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Sunday, July 8, 2012

Appellate Court on Civil Service Law § 75-b in a 2010 Decision Kowalski v New york State Dept. of Correctional Services

Matter of Kowaleski (New York State Dept. of Correctional Servs.)
2010 NY Slip Op 09379 [16 NY3d 85]
December 21, 2010
Ciparick, J.
Court of Appeals
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, February 23, 2011

In the Matter of the Arbitration between Barbara Kowaleski, Appellant, and New York State Department of Correctional Services, Respondent.
Argued November 16, 2010; decided December 21, 2010
Ciparick, J.
Petitioner Barbara Kowaleski began her employment with the State Department of Correctional Services (DOCS) as a correction officer in 1981, and was assigned to the Hale Creek Correctional Facility (Hale Creek) in 1995. In October 2004, she was served with a notice of discipline (Notice) charging her with violating provisions of the employees' manual on three [*2]separate occasions in September and October 2004:[FN1] (1) in September {**16 NY3d at 89}2004, she allegedly "made inappropriate comments of a personal nature about another staff member in the presence of staff and inmates"; (2) in October 2004, she allegedly argued with a fellow employee; and (3) also in October 2004, she allegedly was "disrespectful and insubordinate" when she ignored a superior's order to stop interrupting another employee. The Notice called for her termination and the loss of any accrued leave. Kowaleski filed a grievance and, pursuant to a collective bargaining agreement (CBA), a hearing was held before an arbitrator.
At the start of the hearing, Kowaleski argued that the disciplinary action was only being brought to retaliate against her for reporting a fellow officer's misconduct in 2002, and that she was entitled to raise this as an affirmative defense pursuant to Civil Service Law § 75-b, which prohibits public employers from retaliating against employees for reporting their coworkers' improper conduct.[FN2] The arbitrator determined that because the CBA limited his authority "to determinations of guilt or innocence and the appropriateness of proposed penalties," he lacked authority to consider Kowaleski's retaliation defense. He noted, however, that he would consider evidence of retaliation when determining witness credibility and "in the larger context of guilt or innocence."
In January 2007, the arbitrator found Kowaleski guilty of two of the three charges and determined that termination was appropriate. He found that Kowaleski had, in the presence of inmates, asked if a fellow officer's son had been shot, potentially endangering the officer and [*3]his family, and that she had insubordinately ignored a superior's instructions. The arbitrator noted that, under the CBA, an employee can only be disciplined for "just cause," which requires, among other things, that the employer made a "fair and objective investigation," that "the employer's action was non-discriminatory," and that "the penalty is reasonably related to the seriousness of the {**16 NY3d at 90}offense." After finding Kowaleski guilty, the arbitrator concluded that there was "just cause" for the penalty of discharge, which was not "arbitrary, capricious, unreasonable, or excessive."
Kowaleski filed this CPLR 7511 petition seeking a declaration (1) vacating the arbitrator's opinion and award, and (2) directing that the charges in the Notice be dismissed or remanded for a new hearing before a different arbitrator. DOCS moved to dismiss the petition. Supreme Court found that the arbitrator exceeded his power by ignoring Civil Service Law § 75-b, but concluded that because this was an error of law, the award should not be vacated. The court further reasoned that section 75-b only precludes disciplinary action "taken solely in retaliation," and here witness testimony provided a "separate and independent" basis for the action. Supreme Court found that the arbitrator's findings and award were rational.
The Appellate Division affirmed, with two Justices dissenting. The majority found that although the arbitrator "incorrectly stated that it was beyond his jurisdiction to consider petitioner's claim of retaliation, this error of law does not warrant vacating the award under the circumstances," given the arbitrator's rational and supported finding that Kowaleski was guilty of two of the charges (Matter of Kowaleski [New York State Dept. of Correctional Servs.], 61 AD3d 1081, 1083 [3d Dept 2009]). Moreover, the majority reasoned, the arbitrator did consider "evidence of retaliation in weighing witness credibility and assessing petitioner's guilt" (id.). Two Justices dissented on the grounds that Kowaleski was "deprived of her right to have the arbitrator determine . . . the specific factual issue of whether the disciplinary charges were, in the first instance, initiated and pursued to retaliate for the prior matters" (id. at 1085 [brackets and internal quotation marks omitted]). Kowaleski appealed as a matter of right pursuant to CPLR 5601 (a). We agree with the dissenting Justices and now reverse.
Under CPLR 7511 (b) an arbitration award must be vacated if, as relevant here, a party's rights were impaired by an arbitrator who "exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made" (CPLR 7511 [b] [1] [iii]). It is well-settled that an arbitrator "exceed[s] his power" under the meaning of the statute where his "award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power" (Matter of New York City Tr. Auth. v Transport Workers' Union of Am., Local 100, AFL-CIO, 6 NY3d 332, {**16 NY3d at 91}336 [2005]; see also Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530 [2010]). Outside of these narrowly circumscribed exceptions, courts lack authority to review [*4]arbitral decisions, even where "an arbitrator has made an error of law or fact" (Falzone, 15 NY3d at 534).
Here, the arbitrator clearly exceeded a "specifically enumerated limitation" on his power. As the courts below found, and DOCS concedes, the arbitrator not only had authority to consider Kowaleski's retaliation defense, but was required to do so. Civil Service Law § 75-b prohibits a public employer from taking disciplinary action to retaliate against an employee for reporting "improper governmental action" (Civil Service Law § 75-b [2] [a]). If "the employee reasonably believes dismissal or other disciplinary action would not have been taken but for" the whistleblowing, the employee "may assert such as a defense before the designated arbitrator or hearing officer" (Civil Service Law § 75-b [3] [a]). Whatever the terms of the CBA, "[t]he merits of such defense shall be considered and determined as part of the arbitration award or hearing officer decision" (id. [emphasis added]). In short, the statute requires the arbitrator to consider and determine the merits of an employee's retaliation defense where such a defense is raised (cf. Matter of Obot [New York State Dept. of Correctional Servs.], 89 NY2d 883, 885-886 [1996] [award not vacated where an employee failed to raise the retaliation defense in the arbitration and the arbitrator did not consider it]). If the arbitrator or hearing officer finds that "the dismissal or other disciplinary action is based solely" on the employer's desire to retaliate, the disciplinary proceeding must be dismissed (Civil Service Law § 75-b [3] [a]). Therefore, the arbitrator's finding here that he did not have authority under the CBA to consider Kowaleski's retaliation defense was not only incorrect as a matter of law, but also in excess of an explicit limitation on his power. Because he failed to consider and determine the defense, the award must be vacated.
Contrary to DOCS' position, it was not enough for the arbitrator to hear evidence of retaliation in the context of making determinations as to witness credibility and deciding Kowaleski's guilt. A disciplinary action may be retaliatory even where an employee is guilty of the alleged infraction. Under Civil Service Law § 75-b (3), an arbitrator is required to dismiss a disciplinary action based solely on retaliatory motive, regardless of the employee's guilt or innocence (see Civil Service Law § 75-b [2] [a]; [3] [a]). This separate retaliation inquiry is critical. In {**16 NY3d at 92}order to be effective, whistleblower protections like those embodied in Civil Service Law § 75-b must shield employees from being retaliated against by an employer's selective application of theoretically neutral rules. Thus, a separate determination regarding the employer's motivation in bringing the action is necessary if section 75-b is to truly "establish[ ] a major right for employees—the right to speak out against dangerous or harmful employer practices" (Governor's Approval Mem, Bill Jacket, L 1984, ch 660, at 5).
Because we find that the arbitrator's failure to separately consider and determine Kowaleski's affirmative defense of retaliation on the merits requires the award to be vacated, we [*5]decline to reach Kowaleski's other arguments. We note, however, that she has requested that any rehearing be before a different arbitrator. That request should be ruled on by Supreme Court in the exercise of its discretion.
Therefore, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, petitioner's application to vacate the arbitration award granted, and the matter remitted to Supreme Court for further proceedings in accordance with this opinion.
Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott and Jones concur.
Order, insofar as appealed from, reversed, etc.

Footnote 1: In 2003, Kowaleski had received two notices of discipline, both with dismissal from service as the proposed penalty. In the resulting arbitration, she testified that she had reported a fellow correction officer's misconduct in 2002, and was frequently harassed at work. While noting that it was "not within [his] authority to make a determination of whether harassment occurred," the arbitrator observed that Kowaleski was "the object of animosity and/or harassment" by some of her fellow officers, and that the harassment "may have originated when CO Kowaleski informed her supervisor of the [2002] incident." He found her guilty of some of the disciplinary charges and imposed a 60-day suspension. 

Footnote 2: Kowaleski testified that, in 2002, she observed a fellow officer use excessive force on an inmate, and she refused to sign a report that she had witnessed the inmate assault the officer. The sergeant who was supposed to be supervising when the incident occurred told Kowaleski to "[k]eep [her] mouth shut or else [she] would be escorted off the premises." A group of her coworkers began harassing her, and the harassment escalated after she reported the incident to the administration. A retired correction sergeant who had last worked at Hale Creek in 2005 testified that Kowaleski "couldn't make a move without getting blamed for something."

Interesting FOIL Request To Joe Baranello, Comments By Robert Freeman, NYS Committee on Open Government

FROM: Robert Freeman, 
New York State Committee on Open Government

                                                                    November 10, 2009

The staff of the Committee on Open Government is authorized to issue advisory opinions.  The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.
            As you are aware, I have received a copy of your letter of appeal addressed to Michael Best, General Counsel to the New York City Department of Education, concerning the denial by the Department’s records access officer of a request made pursuant to the Freedom of Information Law by Daily News writer, Juan Gonzalez.  In the letter you indicated that, through its receipt by this office, you are seeking an advisory opinion concerning the propriety of the Department’s response.
            In his request, Mr. Gonzalez sought the following:
“• copies of any correspondence, including email and blackberry messages, between Eva Moskowitz, CEO of both Harlem Success Academy and Success Charter Network, and Schools Chancellor Joel Klein, that specifically relate to requests from Moskowitz for DOE approval of or assistance to Harlem Success in expanding the number of students and/or schools operated by her organizations, and in promoting and marketing her schools to the general public, any an all written requests and/or proposals made by Moskowitz between January 1, 2006 and July 1, 2009 for additional physical space in public school buildings for her charter program.
• copies of any correspondence on the same subject matters, including email and blackberry messages, between Moskowitz and Michael Duffy, executive director of the office of charter schools, for the period of January 1, 2006 to July 1, 2009.
• copies of any correspondence on the same subject matters, including email and blackberry messages, between Moskowitz and John White, chief operating officer of Portfolio Development, for the period of January 1, 2006 to July 1, 2009.”
            The records access officer, Mr. Joseph A. Baranello, denied the request in its entirety, offering several grounds for denial appearing in §87(2) of the Freedom of Information Law.  He referred first to §87(2)(a), which pertains to records that “are specifically exempted from disclosure by state or federal statute.”  In that regard, he cited the Family Educational Rights and Privacy Act, 20 USC §1232g (“FERPA”) concerning records identifiable to students and §§4503 and 3101 of the CPLR, which deal respectively with the attorney-client privilege and attorney work product.  Next, reference was made to §§87(2)(b) and 89(2), both of which permit an agency to deny access insofar as disclosure would constitute “an unwarranted invasion of personal privacy.”  And third, he cited §87(2)(g) concerning inter-agency and intra-agency materials.
            In consideration of the grounds for denial referenced by Mr. Baranello and my understanding of the nature of the records at issue, I offer the following comments.
            First, and significantly in consideration of the absence of any disclosure by the Department in response to the request, and as you know, the Freedom of Information Law is based upon a presumption of access.  Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (j) of the Law.  It is emphasized that the introductory language of §87(2) refers to the authority to withhold "records or portions thereof" that fall within the scope of the exceptions that follow.  In my view, the phrase quoted in the preceding sentence evidences a recognition on the part of the Legislature that a single record or report, for example, might include portions that are available under the statute, as well as portions that might justifiably be withheld.  That being so, I believe that it also imposes an obligation on an agency to review records sought, in their entirety, to determine which portions, if any, might properly be withheld or deleted prior to disclosing the remainder.
            The Court of Appeals confirmed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department, stating that:
"To ensure maximum access to government records, the 'exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption' (Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers Law § 89[4][b]).  As this Court has stated, '[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld' (Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463)" [89 NY2d 267, 275 (1996)].
            Just as significant, the Court in Gould repeatedly specified that a blanket denial of access to records is inconsistent with the requirements of the Freedom of Information Law.  In that case, the New York City Police Department contended that complaint follow up reports could be withheld in their entirety on the ground that they fall within the exception regarding intra-agency materials, §87(2)(g), one of the exceptions cited in response to your columnist’s request.  The Court, however, wrote that: "Petitioners contend that because the complaint follow-up reports contain factual data, the exemption does not justify complete nondisclosure of the reports.  We agree" (id., 276), and stated as a general principle that "blanket exemptions for particular types of documents are inimical to FOIL's policy of open government" (id., 275).  The Court also offered guidance to agencies and lower courts in determining rights of access and referred to several decisions it had previously rendered, stating that:
" invoke one of the exemptions of section 87(2), the agency must articulate 'particularized and specific justification' for not disclosing requested documents (Matter of Fink v. Lefkowitz, supra, 47 N.Y.2d, at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463).  If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material (see, Matter of Xerox  Corp. v. Town of Webster, 65 N.Y.2d 131, 133, 490 N.Y.S. 2d, 488, 480 N.E.2d 74; Matter of Farbman & Sons v. New York City Health & Hosps. Corp., supra, 62 N.Y.2d, at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.).
            In the context of the request, the Department engaged in a blanket denial of access in a manner which, in my view, is equally inappropriate.  I am not suggesting that the records sought must be disclosed in full.  Rather, based on the direction given by the Court of Appeals in several decisions, the records must be reviewed by that agency for the purpose of identifying those portions of the records that might fall within the scope of one or more of the grounds for denial of access.  As the Court stated later in the decision: "Indeed, the Police Department is entitled to withhold complaint follow-up reports, or specific portions thereof, under any other applicable exemption, such as the law-enforcement exemption or the public-safety exemption, as long as the requisite particularized showing is made" (id., 277; emphasis added).
            Second, I agree that those portions of the records sought that include information that is personally identifiable to a student must be redacted to comply with FERPA. I do not believe, however, that the provisions of the CPLR cited in the response are applicable or, therefore, that they may properly be asserted.
            In brief, FERPA applies to all educational agencies or institutions in the United States that participate in federal funding or loan programs.  It generally provides parents of minor students rights of access to education records, a term broadly defined in federal regulations, 34 CFR §99.3, to parents of the students.  Concurrently, it generally prohibits disclosure of personally identifiable information pertaining to a student to the public, unless a parent consents to disclosure.  If portions of the records at issue include information that is personally identifiable to a student, those portions must, in my view, be withheld.  As emphasized earlier, only those portions of the records subject to FERPA may be redacted; the remainder must be disclosed, or conversely, may be withheld, in accordance with the provisions of the Freedom of Information Law. 
            As you are aware, §4503 of the CPLR is a codification of the attorney-client privilege, and §3101 creates an exemption from discovery regarding the work product of an attorney.  Section 3101 pertains disclosure in a context related to litigation, and subdivision (a) reflects the general principle that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action..."  It is intended to shield from an adversary records that would result in a strategic advantage or disadvantage, as the case may be.  In a decision in which it was determined that records could justifiably be withheld as attorney work product, the "disputed documents"  were "clearly work product documents which contain the opinions, reflections and thought process of partners and associates" of a law firm "which have not been communicated or shown to individuals outside of that law firm" [Estate of Johnson, 538 NYS 2d 173 (1989)].  It does not appear that the records at issue relate to litigation or that the intent of §3101(c) is pertinent in the context of your request.
            In another decision in which the ability to withhold records based on the assertion of the attorney-client privilege or that records reflect the work product of an attorney was discussed, it was found that:
"The attorney-client privilege requires some showing that the subject information was disclosed in a confidential communication to an attorney for the purpose of obtaining legal advice (Matter of Priest v. Hennessy, 51 N.Y.2d 62, 68-69, 431 N.Y.S.2d 511, 409 N.E.2d 983).  The work-product privilege requires an attorney affidavit showing that the information was generated by an attorney for the purpose of litigation (see, Warren v. New York City Tr. Auth., 34 A.D.2d 749, 310 N.Y.S.2d 277).  The burden of satisfying each element of the privilege falls on the party asserting it (Priest v. Hennessy, supra, 51 N.Y.2d at 69, 431 N.Y.S. 2d 511, 409 N.E.2d 983), and conclusory assertions will not suffice (Witt v. Triangle Steel Prods. Corp., 103 A.D.2d 742, 477 N.Y.S.2d 210)" [Coastal Oil New York, Inc. v. Peck, [184 AD 2d 241 (1992)].
            In a discussion of the parameters of the attorney-client relationship and the conditions precedent to its initiation, it has been held that:
"In general, 'the privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client'" [People v. Belge, 59 AD 2d 307, 399 NYS 2d 539, 540 (1977)].
            In short, based on the foregoing and in consideration of the nature of the content of the records at issue, I do not believe that they could be characterized as attorney work product.  Further, since it serves as a barrier to disclosure, it is emphasized that the courts have narrowly construed the exemption concerning attorney work product.  It has been held that only the work product that involves the learning and professional skills possessed only by an attorney is exempt from disclosure [see Soper v. Wilkinson Match, 176 Ad2d 1025 (1991); Hoffman v. Ro-San Manor, 73 AD2d 207 (1980)].  Assuming that the records sought do not reflect the specialized skill that can be offered only by an attorney, I do not believe that they can be withheld based on a contention that they consist of attorney work product.  Similarly, based on their content, I do not believe that the records fall within the scope of the attorney-client privilege.  Ms. Moskowitz is not an officer of employee of the Department.  She is not the client of the Department’s attorneys, and to the best of my knowledge, the Department officials with whom she communicated are not attorneys or were not functioning as attorneys.  For the foregoing reasons, the records sought, in my opinion, would not be subject to the exemptions from disclosure conferred by §§3101 or 4503 of the CPLR.
            Next, with respect to the assertion of §§87(2)(b) and 89(2)(b) of the Freedom of the Freedom of Information Law concerning unwarranted invasions of personal privacy, I point out that several judicial decisions, both New York state and federal, pertain to records about individuals in those capacities and indicate that the records are not of a “personal nature.”  For instance, one involved a request for the names and addresses of mink and ranch fox farmers from a state agency (ASPCA v. NYS Department of Agriculture and Markets, Supreme Court, Albany County, May 10, 1989).  In granting access, the court relied in part and quoted from an opinion rendered by this office in which it was advised that "the provisions concerning privacy in the Freedom of Information Law are intended to be asserted only with respect to 'personal' information relating to natural persons".  The court held that:
"...the names and business addresses of individuals or entities engaged in animal farming for profit do not constitute information of a private nature, and this conclusion is not changed by the fact that a person's business address may also be the address of his or her residence.  In interpreting the Federal Freedom of Information Law Act (5 USC 552), the Federal Courts have already drawn a distinction between information of a 'private' nature which may not be disclosed, and information of a 'business' nature which may be disclosed (see e.g., Cohen v. Environmental Protection Agency, 575 F Supp. 425 (D.C.D.C. 1983)."
            In another decision, Newsday, Inc. v. New York State Department of Health (Supreme Court, Albany County, October 15, 1991)], data acquired by the State Department of Health concerning the performance of open heart surgery by hospitals and individual surgeons was requested.  Although the Department provided statistics relating to surgeons, it withheld their identities.  In response to a request for an advisory opinion, it was advised by this office, based upon the New York Freedom of Information Law and judicial interpretations of the federal Freedom of Information Act, that the names should be disclosed.  The court agreed and cited the opinion rendered by this office.
            Like the New York Freedom of Information Law, the federal Act includes an exception to rights of access designed to protect personal privacy.  Specifically, 5 U.S.C. 552(b)(6) states that rights conferred by the Act do not apply to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy."  In construing that provision, federal courts have held that the exception:
"was intended by Congress to protect individuals from public disclosure of 'intimate details of their lives, whether the disclosure be of personnel files, medical files or other similar files'.  Board of Trade of City of Chicago v. Commodity Futures Trading Com'n supra, 627 F.2d at 399, quoting Rural Housing Alliance v. U.S. Dep't of Agriculture, 498 F.2d 73, 77 (D.C. Cir. 1974); see Robles v. EOA, 484 F.2d 843, 845 (4th Cir. 1973).  Although the opinion in Rural Housing stated that the exemption 'is phrased broadly to protect individuals from a wide range of embarrassing disclosures', 498 F.2d at 77, the context makes clear the court's recognition that the disclosures with which the statute is concerned are those involving matters of an intimate personal nature.  Because of its intimate personal nature, information regarding 'marital status, legitimacy of children, identity of fathers of children, medical condition, welfare payment, alcoholic consumption, family fights, reputation, and so on' falls within the ambit of Exemption 4.  Id. By contrast, as Judge Robinson stated in the Chicago Board of Trade case, 627 F.2d at 399, the decisions of this court have established that information connected with professional relationships does not qualify for the exemption" [Sims v. Central Intelligence Agency, 642 F.2d 562, 573-573 (1980)].
            In Cohen, the decision cited in ASPCA v. Department of Agriculture and Markets, supra, it was stated pointedly that:  "The privacy exemption does not apply to information regarding professional or business activities.." (supra, 429).  Similarly in a case involving disclosure of the identities of those whose grant proposals were rejected, it was held that:
"The adverse effect of a rejection of a grant proposal, if it exists at all, is limited to the professional rather than personal qualities of the applicant.  The district court spoke of the possibility of injury explicitly in terms of the applicants' 'professional reputation' and 'professional qualifications'.  'Professional' in such a context refers to the possible negative reflection of an applicant's performance in 'grantsmanship' - the professional competition among research scientists for grants; it obviously is not a reference to more serious 'professional' deficiencies such as unethical behavior.  While protection of professional reputation, even in this strict sense, is not beyond the purview of exemption 6, it is not at its core" [Kurzon v. Department of Health and Human Services, 649 F.2d 65, 69 (1981)].
            In short, in my opinion and as indicated in the decisions cited above, the exception concerning privacy does not apply to records identifying or pertaining to entities or individuals in relation to their business or professional capacities.  It does not appear, therefore, that either §87(2)(b) or §89(2)(b) may validly be asserted as a means of denying access to the records requested by Mr.Gonzalez.
            Lastly, the response referred to §87(2)(g), which may, depending on their content, permit an agency to withhold “inter-agency” or “intra-agency” materials.  It is my understanding that Ms. Moskowitz is the CEO of a corporation, the Success Charter Network, that operates a charter school in New York City. That entity, in my view, is not an agency, and if that is so, §87(2)(g) does not serve as a basis for denying access.
            Section 86(3) of the Freedom of Information Law defines the term “agency” to mean:
"any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."
Based on the definition of “agency”, “inter-agency” materials consist of communications between or among entities of state and local government in New York; “intra-agency” consist of communications within an agency, such as transmissions between the Chancellor and employees of the Department.  Because the communications at issue involved those between or among Ms. Moskowitz, the CEO of a corporation, which is not an agency, and officials at the Department, they could not, in my opinion, be characterized as either inter-agency or intra-agency materials.  If that is so, §87(2)(g) does not apply as a ground for denial.
            Even when that provision is applicable, it does not authorize a blanket denial of access.  Specifically, §87(2)(g) states that an agency may withhold records that:
"are inter-agency or intra-agency materials which are not:
i.  statistical or factual tabulations or data;
ii.  instructions to staff that affect the public;
iii.  final agency policy or determinations; or
iv.  external audits, including but not limited to audits performed by the comptroller and the federal government..."
            It is noted that the language quoted above contains what in effect is a double negative.  While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted.  Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.
            I note that in a case that reached the Court of Appeals, one of the contentions was that certain reports could be withheld because they were not final and because they related to incidents for which no final determination had been made.  The Court rejected that finding and stated that:
"...we note that one court has suggested that complaint follow-up reports are exempt from disclosure because they constitute nonfinal intra-agency material, irrespective of whether the information contained in the reports is 'factual data' (see, Matter of Scott v. Chief Medical Examiner, 179 AD2d 443, 444, supra [citing Public Officers Law §87[2][g][111]).  However, under a plain reading of §87(2)(g), the exemption for intra-agency material does not apply as long as the material falls within any one of the provision's four enumerated exceptions.  Thus, intra-agency documents that contain 'statistical or factual tabulations or data' are subject to FOIL disclosure, whether or not embodied in a final agency policy or determination (see, Matter of Farbman & Sons v. New York City Health & Hosp. Corp., 62 NY2d 75, 83, supra; Matter of MacRae v. Dolce, 130 AD2d 577)..." [Gould et al. v. New York City Police Department, 87 NY2d 267, 276 (1996)].
            The Court also dealt with the issue of what constitutes "factual data" that must be disclosed under §87(2)(g)(i).  In its consideration of the matter, the Court found that:
"...Although the term 'factual data' is not defined by statute, the meaning of the term can be discerned from the purpose underlying the intra-agency exemption, which is 'to protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers' (Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131, 132 [quoting Matter of Sea Crest Constr. Corp. v. Stubing, 82 AD2d 546, 549]).  Consistent with this limited aim to safeguard internal government consultations and deliberations, the exemption does not apply when the requested material consists of 'statistical or factual tabulations or data' (Public Officers Law 87[2][g][I].  Factual data, therefore, simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making (see, Matter of Johnson Newspaper Corp. v. Stainkamp, 94 AD2d 825, 827, affd on op below, 61 NY2d 958; Matter of Miracle Mile Assocs. v. Yudelson, 68 AD2d 176, 181-182)” (id., 276-277).
            In sum, with the exception of portions of the records sought that may be withheld pursuant to FERPA and, therefore, §87(2)(a), it appears that the records must be disclosed, for none of the remaining grounds for denial of access may justifiably be asserted.
            In an effort to enhance understanding of and compliance with the Freedom of Information Law, and to obviate the need for costly litigation, copies of this opinion will be sent to Department officials.
            I hope that I have been of assistance.


                                                                                                Robert J. Freeman
                                                                                                Executive Director
cc: Michael Best
Joseph A. Baranello
Juan Gonzalez

Metaphyics of Substitute vs. ATR

“I am writing for myself and strangers. This is the only way that I can do it. Everybody is a real one to me, everybody is like some one else too to me. No one of them that I know can want to know it and so I write for myself and strangers.” – Gertrude Stein

I am writing this blog so I can forget about what I have written and I won’t annoy my friends and family and countless members of the New York City Department of Education’s bureaucracies by talking at them about this stuff, or venting myself to them through emails, and simultaneously, by blogging, I won’t have to carry any of this to my grave. 

I am reminded of short, cute story by Mark Twain:  The narrator finds himself in the grip of the lyrics of a perfectly inane jingle, “Punch, brothers! punch with care!
Punch in the presence of the passenjare!”  The rhyme sticks to him, and obsesses him almost to the point of Poe-etic madness.  Finally he cures himself by sharing them with someone, and the curse is lifted, but transferred…

By writing, I am hoping to exorcise myself of the content, but also of the need to tell everyone I know through conversation.  I am not very good at conversation, especially when I am singularly monopolized by my own contribution to it.  “Do you realize you have to talk about your job (teaching/school/Department of Education) every five minutes?”

Students become very anxious when someone other than their teacher walks into the classroom, and those feelings only increase when the teacher isn’t there at all.  The more experienced and even jaded students spread the word, “Hey, it’s a sub! No work today!”  The class bully, or clown, or gang leader- every class has got one, occassioually more than one, so there might be a shouting match for the turf.  Maybe a very nice girl, one who usually sits in the first or second seat from the front, generally an asile or two from the side will pipe in, “Everybody be quiet.   He seems like a nice sub,”  Somehow kids know that to control an adult you need to have the “good cop” kids, and the trouble makers.  The trouble-makers divert attention while the nice kids can do what they want to do, which ranges from coloring and practicing spelling words, to applying nail polish or braiding hair.  The better boys, so as not to show how lonely they feel having been ostracized by the badder ones, hide themselves in their workbooks, or raise their hands to ask a question, which, as soon as they are called on, claim to have forgotten what they wanted to ask.  So you reassure them, and as soon as attention is given to another student, the kid with the question, and no group to call his own, raises the hand, (actually the entire arm, often supporting it at the elbow with his other hand) and frantically waves for your attention while simultaneously repeating, in a stage whisper, “I remembered what it was I wanted to ask,” and does the pee-pee dance with his knees under his desk, without ever moving his feet from that position of perfect obedience, flat on the floor.

I am telling you all this because I want to illustrate the great and terrible fear that students experience when their regular teacher isn’t there and someone they don’t know, or might only know from the rare occasions when their teacher is actually absent.  That terrible fear is the feeling that with the absence of the teacher, their identity has been taken too, and they must start the arduous task all over again, from the beginning, to create and sustain a personality and identity for the new teacher in charge.

Students see themselves as Mary or Sally or John or David because that is what their teacher has been calling them.  They know themselves, in the context of the classroom, by the way they are called and known by the teacher in charge.  The TIC, if we want to show we, as educators, are with the program.

So, aware as I am that they fear that their identity has somehow been kidnapped, and is in the possession of their regular teacher, I have ways to reassure them that they still exist, as a person, even if the regular person-validation machinery is slightly out of order, with a simple set of identity reinforcing techniques.

First, for the class bully, or the bossy ones who try to take control before you have even introduced yourself, I write something introductory on the board:

Unfortunately, Miss Crabtree cannot be with us for this class, though she may just be late. 
Mr. Hedges, from the Department of Education is here to observe the class.

Students have a choice of gradable activities:
            word search (science, language arts, foreign language, careers, vocabulary)
            Business and Career Vocabulary Builders
            Brain teasers:
       write 10 three letter words, each of which is a part of the human body
       write a sentence, phrase, or poem where the first word is one-letter long, the second is two letters, the third is three, and so on.  See how far you can get.
       write a story where the first word starts with the first letter of the alphabet and the second with B, third with C, up to Z

Business sense: You are organizing a party for your best friend.  How many guests will you invite?  How will you decorate the room?  What food and drinks will you provide?  What time will it start and end?  How will the food and drinks be served?  Who will take care of the clean up?

Make a list of the food, drink, decorations, other items you need for the party.
Estimate the costs.

The metaphysical conflicts that arise when an adult who isn’t the regular teacher shows up on his or her place, and then identifies himself or herself as a substitute for that teacher, are not insignificant in the socially constructed setting of the classroom.

Depending on how young the student is, associations and analogies from universal fairytales must encroach involuntarily.  The substitute teacher, also involuntarily, is blind to the weeks and maybe years of identity work and personality development that allows that student and the regular teacher to know and recognize one another.  We know who we are because we, and others acknowledge a degree of self-sameness in one another.  Remarks such as, “You seem angry today, you don’t seem to be your real self.  Did something happen on the playground,” flow perfectly naturally from the adult mouth to the child’s ear, but children are much less certain about who they are when adults see them, as compared to the way other children might.  The remark cite above that is intended to comfort the child might confuse and insult them. 

In the same way, an adult who is claiming to be a substitute for the child’s teacher might cause some confusion and anxiety and cause the child to question his own sanity, or the trustworthiness of the adult.

When I start the class, in the role of the substitute, I never use the “S” word.  First, I explain to the students that their regular teacher cannot be here with us today and that I am just here to observe or watch over them while they occupy themselves with certain specific activities, of which there is a choice.  I reassure them that I will not try to teach them, because they already have a very good teacher and it is confusing to students when they are taught by too many people, especially when they weren’t really expecting it.

Different classrooms are set up in different ways.  The graphic organizer I will use to demonstrate how to reassure a child that he or she is still in full possession of their identities, (that their identities have not been kidnapped by the missing teacher), is a simple grid.  It is not the exact pattern for every classroom, but the method I use of going from student to student varies only slightly.



I have numbered each of the boxes to show the path I take through the student section of the classroom.  I always begin at seat #1.  I present the seating chart for each student to understand and ask them if they can find their seat on the grid.
It is worth noting that many students are anxious about having their attendance taken and if you are a new Substitute, or ATR, they may want to help you, or do it for you, or just pass around a sign-in sheet.  While we are always grateful for student volunteers, I want to stress that this is not simply an attendance procedure but it is a way of allowing each student to feel connected to his or her identity, to share it, without giving it away or losing control over it.  It is therefore very important that I give each student a well calculated portion of my personal time and that I use the student’s name with him or her, in a private one-to-one conversation.  The is, as you can imagine, a real danger of what I call the “Class-Identity” to take over, and turn a group of individuals in to a crowd where collective behavior, rather than individual conscience, has control of the room.

First, I make it clear to the students who are worried about my taking proper care of their attendance, that as soon as everyone has begun sitting, I will begin to take their attendance. 

Usually, as students are entering the room I have already handed them an assignment paper.  Something familiar looking, like a word search, or an index card with a riddle on it.  I welcome them, and apologize to them, individually if necessary, that their regular teacher is away for the day.  When students accept the paper, (it could be a sheet of blank loose-leaf with verbal instructions to write their names, the date, a little story about a good day they had recently, and to include colors and weather and other details that can make it more interesting and real)

Soon most of the students are sitting at their desks, or have changed their seats for the day so they can sit nearer to their friends.  I do not discourage this.  I can generally tell if a student is not sitting in his or her assigned seats (assuming they have been assigned their seats).  If students are turning around to talk to the students behind them, I may delay the attendance procedure and ask them to move their desks into a group, that way they can keep their voices down and they can all work at producing something really good by the end of the class.

Beginning with Box #1 I say, “Hello.  I am Mr. David (I used to say Mr. Hedges, but I’d usually have to repeat it.  David is one of those “got it the first time” names, and it builds their confidence.  I recommend simple, familiar first names, like Ms. Theodore, or Mr. James, or Mr. Sandelowsky, but call me Mr. S.)

Teacher: Hello.  I am Mr. David.  This is a graphic organizer or seating chart of the whole classroom and you are going to be the first to write your name on it.  Notice you are sitting row closest to the wall, and all the way in the back.  Can you find your spot on the chart?”  [Sometimes kids need a little help, but mostly they want to try.]  Yes, that’s right.  Now, would you please print your first and last name in the box?  [I always ALWAYS hand the student my pen, even if they have their own.  I will write more about the kind of pen I use and why it is important at a later time.

After the student has written his or her name I pick up the clipboard and read it aloud.  Lazarus, I say, what a great name.  What a great sounding name.  The “S” at the end seems to just go on forever, like music, right?  Can you tell me something about your name?

And the student might tell me something of family history, or of its biblical meaning. 

All of this takes about a minute, rarely more. 

“Thank you, Lazarus,” I say and I move now to spot #2. 

“Hello.  You are Lazarus’s left-hand learning partner aren’t you.  See where Lazarus has printed his name?  Where do you think you will print your name?  Here, would you like to use my pen? [the pen is offered].  The same light conversation between student two and myself.

The I move up to the student who is sitting in front of student #2. 

“Hello,” I say.  You are sitting ahead of Ben, and just one up and one over from Lazarus.  Do you see where your name goes?  “Here, please use my pen.”

When I get to the top of the row I turn to the row I have just completed and using simple body language, such as a nod, or a smile, I get the entire two rows to realize what they have just done and that I am now going to walk to the back of the class and begin the same process with the next two rows.  They know what I must do, and they behave respectfully, cooperatively and I thank them for it when I get to the top of the second set of rows.  You can say things like, This row has been very busy working independently so I can hear everybody’s name and nobody is being left out.  Thank you.  You guys are awesome!

As time remains, you as the teacher will have identified which students would benefit with a little more attention, or with a little less.  You have identified who might be a good learning partner or buddy, and which students need to do their own thing and not to pay them any attention, until they do something helpful or productive.  For example, I had a student who wouldn’t sit down.  I called him the class’s social ambassador.  As he walked from group to group or student to student, I didn’t pay him any mind.  BUT, as soon as he took his seat, I looked over, from the other side of the room, and gave him the attention he had seen others getting.  I walked over, congratulated him and his group on having settled on a mini project that would make their regular teacher happy when she returns, tomorrow, and I took out a highlighter and drew a box around all the members of the group to show that they were now all included in that group and told them that when their teacher comes back, she would be proud to see how well they were working together that day.