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Saturday, March 24, 2012

S6731 Limits The Length Of Time To Appeal FOIL Violations

One of the most annoying things about the City Law Department is their close relationship to the New York State Supreme Court. I think the Corporation Counsel is too close:

  • they pick and choose when to defend a teacher/principal/employee and when not to.
  • they never pay any fees for motions, or any other filing
  • they never have to appear at submissions because they can hand over their documents at any time....the submission date is for everyone else
  • they can stop the implementation of a judge's decision by filing a Notice of Appeal, then take nine months to finish the Appeal brief.
The DOE Records Access person, Joe Baranello, seems to have trouble honoring the FOI Laws of New York State, and allows requests to remain unfilled for years. Recent legislation in the New York State Senate has put a stop to the lengthy appeal process.

Now I just wish that our Senate and Assembly would put a stop to the NYC Law Department postponing implementation of judges' decisions when these decisions go against them.

Betsy Combier

Limits the time state agencies would have to appeal article 78 supreme court
judgments against them for violations of freedom of information laws.

Sponsor: BONACIC / Committee: INVESTIGATIONS AND GOVERNMENT OPERATIONS 
Law Section: Public Officers Law / Law: Amd S89, Pub Off L

S6731-2011 Actions

  • Mar 14, 2012: REFERRED TO INVESTIGATIONS AND GOVERNMENT OPERATIONS

S6731-2011 Memo

BILL NUMBER:S6731

TITLE OF BILL:
An act
to amend the public officers law, in relation to limiting 
the amount of time to appeal certain judgments regarding 
freedom of information violations

PURPOSE OR GENERAL IDEA OF BILL:
To expedite the appeals process when a trial court has 
found in favor of a FOIL request action, thereby insuring 
timely appellate review and conclusion to the issue.

SUMMARY OF SPECIFIC PROVISIONS:
Adds a new paragraph (a) to Subdivision 4 of Section 89 
of the public officers law, requiring an appeal to be tiled 
within 30 days after a court judgement on a FOIL lawsuit, 
and abandons the request to appeal when an agency fails 
to serve and tile a brief within two months after the date 
of the notice of appeal.

Section 2: Authorizes an immediate effective date.

JUSTIFICATION:
The bill creates an expedited process for determining 
appeals of FOIL decisions. Under the present law, a denial 
of request for records may be overturned by a court, but 
the agency may tile a notice of appeal and have up to 9 
months to perfect the appeal. This delay, in some circumstances, 
may create an unfairness or a restriction of rights to
an individual; the delaying of disclosure, through the 
normal process of appeal, may make moot the individuals 
FOIL request and functionally deny them the timely access 
to documents needed. In addition, a speedier resolution 
reduces court costs borne by all parties.

PRIOR LEGISLATIVE HISTORY:
2009-10: A.6484 (Latimer) Referred to Governmental Operations

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
Immediately.

S6731-2011 Text

 S T A T E   O F   N E W   Y O R K
 
                                          6731
 I N  SENATE
 March 14, 2012
 
 Introduced  by  Sen. BONACIC -- read twice and ordered 
printed, and when  printed to be committed to the Committee 
on Investigations and Government Operations 

AN ACT to amend the public officers law, in  relation 
to  limiting  the amount of time to appeal certain 
judgments regarding freedom of information violations 

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN 
SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

Section 1. Subdivision 4 of section 89 of the public officers 
law  is amended by adding a new paragraph (d) to read as follows:

 (D) APPEAL TO THE APPELLATE DIVISION OF THE SUPREME COURT 
MUST BE MADE IN  ACCORDANCE  WITH  LAW, AND MUST  BE FILED 
WITHIN THIRTY DAYS AFTER  SERVICE BY A PARTY UPON THE APPELLANT 
OF A COPY OF THE JUDGMENT OR ORDER APPEALED FROM AND WRITTEN 
NOTICE OF ITS ENTRY. AN APPEAL TAKEN FROM AN ORDER OF THE COURT 
REQUIRING DISCLOSURE OF ANY OR ALL RECORDS SOUGHT SHALL BE 
GIVEN PREFERENCE, SHALL BE BROUGHT ON FOR ARGUMENT ON SUCH
 TERMS  AND  CONDITIONS AS THE PRESIDING JUSTICE MAY DIRECT 
UPON APPLICATION OF ANY PARTY TO THE PROCEEDING, AND SHALL 
BE DEEMED ABANDONED  WHEN AN AGENCY FAILS TO SERVE AND FILE 
A RECORD AND BRIEF WITHIN TWO MONTHS AFTER THE DATE OF THE 
NOTICE OF APPEAL. 

S 2. This act shall take effect immediately.
 EXPLANATION--Matter in ITALICS (underscored) is new; matter 
in brackets  [ ] is old law to be omitted.
 LBD00716-01-1
From Betsy Combier: 
A story in today's NY POST reminds me of the rubberization process.
Once again, let me repeat that the focus of my advocacy is on the rights people have to face their accuser(s) and to have their side of the story be told to a neutral party for a fair and just resolution. Thus, even if a person is guilty of something doesnt mean, in my opinion, that they can/should/must be fired. Every case is unique and involves circumstances and situations that may mitigate punishment. I believe that every action of anyone involved in a case can and should be looked at. Here is where my approach differs from NYSUT and most Attorneys, who do not want to delve into the case given to them for any number of reasons.
Of course, judges, lawyers and politicians pretend to "know" the facts, but if you try to get the facts out by asking the people you have hired to help you, like attorneys and union reps., often you get attacked for asking, because they haven't looked at the documents you brought for them to read. 
The Constitutional due process protections that we all reply on have effectively been adjudicated out of existence by Mayoral control, biased 3020-a arbitrators, advocates who speak about ed reform who dont do anything but talk (more about this in later posts) and judicial immunity. 
The police Sargeant below has a taste of the medicine given to all those people I salute: people who say, "Hey, there's something wrong here" and "What are we going to do about it?" The answer is often, "Nothing", but we are going to silence you for asking."
This is how the rubber rooms often works, and remember that I see the "rubber room" as a process, not a place:
A Department of Education employee shows higher ups that he/she is not a "yes" person - that is, he/she does his/her job, reports suspected abuse of children by anyone, including school personnel, and asks questions about IEPs, payment for services, the CEP (See the story about Francesco Portelos here and here) etc. All the while, and unbeknownst to this hard-working employee, the "higher ups" (Principal, AP, Dean, teacher, PIP+ consultant, Superintendent, 'legal', SCI, OSI, OEO, DA, NYPD, Borough President,etc) have already been alerted by a telephone call or email that he/she needs to be 'taken care of'.


Tenured employees were, up until 2010, placed into warehouses called Temporary Reassignment Rooms (also called TRCs or "rubber rooms"). Everyone was paid while sitting there and told to be happy by the UFT, because they were getting paid to sit there... thus supposedly no harm was done. Employees displaced into these locations were also told by the UFT reps (not me) that they should not discuss any part of their case with anyone. Many were afraid to talk with me when I was hired in 2007 by Randi Weingarten to visit the rubber rooms and find out what each person's case was all about. Some reps tried to convince rubber roomers I was in on this by telling the employee "Betsy works for us, be careful, she isnt who she says she is", etc, and I found this out afterwards even up to today, with the names of the people from the UFT and NYSUT who are saying this. It doesn't matter. What matters is that people were threatened with harm by UFT Reps NYSUT and DOE for trying to assert their rights to due process and find out why they were charged, and how they could address the charges or allegations if known.


In order for anyone charged to be punished (Mayor Bloomberg hates to be proven wrong at any time), the Department of Education and the UFT/NYSUT created a fake "opportunity" by which charged people could get back to their careers or at least their lives: settlement, retirement, resignation, or pay money to go back to work, guilty or not. This was a lie, created to get someone permanently removed from the teaching profession. A person who signs a settlement agrees that he/she is guilty of the charge and waives his/her right to file any legal action against the DOE in the future.After signing the agreement, as soon as the person is placed back into a school setting, he or she is open for allegations to be filed against him/her once again, for any or no reason. The second time around the person always gets terminated.

My answer to the scam going on to get rid of good and bad teachers (but no one knows who is "good" and who is "bad"): expose everything anyone says to you, have an open and public hearing, and keep posting, emailing and talking about everyone in your case who has said or done anything improper. Cockroaches hate light.


Sgt Borelli, in the article below, evidently has been rubberized.


Sgt. Robert Borelli

Whistleblowing NYPD sergeant had a hand in crime spike in Queens precinct: sources

Last Updated:12:22 PM, March 24, 2012
Posted:1:23 AM, March 24, 2012
A whistleblowing NYPD sergeant had a hand in the monstrous spike in crime that plagued a Queens precinct last year when his scrutiny of fellow cops’ official reports prompted them to properly classify a wave of felony complaints, law-enforcement sources said yesterday.
For doing his job, Sgt. Robert Borrelli was banished to an abysmal night shift at Central Booking in the basement of the South Bronx criminal courthouse, the sources said.
“This guy is definitely a significant reason for the crime [spike]” in the 100th Precinct, one police source said, pointing out that “you could correlate when he started looking at the [complaints] to the increase in crime in this precinct.”
In December, The Post first reported that the Rockaways were getting rocked by a crime wave.
Burglaries jumped 144 percent, from 54 the previous year to 132. Felony assaults climbed 66 percent from 78 to 130 and robberies rose 31 percent from 63 to 83.
The 47-year-old cowboy cop, who’s eligible to retire and collect his full pension in just 18 months, threatened to go to Internal Affairs if anyone downgraded a single crime, a police source said.
“He made sure that everybody did it the way they were supposed to. He was making sure it was being done by the book,” the source said.
On one occasion, Borrelli got into a beef with the squad commander over a burglary report and contacted the complainant in his quest to make sure the crime was accurately reported, sources said.
“They’re downgrading shootings to reckless endangerment when they should be attempted assault,” Borrelli told The Post, adding that it was done “to keep the crime index low, as well as [downgrading] plenty of other felonies.”
He took his claims to Internal Affairs, but investigators insist they claims are baloney, sources said.
One source called him a “loose cannon” and a “malcontent” with a long disciplinary history.
Additional reporting by Michael Gartland