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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.

Law Section: Public Officers Law / Law: Amd S89, Pub Off L

S6731-2011 Actions


S6731-2011 Memo


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

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.

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.

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.

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



S6731-2011 Text

 S T A T E   O F   N E W   Y O R K
 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 


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


S 2. This act shall take effect immediately.
 EXPLANATION--Matter in ITALICS (underscored) is new; matter 
in brackets  [ ] is old law to be omitted.

Section 201-d of New York State Labor Law reads as if an employee cannot be terminated for engaging in recreational activities as follows (2(c)): "an individual's legal recreational activities outside work hours, off of the employer's premises and without use of the employer's equipment or other property;" Kauff McGuire & Margolis LLP also have a description of this Law on their website (1992) My reading of this Law says that Randi Lowitt, the Arbitrator who terminated Christine Rubino for Rubino's comments on her 'private' Facebook page while she was at home, may have not abided by this law. I will be sure to post her new decision in the Rubino case after she issues it (Barbara Jaffe,New York State Supreme Court judge who vacated Lowitt's decision of termination). § 201-d. Discrimination against the engagement in certain activities. 1. Definitions. As used in this section: a. "Political activities" shall mean (i) running for public office, (ii) campaigning for a candidate for public office, or (iii) participating in fund-raising activities for the benefit of a candidate, political party or political advocacy group; b. "Recreational activities" shall mean any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material; c. "Work hours" shall mean, for purposes of this section, all time, including paid and unpaid breaks and meal periods, that the employee is suffered, permitted or expected to be engaged in work, and all time the employee is actually engaged in work. This definition shall not be referred to in determining hours worked for which an employee is entitled to compensation under any law including article nineteen of this chapter. 2. Unless otherwise provided by law, it shall be unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of: a. an individual's political activities outside of working hours, off of the employer's premises and without use of the employer's equipment or other property, if such activities are legal, provided, however, that this paragraph shall not apply to persons whose employment is defined in paragraph six of subdivision (a) of section seventy-nine-h of the civil rights law, and provided further that this paragraph shall not apply to persons who would otherwise be prohibited from engaging in political activity pursuant to chapter 15 of title 5 and subchapter III of chapter 73 of title 5 of the USCA; b. an individual's legal use of consumable products prior to the beginning or after the conclusion of the employee's work hours, and off of the employer's premises and without use of the employer's equipment or other property; c. an individual's legal recreational activities outside work hours, off of the employer's premises and without use of the employer's equipment or other property; or d. an individual's membership in a union or any exercise of rights granted under Title 29, USCA, Chapter 7 or under article fourteen of the civil service law. 3. The provisions of subdivision two of this section shall not be deemed to protect activity which: a. creates a material conflict of interest related to the employer's trade secrets, proprietary information or other proprietary or business interest; b. with respect to employees of a state agency as defined in sections seventy-three and seventy-four of the public officers law respectively, is in knowing violation of subdivision two, three, four, five, seven, eight or twelve of section seventy-three or of section seventy-four of the public officers law, or of any executive order, policy, directive, or other rule which has been issued by the attorney general regulating outside employment or activities that could conflict with employees' performance of their official duties; c. with respect to employees of any employer as defined in section twenty-seven-a of this chapter, is in knowing violation of a provision of a collective bargaining agreement concerning ethics, conflicts of interest, potential conflicts of interest, or the proper discharge of official duties; d. with respect to employees of any employer as defined in section twenty-seven-a of this chapter who are not subject to section seventy-three or seventy-four of the public officers law, is in knowing violation of article eighteen of the general municipal law or any local law, administrative code provision, charter provision or rule or directive of the mayor or any agency head of a city having a population of one million or more, where such law, code provision, charter provision, rule or directive concerns ethics, conflicts of interest, potential conflicts of interest, or the proper discharge of official duties and otherwise covers such employees; and e. with respect to employees other than those of any employer as defined in section twenty-seven-a of this chapter, violates a collective bargaining agreement or a certified or licensed professional's contractual obligation to devote his or her entire compensated working hours to a single employer, provided however that the provisions of this paragraph shall apply only to professionals whose compensation is at least fifty thousand dollars for the year nineteen hundred ninety-two and in subsequent years is an equivalent amount adjusted by the same percentage as the annual increase or decrease in the consumer price index. 4. Notwithstanding the provisions of subdivision three of this section, an employer shall not be in violation of this section where the employer takes action based on the belief either that: (i) the employer's actions were required by statute, regulation, ordinance or other governmental mandate, (ii) the employer's actions were permissible pursuant to an established substance abuse or alcohol program or workplace policy, professional contract or collective bargaining agreement, or (iii) the individual's actions were deemed by an employer or previous employer to be illegal or to constitute habitually poor performance, incompetency or misconduct. 5. Nothing in this section shall apply to persons who, on an individual basis, have a professional service contract with an employer and the unique nature of the services provided is such that the employer shall be permitted, as part of such professional service contract, to limit the off-duty activities which may be engaged in by such individual. 6. Nothing in this section shall prohibit an organization or employer from offering, imposing or having in effect a health, disability or life insurance policy that makes distinctions between employees for the type of coverage or the price of coverage based upon the employees' recreational activities or use of consumable products, provided that differential premium rates charged employees reflect a differential cost to the employer and that employers provide employees with a statement delineating the differential rates used by the carriers providing insurance for the employer, and provided further that such distinctions in type or price of coverage shall not be utilized to expand, limit or curtail the rights or liabilities of any party with regard to a civil cause of action. 7. a. Where a violation of this section is alleged to have occurred, the attorney general may apply in the name of the people of the state of New York for an order enjoining or restraining the commission or continuance of the alleged unlawful acts. In any such proceeding, the court may impose a civil penalty in the amount of three hundred dollars for the first violation and five hundred dollars for each subsequent violation. b. In addition to any other penalties or actions otherwise applicable pursuant to this chapter, where a violation of this section is alleged to have occurred, an aggrieved individual may commence an action for equitable relief and damages. Section: Previous Article 7 200 200-A 201 201-A 201-B 201-C 201-D 201-E 201-F 202 202-A 202-B 202-C 202-D Next Last modified: March 30, 2010 I also ask the reader to look at this on the website of Kauff McGuire & Margolis LLP: New Law Protects New York Employees From Discrimination Based on Legal Off-Duty Conduct October 1, 1992 Under a new statute, New York employers may not take adverse employment actions against employees or applicants for employment on the basis of their legal, off-duty conduct. The new law, section 201-d of the Labor Law, which takes effect on January 1, 1993, grew out of efforts by the tobacco lobby to prevent employers from discriminating against employees who smoke. The final version of the law, however, goes beyond merely protecting smokers. The statute broadly defines a variety of legal activities that, if engaged in on an employee's own time and without the use of company property or equipment, may not form the basis for adverse employment decisions. The law creates four areas of "protected" employee activities: (1) political activities, such as campaigning or fund-raising; (2) legal recreational activities, broadly defined to include virtually all non-compensated leisure time activity; (3) the legal use of consumable products, off company property and outside of working time; and (4) membership in a union or the exercise of rights related to union activity. It is unlawful for an employer to "refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against" an employee because of the employee's protected activities. An aggrieved employee may file suit for equitable relief and damages, or the Attorney General may sue for injunctive relief and for a civil fine. The statute does not provide for recovery of attorney's fees by a prevailing plaintiff. As with many broadly worded anti-discrimination statutes, this new law is subject to several exceptions. Employers should be wary, however, when seeking to take advantage of the exceptions to the law because the courts have not yet had the opportunity to interpret the sometimes ambiguous terms. The major exceptions to the law's scope are: (i) professional journalists, and civil servants who are prohibited by law from engaging in political activity, are excluded from the protection for political activity; (ii) off-duty conduct is not protected where engaging in the activity "creates a material conflict of interest related to the employer's trade secrets, proprietary information or other proprietary or business interest" or, as to any public employee, would violate local ethics or conflict of interest regulations; (iii) an employer does not violate the statute if actions are taken in accordance with obligations imposed under a collective bargaining agreement or a personal services contract with a professional employee; and (iv) an employer does not violate the statute if actions are taken against an employee "based on the belief" that the action is "required by statute, regulation, ordinance, or other governmental mandate" or is warranted based on behavior "deemed by an employer to constitute habitually poor performance, incompetency or misconduct." Of particular concern to employers is the application of the new law to employee anti-smoking rules, drug and alcohol abuse programs, anti-dating and anti-moonlighting rules, and employee benefit plans. First, despite the origins of the statute as a protection for employees who smoke, it is critical to note that the statute only protects activity that occurs off company property and outside of working time. Therefore, a company policy prohibiting smoking either during working hours or on the company's premises is permitted under the new statute. Similarly, compliance with local ordinances concerning smoking in public places may be observed without running afoul of the new law. The statute also specifically authorizes actions taken by employers under an established substance abuse program or workplace policy, including such provisions in a collective bargaining agreement. Thus, a workplace rule prohibiting the consumption of alcoholic beverages before reporting to work may be exempt from the new law's protection. Of course, any employee's conduct while on working time (such as being under the influence of alcohol) is clearly outside the protection of this new law. Of greater concern are employer-sponsored drug testing programs. Although the use of illegal drugs is not protected by the new law, the use of legal drugs (such as prescription medication) is protected. Consequently, any drug testing program that does not effectively differentiate between an employee's legal and illegal drug use may be in violation of the law. The new law has no application to an anti-moonlighting rule, because only non-compensated leisure time activities are protected. An employer's policy prohibiting dating between co-workers, however, may be prohibited by the statute, depending on whether the courts interpret dating to be a "recreational" activity (although, even then, an employer could argue that a particular dating relationship creates such a serious conflict of interest that it would fall within one of the exceptions to the law's prohibitions discussed above). Finally, with respect to employee benefit plans, the law specifically permits an employer to maintain a health or benefit plan "that makes distinctions between employees for the type of coverage or the price of coverage based upon the employees' recreational activities or the use of consumable products." Thus, medical insurance may be charged to a smoker at a higher rate than to a non-smoker, without violating the new law. For most employers, the impact of this new law on the day-to-day operation of the company will be limited. Unless an employer has an established policy prohibiting dating between co-workers or of not hiring smokers (whether or not they smoke on the job), democrats, or employees who have high-risk hobbies, the new law may be of little practical consequence. Nevertheless, the new law represents a significant limitation on the traditional New York rule of employment-at-will, and employers should be sensitive to the possible ramifications of the new law for employment actions based on employee conduct that occurs off the job.

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