On December 11, 2018, the New York Court of Appeals issued a decision (over two dissenting opinions) addressing public access to police personnel and disciplinary records. The Court held that certain personnel records sought by the New York City Civil Liberties Union (“NYCLU”) pursuant to the Freedom of Information Law (“FOIL”) are exempt from disclosure under New York Civil Rights Law § 50-a and New York Public Officers Law § 87(2)(a). In doing so, the Court affirmed the decision of the Appellate Division, First Department, and the broad applicability of Civil Rights Law § 50-a to requests for police personnel/disciplinary records.
On September 7, 2018, Governor Cuomo signed legislation that amended Civil Service Law Section 75. Pursuant to the amendments, Section 75 now extends hearing rights (i.e., the right to written disciplinary charges and a hearing before imposition of a reprimand, fine, suspension without pay, demotion or termination) to “Labor Class” employees after five years of continuous service. This is the same protection that has previously been afforded to employees in the Non-Competitive Class after five years of continuous service and employees in the Competitive Class immediately upon permanent appointment. Prior to this amendment, Labor Class employees had no such protections unless they were veterans or exempt volunteer firefighters. The amended law is effective immediately. If you are a public employer and have any Labor Class employees who have completed five years of continuous service, they are now protected pursuant to Section 75.
On June 27, 2018, the Supreme Court struck down mandatory “agency” or “fair share” fees for public sector employees who decline to become union members. In the decision, Janus v. AFSCME, the Court held that an Illinois statute compelling public employees who choose not to be members of a union to pay agency fees to the union that represents them violates the First Amendment, because it requires those employees to financially support an organization which they did not join voluntarily and whose ideas and speech they may disagree with.
Mark Janus, an Illinois child welfare worker, decided not to join the American Federation of State, County, and Municipal Employees -- the union that represents his public sector co-workers. Under Illinois law, however, Janus is still required to pay fees to the union. These fees are known as “fair-share” fees, a label which refers to the Illinois law requiring the union to “fairly” represent Janus and all of his co-workers, whether or not they are union members. For this representation, non-union members like Janus must pay a “fair-share” fee,” which is approximately 78 percent of the full union dues, and in Janus’ case, amounts to $23.48 per pay period.
Janus has objected to the payment of this fee, and his case has reached the United States Supreme Court. A ruling by the Court in Janus v. AFSCME will be released very soon, and that ruling is expected to strike down the Illinois “fair share” law and similar state laws (including the law in New York) because they violate the United States Constitution.
On December 18, 2017, Governor Cuomo signed legislation that amended Civil Service Law Sections 159-b and 159-c. Currently, those sections entitle most public sector employees to take up to four hours of paid leave per year to be screened for breast cancer (159-b) and up to four hours of paid leave per year to be screened for prostate cancer (159-c), without deducting any leave time (e.g., sick, personal, or vacation) from the employee.
Effective March 18, 2018, Civil Service Law Section 159-b will be amended by broadening the scope of that provision so that it will apply to all cancer screenings. Because Section 159-b will now apply to all types of cancer screenings (including screenings for prostate cancer), Civil Service Law Section 159-c (relating to prostate cancer screenings) will be repealed.
Public employers should review their policies to ensure that employees are permitted to take up to a maximum of four hours of paid leave per year for any type of cancer screening, without deducting any other leave time (e.g., sick, personal, or vacation) from the employee.
Municipal police employers who thought that their payment of benefits to injured police officers under General Municipal Law Section 207-c shielded them from tort claims brought by those injured officers need to think again.
Some municipal police employers, particularly larger ones, opt not to carry workers’ compensation coverage. Such coverage is costly. Moreover, there was a thought that Section 207-c, which provides injured officers with payment of full (tax free) salary during their absence from work and covers the cost of their medical treatment and health care, was an injured officer’s exclusive remedy against his/her employer and shielded the employer from lawsuits filed by its police employees. Until recently, that belief had the support of multiple state appellate court decisions. For example, in Nieves v. City of Yonkers, the Appellate Division, Second Department, held that an officer, having received Section 207-c benefits, could not assert a tort claim against his employer. Similarly, in Damiani v. City of Buffalo, the Appellate Division, Fourth Department, held that an officer’s right to the receipt of Section 207-c benefits was the exclusive remedy for injuries caused by a fellow officer.
However, the recent New York Court of Appeals holding in Diegelman v. City of Buffalo dispels that notion. In that case, the Court of Appeals held that “where the municipal employer has elected not to provide coverage pursuant to the Workers’ Compensation Law, a police officer who suffers a line-of-duty injury caused by the employer’s statutory or regulatory violations may pursue a section 205-e claim.” In reaching its decision, the Court evaluated the interplay between Section 207-c, General Municipal Law Section 205-e, and the Workers' Compensation Law. Section 205-e allows police officers to bring tort claims for line-of-duty injuries in certain delineated instances. Conversely, the Workers’ Compensation Law completely precludes an employee from pursuing a tort claim against his employer for injuries sustained in the course of employment.
The Diegelman majority reasoned that while the language in Section 205-e precludes a tort action by recipients of workers’ compensation benefits, it makes no mention of Section 207-c, though it certainly could have if the legislature so intended. The majority also rejected the argument that because of the superior benefits provided by Section 207-c, it “is essentially a super workers’ compensation scheme for police officers.” Perhaps most tellingly, the majority also noted that prior judicial efforts to restrict the breadth of Section 205-e had all been met with legislative enactments abrogating those holdings.
Judge Pigott authored a dissenting opinion in which he noted that Section 205-e was intended as a cost-savings measure for the benefit of the municipal employer. In other words, it was intended to allow the injured officer to sue third parties while permitting the employer to file a lien and recoup its Section 207-c costs from that third party wrongdoer. Judge Pigott also questioned the logic of allowing an injured police officer who receives Section 207-c benefits to pursue a tort claim against his/her employer while precluding other employees who receive inferior benefits under the Workers’ Compensation Law from doing so.
Diegelman should serve as a wakeup call. Municipalities that do not provide workers’ compensation coverage for their police officers should engage in a renewed analysis and determine whether the costs and potential liability inherent in defending police officer tort claims outweigh the cost of securing and providing workers’ compensation coverage.
On March 29, 2016, the Supreme Court issued a one sentence opinion in the highly publicized case of Friedrichs v. California Teachers Association, stating “[t]he judgment is affirmed by an equally divided Court.” This outcome was not unexpected after the death of Supreme Court Justice Antonin Scalia left the Supreme Court with eight remaining Justices. This split decision means that public sector agency shop fees are still lawful, and that state statutes authorizing agency shop fee arrangements (including New York's Taylor Law) remain constitutional.
Although the Supreme Court has issued an opinion, it seems that this case is far from over. In a press release issued on the day of the decision, the President of the Center for Individual Rights (the public interest law firm that originally brought the case on behalf of the petitioners), Terry Pell, stated, “We believe this case is too significant to let a split decision stand and we will file a petition for re-hearing with the Supreme Court.” Considering the significance of this issue, it appears likely that a petition for re-hearing will be granted once another Supreme Court Justice is appointed and confirmed.
As we reported in a prior blog post, there is a case currently in front of the U.S. Supreme Court (Friedrichs v. California Teachers Association) in which the mandatory payment of union agency shop fees by public sector employees is being challenged as unconstitutional. Oral argument in the case was heard by the Supreme Court on January 11, 2016. On February 13, 2016, Supreme Court Justice Antonin Scalia passed away. What is the likely impact of Justice Scalia's death on the outcome of this case? It was anticipated that based upon the questions posed during oral argument that the justices would likely find in favor of the petitioners by a ruling of 5-4, with Justice Scalia being one of the five justices holding that union agency shop fees in the public sector are unconstitutional. Justice Scalia’s predicted opinion on the issue was evidenced by the following discussion with the petitioners' counsel during the oral argument regarding whether it would even be permissible to require someone to contribute to a cause that he or she does believe in, let alone a cause that he or she does not wish to support: Justice Scalia: Mr. Carvin, is -- is it okay to force somebody to contribute to a cause that he does believe in? Mr. Carvin: I wouldn’t think, Your Honor, that you could force Republicans to give contributions. Justice Scalia: Yes. That’s -- that's what I’m thinking. Could you enact a law? Let’s say the national political parties are in trouble so they enact a law that says all -- all members of the Republican party, if you want to be a member you have to contribute so much money. Mr. Carvin: No. Justice Scalia: Is that okay? Mr. Carvin: No, it’s not, and that’s because the bedrock principle, as Harris made clear, is not whether or not you vividly oppose what they’re saying -- Justice Scalia: Right. Mr. Carvin: -- it's because you don't wish to subsidize it. Justice Scalia: Exactly. So I don't know why you're putting so much emphasis on the fact that your -- your clients oppose. It really wouldn't matter, would it? Mr. Carvin: No. The death of Justice Scalia leaves eight Supreme Court justices, which could result in a 4-4 tie in one of the closest cases of this term. Many political commentators believe it is unlikely that another Supreme Court justice will be appointed before June decisions are published by the Court. In the event that there is a 4-4 tie, the lower court decision stands. In Friedrichs, the lower court decision of the Ninth Circuit affirmed the district court’s finding in favor of the union. Therefore, a 4-4 tie would mean that union agency shop fees in the public sector would remain constitutional, at least for now. If this occurs, the petitioners' counsel has already announced that they intend to seek a rehearing next term by the full Court.
On December 28, 2015, Governor Cuomo signed a bill repealing Civil Service Law § 75-b(2)(b). This has a significant effect on the anti-retaliation provisions of New York’s “whistle blower” protection statute for public employees who report to a governmental body either (a) violations of a law, rule or regulation, or (b) something which an employee reasonably believes to be “improper governmental action."
Civil Service Law § 75-b protects public employees who are whistle blowers against retaliation by public employers (which includes the State of New York, counties, cities, towns, villages, and school districts). As originally enacted, § 75-b(2)(b) (now repealed) required that a public employee, in order to invoke the anti-retaliation protection, first “shall have made a good faith effort to provide the appointing authority or his or her designee the information to be disclosed and shall provide the appointing authority or designee a reasonable time to take appropriate action unless there is imminent and serious danger to public health or safety.”
With the repeal, there now appears to be no requirement that the employee report the issue internally before taking it to another governmental body. While no doubt well-intentioned, the repeal may very well empower disgruntled employees to pepper regulatory and criminal authorities with complaints of alleged misconduct.
In addition to the fact that public employers should generally be aware of this change, public employers should also examine and review their existing whistle blower policies to determine if any revisions should be made.
In the classic 1980's comedy "Say Anything," the iconic high school senior Lloyd Dobler articulates his career goals as follows: "I don't want to sell anything, buy anything, or process anything as a career. I don't want to sell anything bought or processed, or buy anything sold or processed, or process anything sold, bought, or processed, or repair anything sold, bought, or processed. You know, as a career, I don't want to do that." A cursory Google search reveals that this 25 year old quote still resonates with much affection. But what may be deemed a charming lack of ambition from a teenaged movie character can be the death knell of a First Amendment case brought by a plaintiff who turns this quote into a veritable workplace mantra. Take for example the recent case of Alves v. Board of Regents of the University System of Georgia. In Alves, five psychologists of the Georgia State University Counseling Center submitted a written memorandum to the Counseling Center's director and the director's supervisor, criticizing the director's leadership and management, which they claimed "created an unstable work environment" and prevented the staff from being effective in their work. The memorandum set forth five areas of concern, including deficiencies in management, witness tampering, and selective treatment of staff based on race. A short time later, the director implemented a reduction in force affecting all the staff psychologists, all but one of whom were signatories to the memorandum, and outsourced their services at allegedly lower costs. The five psychologists who had signed the memorandum filed a First Amendment retaliation suit, claiming that they were fired for the "speech" contained in the memorandum, which they contended was made by them as ordinary citizens on matters of public concern. The defendants moved for summary judgment dismissing the complaint, arguing that under the Supreme Court's decision in Garcetti v. Ceballos, the memorandum was written about matters of only personal interest pursuant to the plaintiffs' official duties as employees, rather than about matters of public concern. The lower court agreed with the defendants and dismissed the complaint, which resulted in an appeal to the Eleventh Circuit Court of Appeals. On appeal, the five psychologists employed a Dobleresque view of their job responsibilities, arguing that raising ethical issues and protesting alleged supervisory incompetence were simply not within the ordinary ambit of their job duties. In other words, according to the plaintiffs, their job was only to provide counseling services to students -- not to "process" or "repair" anything within the broader universe of their workplace. The Eleventh Circuit disagreed and affirmed the dismissal of the plaintiffs' complaint. The Court found that the plaintiffs' protests were in furtherance of their ability to perform their job responsibilities with the goal of ending perceived mismanagement. The Court determined that these were matters of personal interest rather than public concern, and therefore, were not protected by the First Amendment. The long and short of Alves and the cases that follow similar reasoning is that while a public employee may say anything in a lawsuit to try to limit their true job responsibilities, lack of ambition, whether real or feigned, is rewarded with applause only in the movies.
Recently, the United States Supreme Court commenced a new session with a docket full of interesting cases. One case, Friedrichs v. California Teachers Association, is of particular significance to those in the field of public sector labor law. A decision in favor of the plaintiffs has the potential to affect the implementation and regulation of union agency shop fees nationwide.
The case was originally brought by a California public school teacher, Rebecca Friedrichs, who argued that the mandatory payment of agency shop fees violated her First Amendment right to free association and free speech. Currently, public sector employees in New York who choose not to join the union that has been certified as their collective bargaining representative are required under the Taylor Law to pay fees associated with the union’s collective bargaining and contract administration costs. These fees are called “agency shop fees.”
Agency shop fees may not include any political costs associated with running the union. However, the plaintiffs in Friedrichs argue that it is difficult to separate the political costs associated with public employee unions from the collective bargaining and contract administration costs. In their Petition for a Writ of Certiorari to the Supreme Court, the plaintiffs wrote: “In this era of broken municipal budgets and a national crisis in public education, it is difficult to imagine more politically charged issues than how much money cash-strapped local governments should devote to public employees . . . .”
Similar to the issues presented in some of the other cases on the docket this session, the issue of agency shop fees in the public sector has recently been before the Supreme Court. In the 2014 case of Harris v. Quinn, the Court addressed the issue of whether the First Amendment prohibits the collection of agency shop fees from Rehabilitation Program Personal Assistants employed by the State of Illinois who choose not to join or support the union. The facts in Harris led to a narrow opinion by the Court that the First Amendment rights of the Personal Assistants would be violated by the collection of agency shop fees because the customers (recipients of home care services), rather than the State of Illinois, controlled most aspects of the employment relationship and the scope of the collective bargaining provided by the union on behalf of the Personal Assistants was extremely limited. The Court also noted that the traditional “free-rider” argument that had previously supported agency shop fees in the past was weakening in light of First Amendment scrutiny.
The defendants in Harris and in Friedrichs both rely on the Supreme Court’s 1977 decision in Abood v. Detroit Board of Education. In Abood, the Supreme Court held that although it was unconstitutional to collect fees from non-member employees to support political or ideological causes, unions have the right to require employees within the bargaining unit who choose not to become union members to contribute to the cost of collective bargaining activities. Notably, unions are also required to provide some sort of notice to all members of the bargaining unit as to what the fees are being used for, in an effort to allow time for any objections by non-member employees to their agency shop fees being contributed to political causes.
What does this mean for public sector employers in New York? The plaintiffs in Friedrichs are seeking to overrule the precedent set in Abood by either abolishing agency shop fees, or, in the alternative, by creating a system whereby non-member employees must opt in (rather than opt out) of the payment of such fees. Section 208.3 of the Taylor Law provides that each public employee union in New York is entitled to have deducted from the wage or salary of non-member employees within the bargaining unit the amount equivalent to the dues levied by the union against member employees. Section 208.3 also requires, as a condition of this agency shop fee deduction, that the union must establish and maintain “a procedure providing for the refund for any employee demanding the return of any part of an agency shop fee deduction which represents the employee’s pro rata share of expenditures by the organization in aid of activities or causes of a political or ideological nature only incidentally related to terms and conditions of employment.” If the Supreme Court rules in favor of the plaintiffs, the constitutionality of this provision of the Taylor Law could also be subject to challenge.
In the meantime, stay tuned for further developments regarding this case, and be on the lookout for oral arguments in the next few months.
As many school districts are aware, it is not uncommon for a district to receive a request to disclose allegedly relevant student records to a tenured teacher facing disciplinary charges in the context of an Education Law Section 3020-a proceeding. However, as school districts are also aware, the Family Educational Rights and Privacy Act (FERPA) protects the privacy of student educational records and prohibits the disclosure of such records except in limited circumstances. Thus, the teacher’s right to access evidence relevant to his/her defense must be balanced against a student’s right to privacy in his/her educational records. The decision recently issued by the Appellate Division, Fourth Department, in In re Watertown City School District v. Anonymous is a good reminder to school districts that a teacher's right to access student records in a disciplinary proceeding is not absolute. At issue in the Watertown City School District case was whether a tenured teacher could compel the school district to disclose student records that the teacher claimed were “highly relevant” and “necessary” to the teacher’s defense to disciplinary charges. The teacher served on the district a broad subpoena seeking the production of all student records for all student witnesses who would be testifying against the teacher during the disciplinary hearing. The sole limitation on the teacher’s request was that records prior to seventh grade were not requested; all other student records were requested under the subpoena. The district objected that the student records sought were irrelevant and protected under FERPA, and ultimately brought a proceeding in New York State Supreme Court to quash the subpoena. The Supreme Court disagreed with the district, and ordered the district to produce all of the records requested under the subpoena. However, on appeal, the Appellate Division reversed the lower court's ruling, and granted the school district's petition to quash the subpoena. The Appellate Division explained that the teacher was required to come forward with a factual basis establishing the relevance of the documents sought. The Court held that the teacher failed to meet this burden, principally because the allegations of misconduct against the teacher involved activities outside the classroom and the teacher did not provide any specific information regarding how the students' educational records were relevant to her defense. In light of the Appellate Division’s ruling in the Watertown City School District case, school districts can breathe at least a small sigh of relief knowing a tenured teacher facing disciplinary charges cannot gain unfettered access to student records in search of evidence to use in his/her defense. At a minimum, the teacher must establish a factual basis demonstrating that the student records sought are relevant and reasonably related to the teacher’s defense.