well as free tickets to a dinner cruise in violation of the City Conflicts of Interest Law.* The ALJ had determined that such attendance in these events did not serve a government purpose.

The COIB agreed with Judge Miller’s findings that the free hotel accommodations and dinner cruise tickets constituted valuable gifts and that Respondent's contention that his family members were serving as volunteers at the senior events was pretextual.

* The New York City Charter §2604(b)(5) states, in relevant part: “No public servant shall accept any valuable gift, as defined by rule of the board, from any person or firm which such public servant knows is or intends to become engaged in business dealings with the city,” while COIB Rule §1-01(a) defines a valuable gift to include “any gift to a public servant which has a value of $50.00 or more, whether in the form of money, service, loan, travel, entertainment, hospitality, thing or promise, or in any other form.”

Click HERE to access Judge Miller's findings and recommendation in this matter.

 

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Extensive personal involvement by the appointing authority in a §75 disciplinary proceeding requires the appointing authority to recuse himself or herself from the decision-making process

The Appointing Authority [Respondent] in this litigation filed nine charges against a staff member  [Petitioner] pursuant to Civil Service Law §75 alleging, among other things, that Petitioner had improperly used her position to her financial benefit.

The §75 Hearing Officer found Petitioner guilty if eight of the nine disciplinary charges filed against her and, with respect to the penalty to be imposed, recommended that Petitioner be terminated from her position. The Respondent accepted the Hearing Officer's findings and recommendation and dismissed Petitioner from her position with the agency. Petitioner then commenced a CPLR Article 78 proceeding challenging the Respondent's terminating her employment.

Noting that the record before it indicated that the Respondent had initiated the charges against Petitioner, appointed the §75 Hearing Officer and had testified as a witness at the §75 disciplinary hearing, the Appellate Division, citing Matter of Ashe v Town Bd. of the Town of Crown Point, N.Y., 97 AD3d 1022, opined that in view of Respondent's "extensive personal involvement" she should have disqualified herself from the decision-making aspects of the disciplinary action at large.

In the words of the court, "Although involvement in the disciplinary process does not automatically require recusal ... individuals who are personally or extensively involved in the disciplinary process should disqualify themselves from reviewing the recommendations of a Hearing Officer and from acting on the charges."

Accordingly, the Appellate Division annulled the Respondent's decision and remanded the matter "for further proceedings not inconsistent with this Court's decision."

A similar situation underlies another Appellate Division decision, summarized in NYPPL at https://publicpersonnellaw.blogspot.com/2010/07/individual-terminated-based-on.html. 

The County Board [Board] filed disciplinary charges against one its employees [Supervisor] alleging misconduct and incompetence based on complaints of sexual harassment filed by a number of women supervised by Supervisor.

Found guilty of the charges, the Board dismissed Supervisor from his position. The Appellate Division, however, annulled the determination. The court said that one of the Board members had “improperly participated in the final determination” and there was no evidence “that the members of the Board had an opportunity to review the [disciplinary hearing] record” before making its decision.

The Appellate Division returned the matter to the Board for a re-determination, without the participation of the errant Board Member.

Click HERE  to access the Appellate Division's instant decision.

 

Revealing a public employee's home ZIP code held to be an unwarranted invasion of personal privacy for the purposes of New York State's Freedom of Information Law

Petitioner [Plaintiff] filed a Freedom of Information Law [FOIL] request with the New York State Department of Civil Service [DCS] seeking a document containing the (1) full name, (2) home zip code, (3) hire date, (4) labor organization, (5) bargaining unit and (6) payroll deduction type of all state employees in Classified Service.* DCS supplied Plaintiff with all the requested data except employees' home zip codes and payroll deduction type, explaining that DCS:

1. does not maintain data concerning payroll deduction type; and

2. withheld the employee's home zip codes pursuant to Public Officers Law §§87(2)(b) and 89(7) and Governor Cuomo's Executive Order No. 183.** 

Following an unsuccessful appeal to DCS's FOIL appeals officer, Plaintiff initiated a CPLR Article 78 proceeding challenging the partial denial of his FOIL request and seeking a court order requiring DCS to disclose the requested zip codes. Supreme Court, among other things, concluded that neither the Public Officers Law nor Executive Order 8 No. 183 barred release of the zip codes, and granted so much of the petition as requested such data. DCS appealed the Supreme Court's ruling.

The Appellate Division, noting that "FOIL generally requires government agencies to make available for public inspection and copying all records subject to a number of exemptions" and that the "exemptions set forth in the statute are interpreted narrowly in order to effect the purpose of the statutory scheme," then addressed DCS's refusal to disclose the zip codes of the employees requested by Plaintiff.

The Court said the DCS had satisfied its statutory obligation to fully explain its determination in the administrative appeal by stating that the "disclosure of name and zip code pairings would invade employee privacy to an unwarranted degree, citing statutes that protect personal identifying information of the public generally and state workers in particular."  The Appellate Division then observed that DCS's burden was to articulate a "particularized and specific justification" for its denial but this obligation "did not arise until [Plaintiff] commenced this CPLR Article 78 proceeding."

In its effort to meet this burden DCS cited two statutory exemptions: one prohibiting release of records protected by a state or federal statute, specifically the statute providing that FOIL does not require the disclosure of, among other things, home addresses of public employees and a second permitting agencies to "deny access to records or portions thereof that ... if disclosed would constitute an unwarranted invasion of personal privacy."

The court opined that in "our current, highly technological environment, using a zip code or other partial address information directly matched with an individual's name could readily facilitate access to that person's complete home address." Thus, said the Appellate Division, the "FOIL rule that we interpret exemptions from disclosure narrowly" does not require that courts disregard the "commonsense understanding of legislative intent." Conceding "the somewhat novel nature" of its determination - that a zip code is the functional equivalent of an address for FOIL purpose," the Appellate Division said that it found that exemption applicable in the instant situation.

In considering this alternate grounds -- whether disclosing a home zip code paired with an employee's name would constitute "an unwarranted invasion of personal privacy under the provisions of  Public Officers Law §89(2)]", the court explained that this privacy exception includes eight categories that are per se unwarranted invasions of privacy and then noted that unwarranted invasions of privacy "shall not be limited to" those listed (see Public Officers Law § 89[2] [b]).

In the absence of proof establishing the applicability of one of the specifically-enumerated categories, the Appellate Division said courts "evaluate whether disclosure would constitute an unwarranted invasion of personal privacy 'by balancing the privacy interests at stake against the public interest in disclosure of the information'."

On one side of the equation is the public interest in disclosure of government records while the other side of the equation is the interests of state employees in not having their home zip codes, along with their names and job information, released to members of the public.

Citing Massaro v New York State Thruway Authority, 111 AD3d at 1003, the court said "An unwarranted invasion of personal privacy has been characterized as that which would be offensive and objectionable to a reasonable person of ordinary sensibilities" Here DCS "particularly and specifically justified its denial" when it stated that the correlation of names and home zip codes invaded employee privacy, and offered to release a summary or de-identified employee zip codes upon receipt of a new FOIL request. Plaintiff, however, declined to accept this offer tendered by DCS.

Observing the personal privacy exemption "would have little meaning if [individuals or] entities could circumvent [it] by gaining access to only the names [of public employees] and then linking them to a home address, the Appellate Division concluded that the policy concerns underlying the personal privacy exemption are no less implicated under that scenario," noting that it had earlier affirmed a denial of disclosure where the requested "records, when combined with other readily available information, ... could identify or lead to the identification of" information protected under a FOIL exemption," rejecting "(e)ven the partial disclosure of an address" because it could be used, with other information," to identify an individual.

As to special protections for state employee records, the Appellate Division concluded that Legislature's enactment of Public Officers Law §89(7) indicates its desire to protect public employees from harassment at home and here the release of home zip codes "would constitute an unwarranted invasion of personal privacy under these circumstances."

Finding that DCS had met its burden of proving that the requested zip codes are exempt from disclosure under FOIL, the Appellate Division ruled that Supreme Court erred in ordering the disclosure of such data and reversed so much the lower court's order that required DCS to disclose the zip code data requested by Plaintiff.

* §40 of the New York State Civil Service Law provides that the Classified Service "shall comprise all offices and positions not included in the unclassified service. The offices and positions in the classified service of the state and of its civil divisions shall be divided into four classes, to be designated as the exempt class, the non-competitive class, the labor class, and the competitive class."

** See 9 NYCRR 8.183, Protecting the Personal Privacy of Public Sector Workers.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2021/2021_01113.htm.