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Executive Session

What Happens in Executive Session Stays in Executive Session

On August 17, 2017, New York State Commissioner of Education Mary Ellen Elia removed Buffalo City School Board Member Carl Paladino. Elia based her decision on Paladino’s public disclosure of confidential information discussed in executive session of a school board meeting.

Removal of a school board member is relatively rare. So this should serve as a reminder that executive session information must remain confidential.

What is an Executive Session?

An executive session is a portion of a board meeting that is not open to the public. School boards, and other public boards, can only enter executive sessions for specific purposes.

The following are the permissible subjects for executive sessions of public board meetings in New York:

  • matters which will imperil the public safety if disclosed;
  • any matter which may disclose the identity of a law enforcement agent or informer;
  • information relating to current or future investigation or prosecution of a criminal offense which would imperil effective law enforcement if disclosed;
  • discussions regarding proposed, pending or current litigation;
  • collective negotiations pursuant to article fourteen of the civil service law;
  • the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation;
  • the preparation, grading or administration of examinations; and
  • the proposed acquisition, sale or lease of real property or the proposed acquisition of securities, or sale or exchange of securities held by such public body, but only when publicity would substantially affect the value thereof.

These subjects all generally relate to confidential matters, therefore justifying their exclusion from public consumption.

Legal Standards

Per the New York General Municipal Law:  “No municipal officer or employee shall . . . disclose confidential information acquired by him in the course of his official duties or use such information to further his personal interests.”

New York’s Education Law permits the Commissioner to remove a school official for any “wilful violation or neglect of duty.”

Paladino’s Improper Disclosure

The Buffalo Board of Education filed a petition seeking Paladino’s removal for disclosing information discussed in several executive sessions. Specifically, the Board alleged that Paladino disclosed information about pending litigation, a personnel matter, and matters pertaining to collective bargaining negotiations.

Commissioner Elia did not find Paladino at fault for dislosures about pending litigation or the specified personnel matter. However, she did find that he improperly disclosed information about collective bargaining in a January 5, 2017 Artvoice article.

The Buffalo School Board discussed contract negotiations with the Buffalo Teachers Federation (BTF) in an executive session in October 2016. The discussions apparently included advice from the school district’s legal counsel.

Paladino evidently wrote about this executive session at length in his January Artvoice article. He wrote, in part, as quoted in the Commissioner’s decision:

“In an executive session on the Wednesday before [the president of the BTF’s] scheduled meeting, [counsel] brought the Board up to date on what terms had been agreed to. [The superintendent] said he needed authority for more money from the reserves. He said he needed another $10 million and he was certain he could get the return of the management prerogatives and even end lifetime health care for new hires, but he had to put the money on the table to avoid a disastrous strike.”

Commissioner Elia noted that these disclosures “revealed potential vulnerability on the part of the superintendent.” She emphasized that “the president of the BTF testified that respondent’s disclosures were a boon to him and the BTF because they showed that the district would easily acquiesce during contract negotiations in response to pressure.”

The Commissioner denied Paladino’s various defenses, including his request for a certificate of good faith. With the certificate, Paladino could have required the School District to reimburse his legal fees.

Paladino’s attorneys promptly announced that Paladino would appeal the decision.

The full decision by Commissioner Elia is available here.

You may also be interested in my post on the disciplinary process for tenured school teachers in New York State.

 

Ban-the-Box

Checking in on New York Ban-the-Box Laws

“Ban-the-box” laws get their name because they literally prohibit employers from including a check box (or other item) on job applications asking whether the applicant has a prior criminal record. New York does not have a state ban-the-box law, but the three largest cities in the state have implemented these laws through local ordinances. If you are hiring in or do business with these cities, then you need to double check your employment applications to make sure your organization is in compliance.

Please note that the New York State Human Rights Law does restrict inquiries about criminal records to some degree. However, before the ban-the-box laws, it has generally been permissible to at least ask whether the applicant has ever been convicted of a felony on job applications.

Buffalo Ban-the-Box Law

The City of Buffalo passed a ban-the-box law in 2013 that took effect in 2014. This law applies to employers (public and private) located within the City of Buffalo, as well as any vendors of the City of Buffalo (regardless of location), with 15 or more employees. The law prohibits these covered employers from asking about criminal convictions on job applications and anytime before the first job interview.

Job applicants may sue employers directly for violating this law. If they prevail, applicants can recover injunctive relief, damages, and attorneys’ fees.

Anyone can also file a complaint with the Buffalo Commission on Citizens’ Rights and Community Relations. This Commission can cause the City of Buffalo’s Corporation Counsel to purse a claim against an employer in violation of the ban-the-box law. Penalties include $500 for the first violation and $1,000 for each subsequent violation.

There are some exceptions to the Buffalo ban-the-box law for situations where criminal convictions would provide a legal restriction on the ability of the applicant to perform the job.

Rochester Ban-the-Box Law

Rochester, New York also imposed a ban-the-box law in 2014. It applies to all employers (public and private) and employment agencies with 4 or more employees that employ individuals within the City of Rochester. It also applies to as to any vendors, contractors, or suppliers of services or materials to the City of Rochester (regardless of their location).

Like the Buffalo law, Rochester’s ban-the-box law allows applicants to sue employers directly for injunctive relief, damages, and attorneys’ fees. Also like the Buffalo ban-the-box law, Rochester’s law permits the City’s Corporation Counsel to bring legal action to recover civil penalties of $500 for the first violation and $1,000 for each subsequent violation.

The Rochester ban-the-box law also has some exceptions. For example, it allows inquiries where the conviction would legally prohibit someone from working in the position.

New York City Ban-the-Box Law

The New York City Fair Chance Act took effect on October 27, 2015. It prohibits employers with 4 or more employees from asking about an applicant’s pending arrest or criminal conviction record until after the employer has made a conditional offer of employment. Under this law, employers are further prohibited from even searching publicly available sources to obtain information about an applicant’s criminal history before making a conditional offer of employment.

Again, there are exceptions where a law requires a background check for a particular job or a criminal conviction would legally bar the applicant from taking the position.

Additional Considerations

The New York City Fair Chance Act has additional components designed to protect employees from discrimination based on criminal records. The New York State Human Rights Law and the federal Title VII civil rights law also provide some protections in this area.

In New York, employers who consider prior criminal records in hiring must consider all of the following factors before deciding not to hire based past criminal convictions:

  1. The public policy of the state to encourage the employment of persons previously convicted of one or more criminal offenses.
  2. The specific duties and responsibilities necessarily related to the employment sought or held by the person.
  3. The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities.
  4. The time which has elapsed since the occurrence of the criminal offense or offenses.
  5. The age of the person at the time of the occurrence of the criminal offense or offenses.
  6. The seriousness of the offense or offenses.
  7. Any information produced by the person, or produced on his behalf, regarding his rehabilitation and good conduct.
  8. The legitimate interest of the public agency or private employer in protecting property and the safety and welfare of specific individuals or the general public.

The U.S. Equal Employment Opportunity Commission (EEOC) has also indicated that use of criminal records in hiring, though not specifically addressed by federal statutes, can result in discrimination on the basis of other legally protected characteristics, such as race and national origin.

When Should I Ask about Criminal Records?

Employers in cities with ban-the-box laws may not initially ask about criminal convictions, unless the information is related to a job criteria imposed by law. Moreover, even where there is no ban-the-box law in place, New York employers in particular should be careful with obtaining and considering criminal record information in making employment decisions.

First, if you are going to obtain a background check from a third party service, remember that you must obtain written authorization from the applicant and satisfy other requirements of the Fair Credit Reporting Acts.

Second, if you obtain any information about prior criminal records, either from the applicant directly or through other sources, then you must carefully consider whether the conviction(s) should disqualify the candidate for employment. In New York, employers should specifically document their analysis of the eight factors listed above, as established by the New York Corrections Law. The EEOC also suggests that employers should be weighing similar factors before denying employment.

Third, given the above considerations, many employers would be well-advised not to seek any information about a job candidate’s criminal history until after making a conditional offer of employment. This will help protect against claims of criminal record discrimination in cases where the applicant would not have been hired anyway based on other criteria. It will also limit the instances where background checks need to be obtained and the multi-factored analysis described above needs to be conducted.

If you need assistance in establishing a process for considering applicant criminal histories or evaluating a particular candidate under the New York Corrections Law factors, you can contact me.