Counsel fees and litigation costs awarded as the custodian of records demanded pursuant to the Freedom of Information Law did not have a reasonable basis for denying access to the records

Individual substantially prevailing in challenging a denial to access to certain public records sought pursuant to the New York State Freedom of Information Law awarded counsel fees and litigation costs

Contrary to Supreme Court's finding, the Appellate Division held that the fact that the disclosure under certain demands that stemmed from a mutual accord between the parties does not change the analysis, as "the voluntariness of an agency's disclosure after the commencement of a CPLR Article 78 proceeding will not preclude a finding that a litigant has substantially prevailed."

The text of the Appellate Division's decision in this action is set out below.

On January 9, 2019, Joseph Aron — the principal attorney for petitioner — submitted a Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL]) request to respondent seeking records pertaining to real property tax assessments in the Town of Fallsburg, Sullivan County. Demand No. 1 sought "[a]ny communications between [respondent] . . . and Vacation Village homeowners or their representatives relating to tax assessments of homes in Vacation Village."^[FN1]Demand Nos. 2-5 pertained to property tax grievances filed by homeowners in Vacation Village, seeking, among other things, copies of all such filed grievances, the determinations thereof and communications between respondent's employees related thereto. Demand Nos. 6-8 sought "all filings in [CPLR] article 78 proceedings . . . regarding tax assessments of homes in Vacation Village," as well as "copies of all filings [and appeals] in [CPLR] article 78 proceedings . . . regarding tax assessments of homes in [respondent] . . . for the last three years." Demand No. 9 sought records "containing the description, address and sale price of all homes sold in Loch Sheldrake for the past five years."

The next day, a representative of respondent acknowledged the request and advised that it would be forwarded to the appropriate department for review. On January 30, 2019, respondent sent Aron a generic "[FOIL] Response Form" stating that his request was "defective or not specific enough" to be processed. Construing that communication as a denial, Aron — in a letter dated February 4, 2019 — administratively appealed. By letter dated February 25, 2019, respondent acknowledged receipt of the appeal and provided a more substantive response. As to demand No. 1, respondent explained that there were 234 parcels in Vacation Village and asked Aron to clarify whether he was requesting a search of all employee records for responsive documents or only a search of the records maintained by the Assessor's Office. With respect to demand Nos. 2-5, respondent informed Aron that the grievance documents he sought were scanned on a computer database maintained by respondent and could be accessed by making an appointment to use respondent's viewing program. Respondent granted Aron's request regarding demand Nos. 6-8 to the extent of providing "copies of the [CPLR a]rticle 78 proceedings that have been served on [respondent] regarding Vacation Village" in the past five years, "as well as all [CPLR a]rticle 78 proceedings that have been served on [respondent] in the last [three] years regarding single family homes" and any appeals of such proceedings. Demand No. 9 was denied on the basis that "[s]ale information is of public record in the County Clerk's office" and respondent [*2]"do[es] not break up sales by hamlet, nor do[es] [it] have a means to do so."

Following that determination, respondent provided documents responsive to demand Nos. 6-8 relative to single family homes. In March 2019, Aron sent an email to a representative of respondent requesting that, to the extent that the responsive records pertaining to demand Nos. 2-5 were in electronic format, they be copied onto a flash drive that he would provide.^[FN2] Respondent informed Aron that the records could not be uploaded onto a flash drive due to their voluminous nature, reiterating that he could schedule an appointment to access the records by using respondent's viewing program.^[FN3]

Petitioner thereafter commenced this CPLR article 78 proceeding against respondent seeking, among other things, a declaration that respondent acted unlawfully in withholding the outstanding records, an order directing that the outstanding records be disclosed, and an award of counsel fees and litigation costs under Public Officers Law § 89 (4) (c). By order dated January 7, 2020, Supreme Court denied the petition as to demand Nos. 1 and 9, granted the petition as to demand Nos. 6-8 to the extent of directing respondent to disclose any responsive documents pertaining to multifamily homes, and scheduled an evidentiary hearing as to whether documents pertaining to demand Nos. 2-5 "were maintained in a format and file size that could reasonably be transferred to and produced on a flash drive." The court held the issue of counsel fees in abeyance pending the outcome of the hearing. Shortly thereafter, respondent tendered an affidavit certifying that all of the homes in Vacation Village were single family and, therefore, no responsive documents pertaining to multifamily homes existed under demand Nos. 6-8.

Petitioner moved to reargue the January 2020 order and respondent moved to renew. Both parties also moved for an award of counsel fees. By order entered May 12, 2020, Supreme Court denied both motions, set the matter down for an evidentiary hearing and denied the respective requests for counsel fees. Respondent's attorney subsequently sent an email to petitioner and Supreme Court advising that respondent was agreeable to providing petitioner with the responsive documents pertinent to demand Nos. 2-5 in digital format and, thus, an evidentiary hearing was no longer necessary. Consequently, by consent order entered August 14, 2020, Supreme Court canceled the evidentiary hearing and directed respondent to furnish such responsive documents by September 14, 2020. These documents were produced in accordance with the consent order and totaled approximately 7,000 pages.

Petitioner again moved for an award of counsel fees pursuant to Public Officers Law § 89 (4) (c) (ii), arguing, among other things, that it had substantially prevailed in the proceeding because, as a result of the litigation, it had received responsive documents pertaining to demand Nos. 2-5 and "received a certification[*3]" under demand Nos. 6-8 that no multifamily homes existed. Petitioner further argued that respondent did not have a reasonable basis for denying access to the withheld records. Respondent opposed the motion.

By order entered November 5, 2020, Supreme Court denied petitioner's request for counsel fees. The court noted that it had affirmed the denial of records under demand Nos. 1 and 9 and, although petitioner "technically prevailed" on demand Nos. 6-8, its success "was not substantial" because the certification obtained "involved a subset of records . . . which was narrow in comparison to the overall scope of the FOIL request." As to demand Nos. 2-5, the court emphasized, among other things, that it never rendered a decision as to whether respondent's initial refusal to transfer the documents to a thumb drive was unreasonable. Rather, such documents had been disclosed in the format requested by petitioner due to a mutual agreement. Petitioner appeals from the November 2020 order.

As a threshold matter, respondent argues that the appeal must be dismissed because the November 2020 order does not constitute a final judgment (see CPLR 5701 [b] [1]; Matter of Alexander M. v Cleary, 188 AD3d 1471, 1473 [2020]; see also CPLR 5701 [a] [1]). We agree with respondent that the November 2020 paper — which is denominated a "decision and order" and neither grants nor dismisses the petition — is akin to a nonfinal interlocutory order and, therefore, no appeal lies as of right (see Matter of Greece Town Mall, L.P. v New York State, 140 AD3d 1380, 1382 n 1 [2016]; see also CPLR 5701 [a] [1]). However, in the interest of judicial economy, we treat the notice of appeal as a request for permission to appeal and grant the request (see CPLR 5701 [c]; Matter of Greece Town Mall, L.P. v New York State, 140 AD3d at 1382 n 1; Matter of Lally v Johnson City Cent. Sch. Dist., 105 AD3d 1129, 1132 n 2 [2013]).

Next, we reject respondent's contention that, by settling the proceeding as it related to demand Nos. 2-5 through a consent order that did not contain a provision preserving petitioner's claim for counsel fees, petitioner has waived such a claim or is equitably estopped from pursuing it. "A waiver is the intentional relinquishment of a known right with both knowledge of its existence and an intention to relinquish it. Such a waiver must be clear, unmistakable and without ambiguity" (Matter of Chenango Forks Cent. School Dist. v New York State Pub. Empl. Relations Bd., 95 AD3d 1479, 1484 [2012] [internal quotation marks, ellipsis and citations omitted], affd 21 NY3d 255 [2013]). Equitable estoppel, by contrast, is a doctrine imposed as a matter of fairness that "preclude[s] a person from asserting a right after having led another to form the reasonable belief that the right would not be asserted, and loss or prejudice to the other would result if the right were asserted" (Matter of Shondel J. v Mark D., 7 NY3d 320, 326 [2006]). As the August 2020 consent [*4]order was silent on the issue of counsel fees, petitioner's acceptance of its terms can hardly constitute a "clear" and "unmistakable" waiver of such a claim (Matter of Chenango Forks Cent. School Dist. v New York State Pub. Empl. Relations Bd., 95 AD3d at 1484). Moreover, there is no evidence that petitioner took affirmative acts that would support a reasonable belief that it intended to abandon its claim for counsel fees, rendering the doctrine of equitable estoppel inapplicable.

We agree with petitioner that Supreme Court erred in denying its request for counsel fees. As relevant here, a court in a FOIL proceeding "shall assess, against such agency involved, reasonable [counsel] fees and other litigation costs

. . . in any case . . . in which such person has substantially prevailed and the court finds that the agency had no reasonable basis for denying access" to the records sought ^[FN4](Public Officers Law § 89 [4] [c] [ii]; see Matter of Madeiros v New York State Educ. Dept., 30 NY3d 67, 78-79 [2017]; Matter of Gannett Satellite Info. Network, LLC v New York State Thruway Auth., 181 AD3d 1072, 1074 [2020]). "'A petitioner substantially prevails under Public Officers Law § 89 (4) (c) when it receives all the information that it requested and to which it was entitled in response to the underlying FOIL litigation'" (Matter of Gannett Satellite Info. Network, LLC v New York State Thruway Auth., 181 AD3d at 1074, quoting Matter of 101CO, LLC v New York State Dept. of Envtl. Conservation, 169 AD3d 1307, 1311 [2019], lv dismissed 34 NY3d 1010 [2019]).

Petitioner substantially prevailed in the litigation. Through use of the judicial process, petitioner received documents responsive to demand Nos. 2-5 in the medium it desired and obtained a certification under demand Nos. 6-8 pertaining to multifamily homes (see Matter of Legal Aid Socy. v New York State Dept. of Corr. & Community Supervision, 105 AD3d 1120, 1122 [2013]). Contrary to Supreme Court's finding, the fact that the disclosure under demand Nos. 2-5 stemmed from a mutual accord between the parties does not change the analysis, as "the voluntariness of an agency's disclosure after the commencement of a CPLR article 78 proceeding will not preclude a finding that a litigant has substantially prevailed" (Matter of Cobado v Benziger, 163 AD3d 1103, 1106 [2018]; see Matter of Madeiros v New York State Educ. Dept., 30 NY3d at 79). Moreover, respondent did not have a reasonable basis for the precommencement denial of the records responsive to demand Nos. 2-5, as evidenced by its subsequent production of said documents in electronic form. As petitioner substantially prevailed and respondent did not have a reasonable basis for denying access to the records, Supreme Court erred in denying petitioner's request for counsel fees and litigation costs (see Public Officers Law § 89 [4] [c] [ii]; Matter of New York Civ. Liberties Union v City of Saratoga Springs, 87 AD3d 336, 339-340 [2011]; Matter of [*5]New York State Defenders Assn. v New York State Police, 87 AD3d 193, 197 [2011]).

Egan Jr., J.P., Clark, Pritzker and Colangelo, JJ., concur.

ORDERED that the order is reversed, on the law, with costs, motion granted and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court's decision.

Footnotes

Footnote 1:Unless otherwise specified, the demands sought records spanning back five years.

Footnote 2: Aron indicated that he was in New York City and would prefer to avoid traveling to Sullivan County.

Footnote 3: These email communications are not included in the record but are referenced in the order on appeal.

Footnote 4: Where the petitioner substantially prevailed and the agency failed to respond to the request or appeal within the statutory time frame, the decision to award counsel fees lies within the trial court's discretion (see Public Officers Law §89 [4] [c] [i]). Petitioner does not argue that respondent failed to comply with the statutory time frames listed in the Public Officers Law.

Audits and reports recently issued by the New York State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued:

Click on the text highlighted in color to access the complete audit report..

STATE DEPARTMENTS AND AGENCIES

Division of Criminal Justice Services: Monitoring and Administration of Public Protection Grant Programs (Follow-Up) (2021-F-21)

An audit released in April 2020 found that the Division had adequately administered and monitored the Gun Involved Violence Elimination (GIVE) and SNUG (“guns” spelled backward) grant program contracts reviewed to ensure that the related grant expenses were supported and allowable under the contracts. Auditors identified one exception related to documentation of the authorization or receipt of confidential funds. Since the initial audit, the division reduced and ultimately eliminated confidential funds from its GIVE contract awards. As such, the recommendation from the initial audit is not applicable.

 

New York City Department of Information Technology and Telecommunications (DoITT): Controls Over and Revenues From .nyc Generic Top-Level Domains (2020-N-3)

A top-level domain (TLD) is the last part of an Internet address, such as .com, .net, or .org. In March 2012, DoITT entered into a franchise agreement with a vendor to apply for the “.nyc” generic TLD (gTLD) and to operate, manage, maintain, and market the .nyc gTLD program. Auditors found DoITT collected only one of the four agreed-upon revenue sources in the city’s contract with the vendor during the audit scope and amended the contract several times with no supporting documentation explaining why. Auditors also found DoITT’s Franchise Administration Team, tasked with managing the contract and collecting the revenue from the vendor, did not monitor or require the registry operator’s compliance with the contract. 

 

New York State Health Insurance Program (NYSHIP): CVS Health – Accuracy of Drug Rebate Revenue Remitted to the Department of Civil Service (Follow-Up) (2021-F-18)

An audit issued in August 2020 found CVS Health did not collect and remit all rebate revenue that it invoiced to drug manufacturers for rebate-eligible prescription drug claims paid on behalf of the Empire Plan, the primary health benefits plan for NYSHIP; therefore, Civil Service did not receive $453,029 in rebate revenue for the period of Jan. 1, 2014 through Dec. 31, 2018. In a follow-up, auditors determined CVS Health has made progress in addressing the problems identified in the initial audit.

 

State Education Department (SED): E&D Children Center, Inc. – Compliance With the Reimbursable Cost Manual (2020-S-44)

E&D is a New York City-based organization approved by SED to provide preschool Special Education Itinerant Teacher services to children with disabilities who are between the ages of 3 and 5 years. The New York City Department of Education refers students to E&D and pays for its services using rates established by SED. For the three fiscal years ended June 30, 2015, auditors identified $711,676 in reported costs that did not comply with requirements for reimbursement.

 

Multiple Agencies: Improving Government Efficiency and Effectiveness (2021-D-2)

The report summarizes select audits that highlight SGA’s efforts to promote fiscal responsibility and brings renewed attention to ideas that could result in cost savings or revenue enhancements for the State and New York City. The audits, all released within the past five fiscal years, demonstrate significant financial impact. The issues and risks they identified should inform agencies with similar programs on improving efficiency in their own operations and strengthening internal controls to prevent excess costs.

 

Inappropriate Medicaid Payments

State Comptroller Thomas P. DiNapoli released three reports that found more than $100 million in improper payments made by the Department of Health (DOH) for the Medicare buy-in program, maternity care, and drug and therapy claims. Nearly $400,000 in premiums may have been paid for deceased individuals.

“The Medicaid program provides critical health care services to millions of New Yorkers but the program is dogged by oversight problems and payment errors,” DiNapoli said. “Over the years, we’ve uncovered billions of dollars of waste and abuse in the system. DOH should act on our recommendations to ensure significant unnecessary expenses and preventable mistakes don’t end up costing taxpayers.”

The New York State Medicaid program is administered by DOH and is a federal, state, and local government funded program that provides a wide range of medical services to economically disadvantaged populations, including low-income children and their families, seniors, and people with disabilities. As of March 2021, New York’s Medicaid program had approximately 7.3 million recipients and claim costs totaled more than $68 billion.

 

Improper Medicare Payments

The first audit released today looked at Medicaid recipients who are also enrolled in Medicare. Under the Medicare buy-in program, Medicaid pays Medicare premiums for individuals who meet buy-in program eligibility requirements. Auditors found Medicaid made $31.7 million in improper Medicare premium payments from Jan. 1, 2015 through Dec. 31, 2019 for 42,586 individuals. Medicaid also paid $372,716 in Medicare premiums for 282 individuals identified as deceased. Auditors found Medicaid paid $23.6 million in premiums for 3,439 individuals who were automatically added to the buy-in program with coverage beginning more than two years retroactively, despite limitations on this.

 

Questionable Managed Care Payments

The second audit released examined Medicaid recipients who receive their services through managed care. DOH pays managed care organizations (MCOs) a monthly premium for each enrolled recipient and, in turn, the MCOs pay for services their members require. MCOs can also receive a one-time Supplemental Maternity Capitation Payment (SMCP) for prenatal and postpartum physician care and delivery costs. However, MCOs are not eligible to receive SMCPs for maternity cases that end in termination or a miscarriage.

Auditors identified approximately $55 million in improper and questionable SMCPs to MCOs from Aug. 1, 2015 to July 31, 2020. They found $29.1 million was paid without the required supporting data; $23.4 million was paid where the data or other evidence indicated the maternity case ended in termination or miscarriage; and $2.4 million was paid when the SMCP date of service preceded the birth by one to six months.

 

Overpayments for Prescription Drugs

A report released in October 2019 examined payments made for prescription drugs and therapy services. It found Medicaid paid $20.1 million for services that should have been paid by Medicare. The payments included $18.6 million for physical, occupational, and speech therapy services, and $1.5 million for prescription drugs. A follow-up report released today found DOH made some progress in addressing the prior problems identified; however, since the initial audit, auditors identified another $17.7 million in payments that should have been paid by Medicare.

DOH generally agreed with many of the recommendations that DiNapoli’s auditors provided in each audit. Read DOH’s responses in the reports.

 

Audits

Department of Health Medicaid Program: Improper Payments of Medicare Buy-In Premiums for Ineligible Recipients

Department of Health Medicaid Program: Improper Supplemental Maternity Capitation Payments to Managed Care Organizations

Department of Health Medicaid Program: Overpayments for Therapy Services and Prescription Drugs Covered by Medicare (Follow-Up)

 

New York Needs to Improve Cybersecurity Support to Local Governments and Public Authorities  

 New York State Comptroller Thomas P. DiNapoli released an audit that found the Division of Homeland Security and Emergency Services cannot assure the critical cybersecurity support they are providing to state agencies, local governments, and public authorities through their Cyber Incident Response Team is achieving the desired outcomes or is targeting the appropriate customers and their needs.

NYS Common Retirement Fund Reports Second Quarter Results

The New York State Common Retirement Fund’s estimated return in the second quarter of the State Fiscal Year 2021-22 was 1.15% for the three-month period ending Sept. 30, 2021, according to New York State Comptroller Thomas P. DiNapoli. It ended the quarter with an estimated value of $267.8 billion.

DiNapoli Urges NYC to Shore Up Rainy-Day Fund

In a report released this week, New York State Comptroller Thomas P. DiNapoli urged New York City officials to better prepare for financial downturns by evaluating the city’s rainy-day reserve fund, establishing targets for how much should go into the fund each year and setting the conditions for withdrawals. His report found the city’s reserve policies are not as robust as other large U.S. cities, and with recent changes in state and local law enabling the use of these funds, called on the city to define how these resources are accumulated and used.

NYS Comptroller DiNapoli and the Fire and Police Pension Association of Colorado Statements on Proposed Settlement of Boeing Lawsuit

New York State Comptroller Thomas P. DiNapoli and the Fire and Police Pension Association of Colorado (FPPA) issued statements regarding the proposed settlement of their derivative lawsuit against the directors of The Boeing Company. State Comptroller DiNapoli, as trustee of the New York State Common Retirement Fund, and the FPPA were appointed co-lead plaintiffs in the lawsuit.

State Comptroller DiNapoli and Orange County District Attorney Hoovler Announce Guilty Plea in Bethel Tax Collector Pension Fraud Case

State Comptroller Thomas P. DiNapoli and Orange County District Attorney David M. Hoovler announced that former Town of Bethel Tax Collector Debra Gabriel, of Bethel, pleaded guilty before Judge Peter Feinberg in the Town of Rockland Justice Court to Offering a False Instrument for Filing in the Second Degree, in connection with a scheme to defraud the New York State and Local Retirement System. Gabriel, 62, had resigned her public office and retired in August 2020.

 

 

Employee contributions required of individuals participating in the State University of New York's Optional Retirement Program

In Coller v State Univ. of NY., 80 A.D.2d 166, the Appellate Division considered a claim that certain participants in the State University of New York's Optional Retirement Program* [ORP] were exempt from the provisions of Chapter 890 of the Laws of 1976, which Chapter, in pertinent part, created "a new retirement program for public employees hired on or after July 1, 1976."

The new law made the retirement systems, including optional retirement programs, contributory with respect to employees appointed after July 1, 1976.

Certain State University of New York ORP participants appointed prior to July 1, 1976, [Plaintiffs] had employee contributions for their respective ORP deducted from their compensation effective January 1, 1977. 

Plaintiffs then initiated a CPLR Article 78 action demanding that State be ordered to resume making contributions to their ORP on their behalf as it had done prior to January 1, 1977. Supreme Court rejected Plaintiffs' petition, which decision was affirmed by the Appellate Division. 

In particular, the Appellate Division noted that Petitioners, at the time of their election to participate in a then noncontributory optional retirement plan, consented in writing to their payment of appropriate employee contributions to their ORP provided by the Teachers Insurance and Annuity Association and, or, the College Retirement Equity Fund [TIAA; CREF], if required to do so.**

The text of the Appellate Division's decision is set out below:

Petitioners are employees of the State University of New York (SUNY) and are employed at various colleges which are constituent parts of SUNY. Pursuant to section 393 of the Education Law, eligible employees of SUNY are permitted to elect participation in an optional pension plan selected by SUNY in lieu of the New York State Teachers' Retirement System or the New York State Employees' Retirement System. Here, the optional pension plan selected by SUNY and elected by petitioners was the Teachers Insurance and Annuity Association-College Retirement Equities Fund (TIAA-CREF). At the time of its selection by SUNY, membership in TIAA-CREF for electing SUNY employees was noncontributory, with the State underwriting the total cost of membership (Education Law, § 392, subds 1, 2). Article 14 effective January 1, 1977 and article 14-A effective July 1, 1977, specifically sections 500 and 517, were added to the Retirement and Social Security Law (L 1976, ch 890, § 1), thereby creating "a new retirement program for public employees hired on or after July 1, 1976" (Governor's Memorandum, NY Legis Ann, 1976, p 412). The new law made the retirement system, including the optional retirement programs such as TIAA-CREF, contributory with respect to employees appointed after July 1, 1976.

Petitioners, members of TIAA-CREF, by a CPLR article 78 proceeding, demanded (1) that respondents be ordered to resume making contributions to the TIAA-CREF fund as they had done prior to January 1, 1977, (2) that respondents reimburse petitioners for all moneys deducted from their salaries since January 1, 1977, and (3) that petitioners be permitted to proceed with the litigation as a class action. Special Term denied the request for class action relief and dismissed the petition. This appeal ensued.

Turning first to the request by petitioners to proceed with this matter as a class action (CPLR 901), we note that when governmental operations are involved, and when subsequent petitioners will be adequately protected under the principles of stare decisis, class actions are inappropriate (Matter of Jones v Berman, 37 N.Y.2d 42). This is especially true in CPLR article 78 proceedings (Matter of Leone v Blum, 73 A.D.2d 252, 274, mot for lv to app granted 50 N.Y.2d 1042). Accordingly, we affirm that part of the judgment which denied petitioners' motion to prosecute this matter as a class action.

The initial argument advanced by petitioners in opposition to respondents' application of sections 500 and 517 of the Retirement and Social Security Law to themselves and others similarly situated so as to change a noncontributory system to a contributory one, is that such application violates section 7 of article V of the New York State Constitution, which states that membership in a State retirement system is a contractual relationship, "the benefits of which shall not be diminished or impaired." This contention must be rejected. There is nothing in the law or in its application requiring members to make contributions to TIAA-CREF that affects benefits to members in any manner. Next, the contractual relationship which petitioners enjoyed with the State by which the latter paid their contributions to TIAA-CREF was conditioned upon the New York State Teachers' Retirement System continuing its noncontributory status. Subdivision 2 of section 392 of the Education Law reserved to the State the right to end payments made by the State in lieu of employee contributions to the elected optional retirement plan. Therefore, enactment of sections 500 and 517 of the Retirement and Social Security Law triggered that condition and represented an overt act by the State to exercise a reserved power by making the Teachers' Retirement System contributory, thereby terminating the contractual relationship obligating the State to underwrite teacher membership in any optional retirement plan.

Similarly, since any property interest petitioners had in their optional system prior to January 1, 1977 was conditional, such interest was irretrievably lost by the enactment of sections 500 and 517 of the Retirement and Social Security Law in 1976. Furthermore, petitioners, at the time of their election to participate in a noncontributory optional retirement plan, consented in writing to appropriate employee contributions to the TIAA-CREF fund if required to do so.^**

Finally, petitioners' remaining contentions, including the point addressed to the constitutionality of sections 500 and 517 of the Retirement and Social Security Law with respect to their effective date causing unequal protection of teachers who joined TIAA-CREF before or after July 1, 1976, are untenable and are rejected. Petitioners have not met their "burden of establishing unconstitutionality beyond a reasonable doubt" (O'Conner v Levitt, 51 A.D.2d 1090).

The judgment should be affirmed, with costs.

Judgment affirmed, with costs.

* §396 of the Education Law, however provided that the "Employer not liable for payment of benefits. Neither the state, nor state university, nor any electing employer or its local sponsor shall be a party to any contract purchased in whole or in part with contributions made under the optional retirement program established and administered pursuant to this article. No retirement, death, or other benefits shall be payable by the state, or by state university, or by any electing employer or its local sponsor under such optional retirement program. Such benefits shall be paid to electing employees or their beneficiaries by the designated insurer or insurers in accordance with the terms of their contracts." [See, also, Royv Teachers Ins. & Annuity Assn., 878 F.2d 47 [2d Cir 1989] and Matter of Bindler v Goldin. 52 N.Y.2d 1.]

** The form signed by Petitioners stated: "To the Comptroller of the State of New York: You are hereby informed that I have elected the Optional Retirement Program [TIAA-CREF] * * * I do consent and agree to appropriate deductions, when required * * * and payment of salary or compensation less such deductions [which] * * * shall be a full and complete discharge and acquiesce of all my claims * * * for * * * services rendered".

Manager who referred to mask as "KKK hood" lawfully terminated for "cause"

On November 16, 2021, Employment Law News from WK WorkDay posted the following item by Ronald Miller, J.D.

A manager for an automobile repair business, who referred to respiratory masks as a “KKK hood,” and asked a Black employee if he were offended by the name and whether he wanted to try it on, was lawfully terminated under the terms of an employment agreement, a Florida District Court of Appeal ruled. In so ruling, the appeals court reversed a trial court’s award of damages to the employee for improper termination. Contrary to the trial court, the appeals court determined that the employee’s intent was irrelevant since he was also discharged for his conduct. Accordingly, the employer properly exercised its right to terminate the employee under its harassment policy (Master Collision Repair, Inc. dba Gerber Collision v. Waller, November 3, 2021, Roberts, C.).

“KKK hood” reference. The employer is in the automotive collision repair business. It hired the employee as a market manager responsible for the management of several locations. On March 7, 2018, he was in one of the employer’s stores to conduct fit testing for respiratory masks certain employees had to wear when performing tasks like sanding and painting. While there, the employee repeatedly referred to the respiratory mask as a “KKK hood.” He then asked a Black employee, who worked in the front office and was not part of the fit test group, if he would be offended if the mask was referred to as a “KKK hood” and if he wanted to try it on.

Senior management and human resources were made aware of complaints about the employee’s behavior. HR immediately began an investigation and the store’s general manager confirmed that the employee had asked other employees to put on the “KKK hood.” The employee himself admitted referring to the mask as a “KKK hood” and admitted that he asked the Black employee to try it on, but claimed he was joking. A few days later, the Black employee tendered a resignation letter detailing the employee’s conduct and the distress it had caused him.

After determining that the complaints against the employee were substantiated, the employer notified him that he was terminated for cause under his employment agreement.

Breach of contract claim. The employee sued the employer for breach of contract, arguing he was improperly terminated because he had not received written notice and a 30-day cure period under the terms of the employment agreement. Following a bench trial, the trial court entered judgment in favor of the employee and awarded him severance pay and health benefits for a six-month period. This appeal followed.

The appeals court concluded that the trial court erred in finding the employer improperly terminated the employee without first providing him notice and an opportunity to cure. The employment agreement plainly defined “cause” to mean willful failure and/or gross negligence in the performance of duties or the material breach of the terms and conditions of the agreement. Clearly, the employment agreement provided two separate avenues for the employer to terminate an employee for “cause” based upon a violation of the terms and conditions of the employment agreement. The second provision gave the employer leeway to terminate the employee immediately with written notice of the violation of the terms and conditions of the employment agreement without providing an opportunity to cure.

Under the agreement, the employee was responsible for performing his duties in accordance with employer policies, including the harassment policy contained in the employee handbook. Thus, the trial court erred in concluding that the employer failed to properly terminate the employee.

Employee intent. Similarly, the appeals court concluded that the trial court erred in finding that the employer did not conduct a good faith investigation or assess the ability to cure before terminating the employee. The trial court found the employer failed to investigate the employee’s intent, and without intent, his use of the term “KKK hood” might not be racial harassment. This was error. Rather, the record was clear that the employee was not terminated for words alone, but also for his conduct—he invited a Black employee to try on the “KKK” hood. At any rate, the employee’s intent was irrelevant to the employer’s determination that his conduct constituted harassment as defined under the employer’s harassment policy.

Accordingly, the judgment of the trial court was reversed.