author: Pigott, J. Ciparick, J. (dissenting).

text:
    [958 NE2d 899, 934 NYS2d 770]
    In the Matter of the Arbitration between Johnson City Professional Firefighters Local 921 et al., Respondents, and Village of Johnson City, Appellant. (Proceeding No. 1.) In the Matter of the Arbitration between Village of Johnson City, Appellant, and Johnson City Firefighters Association, Local 921 IAFF, Respondent. (Proceeding No. 2.)
    Argued October 12, 2011;
    decided November 17, 2011

      POINTS OF COUNSEL

      Coughlin & Gerhart, L.L.P., Binghamton (Paul J. Sweeney, Anna Dmitriev and Katelyn R. Dumont of counsel), for appellant.
    I. The Third Department erred by creating a novel and incorrect legal standard when it held that a job security clause was “not too ambiguous” to be enforced, thereby ignoring the stricter legal standard previously articulated by this Court. (Yonkers School Crossing Guard, Union of Westchester Ch., CSEA v City of Yonkers, 39 NY2d 964; Matter of Board of Educ. of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 40 NY2d 268; Matter of Burke v Bowen, 40 NY2d 264; Matter of Susquehanna Val. Cent. School Dist. at Conklin [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614; Wolkstein v Beth Israel Med. Ctr., 103 Misc 2d 1095; Fishgold v Sullivan Dry dock & Repair Corp., 328 US 275; CBS Inc. v International Photographers of the Motion Picture Indus., Local 644, 603 F2d 1061; Greenfield v Philles Records, 98 NY2d 562; Pozament Corp. v AES Westover, LLC, 27 AD3d 1000; Graev v Graev, 11 NY3d 262.) II. The Third Department’s “not too ambiguous” standard created an irreconcilable fissure within the judicial departments. (Board of Educ. of Cent. School Dist. No. 1 of Towns of Niagara, Wheatfield, Lewiston & Cambria v Niagara Wheatfield Teachers Assn., 54 AD2d 281; Board of Educ. of New fane Cent. School Dist. No. 1 of Towns of New fane, Lockport, Cambria & Wilson v Newfane Teachers Assn., 54 AD2d 1119; Osoba v City of Beacon, 57 AD2d 588; Matter of Board of Coop. Educ. Servs. of Nassau County v Central Council of Teachers, 59 AD2d 942; Matter of Meaney v City of New Rochelle, 58 AD2d 605; Matter of Westchester Ch. Civ. Serv. Empls. Assn., Local 860 v Village

      of Pelham, 71 AD2d 1027.) III. The Third Department violated public policy when it compelled the arbitration of a job security clause which did not contain an “explicit, unambiguous and comprehensive” waiver of the municipality’s right to eliminate positions. (Sheedy v Pataki, 236 AD2d 92; Nauta v City of Poughkeepsie, 610 F Supp 980; Matter of Kent v Town of Niskayuna, 244 AD2d 829; Matter of Piekielniak v Axelrod, 92 AD2d 968; Abbott v City of Poughkeepsie, 98 Misc 2d 601; Matter of Board of Educ. of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 40 NY2d 268; Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513.)

      Hinman, Howard & Kattell, LLP, Binghamton (Paul T. Sheppard of counsel), for respondents.
    I. The issue in dispute is subject to arbitration. (Matter of Board of Educ. of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 40 NY2d 268; Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513; Matter of Burke v Bowen, 40 NY2d 264; North Syracuse Cent. School Dist. v North Syracuse Educ. Assn., 45 NY2d 195; Piro v Bowen, 76 AD2d 392; Matter of City of Utica [Zumpano], 91 NY2d 964; Matter of Board of Educ., W. Babylon Union Free School Dist. v West Babylon Teachers Assn., 72 AD2d 766, 52 NY2d 1002; Yonkers School Crossing Guard Union of Westchester Ch., CSEA v City of Yonkers, 39 NY2d 964; Matter of Madison-Oneida Bd. of Coop. Educ. Servs. v Mills, 4 NY3d 51; Fishgold v Sullivan Drydock & Repair Corp., 328 US 275.) II. The parties agreed to arbitrate the dispute. (Matter of City of Yonkers [Cassidy], 58 AD2d 627, 44 NY2d 784; New York Inst. of Technology v Council of Metropolitan & Old Westbury Chs., Am. Assn. of Univ. Professors, 47 AD2d 659; Sisters of St. John the Baptist, Providence Rest Convent v Geraghty Constructor, 67 NY2d 997; Matter of Amalgamated Tr. Union, Local Div. 1321 [Capital Dist. Tr. Sys., No. One, Capital Dist. Transp. Dist], 300 AD2d 809; Matter of County of Albany [AFSCME, Council 82], 114 AD2d 732; Matter of Capital Dist. Transp. Auth. [Planz], 68 AD3d 1499; Matter of City of Ithaca [Ithaca Paid Fire Fighters Assn., IAFF, Local 737], 29 AD3d 1129; Matter of City of Binghamton v Binghamton Civ. Serv. Forum, 79 AD2d 729; Matter of County of Sullivan [Sullivan County Empls. Assn.], 235 AD2d 748.)

      Nancy E. Hoffman, Albany, and Kara L. Hilburger for Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, amicus curiae.
    The lower court properly held that the “no-layoff’ provision in the collective bargaining agreement is a valid job security provision and is thus arbitrable under the broad arbitration clause under the collective bargaining agreement. (Matter of Board of Educ. of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 40 NY2d 268; Matter of Professional, Clerical, Tech. Empls. Assn. [Buffalo Bd. of Educ.], 90 NY2d 364; Matter of City of Long Beach v Civil Serv. Empls. Assn., Inc.—Long Beach Unit, 8 NY3d 465; Matter of City of Johns-town [Johnstown Police Benevolent Assn.], 99 NY2d 273; Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 411; Matter of Burke v Bowen, 40 NY2d 264; Yonkers School Crossing Guard Union of Westchester Ch., CSEA v City of Yonkers, 39 NY2d 964; Matter of Houghton v Schuler, 61 AD2d 1104; County of Broome v Deputy Sheriffs Benevolent Assn. of Broome County, 57 AD2d 496; Matter of Susquehanna Val. Cent. School Dist. at Conklin [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614.)

      Hinman Straub P.C., Albany (John R. Saccocio and John F. Black of counsel),
    for New York State Professional Fire Fighters Association, I.A.F.F., AFL-CIO, amicus curiae. The Appellate Division’s reasoning in this case is consistent with this Court’s decision in Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807 (8 NY3d 513 [2007]) and respects the strong public policy of New York State, which favors collective bargaining and arbitration. (Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73; Matter of City of Schenectady v New York State Pub. Empl. Relations Bd., 85 NY2d 480; Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660; Matter of Professional, Clerical, Tech. Empls. Assn. [Buffalo Bd. of Educ.], 90 NY2d 364; Matter of New York City Dept. of Sanitation v MacDonald, 87 NY2d 650; Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72; Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, AFL-CIO, 99 NY2d 1.)
   OPINION OF THE COURT

Pigott, J.

The issue on appeal is whether the parties are required to arbitrate the meaning of a “no-layoff’ clause in their collective bargaining agreement. Given the particular contract in this case, we conclude that they are not.

I

On May 22, 2008, the Village of Johnson City and Johnson City Professional Fire Fighters, Local 921 IAFF executed a collective bargaining agreement (CBA) for a term running from June 1, 2006 through May 31, 2011. The CBA contains a no-layoff clause that states, in full: “A. The Village shall not lay-off any member of the bargaining unit during the term of this contract. B. The Village shall not be required to ‘back fill’ hire additional members to meet staffing level of expired agreement.” The parties agreed that disputes concerning the interpretation of this clause, and any other provision of the CBA, should be resolved pursuant to a series of steps, culminating in arbitration before the Public Employment Relations Board if the parties were to reach a stalemate.

On May 12, 2009, the Village voted to abolish various positions within the government, including six firefighter positions, citing budgetary necessity. Pointing to the no-layoff clause, the Union filed a grievance with the Village, which was denied. The Union then served the Village with a notice of its intent to arbitrate. Both parties then sought relief in Supreme Court, the Union pursuant to a CPLR article 75 proceeding to enjoin the Village from terminating the six firefighters pending a determination through arbitration. Simultaneously, the Village brought a proceeding to stay any arbitration.

Supreme Court denied the Village’s application, and granted the Union’s cross application to compel arbitration. The Appellate Division affirmed in both cases, holding that the no-layoff clause was not subject to any prohibition against arbitration and that, given the CBA’s broad grievance and arbitration provision, the issue was arbitrable (72 AD3d 1235, 1237-1238 [3d Dept 2010]). We granted the Village leave to appeal (15 NY3d 710 [2010]) and now reverse.

II

The Village contends that the termination of the six firefighters does not fall within the no-layoff clause and therefore is not arbitrable under the contract. We agree. Not all job security clauses are valid and enforceable, nor are they “valid and enforceable under all circumstances” (Matter of Board of Educ. of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 40 NY2d 268, 275 [1976]). This Court has long held that a purported job security provision does not violate public policy, and therefore is valid and enforceable, only if the provision is “explicit,” the CBA extends for a “reasonable period of time,” and the CBA “was not negotiated in a period of a legislatively declared financial emergency between parties of unequal bargaining power” (Matter of Burke v Bowen, 40 NY2d 264, 266, 267 [1976] [upholding as valid and enforceable a “job security” clause that provided for a minimum number of firefighters for the CBA’s term and “that in no event shall the presently agreed upon minimum be readjusted downward”]). A purported “job security” clause that is not explicit in its terms is violative of public policy, rendering it invalid and unenforceable.

In Yonkers Fedn. of Teachers, this Court found arbitrable a “job security” clause that stated that “[d]uring the life of this contract no person in this bargaining unit shall be terminated due to budgetary reasons or abolition of programs but only for unsatisfactory job performance and provided for under the Tenure Law,” holding that the “[m]ost important” thing about the clause’s language was that it was “explicit in its protection of the [workers] from abolition of their positions due to budgetary stringencies” (40 NY2d at 272, 275-276 [emphasis supplied]).

In contrast, in Yonkers School Crossing Guard Union of Westchester Ch., CSEA v City of Yonkers (39 NY2d 964, 965 [1976] [Crossing Guard Union]), we concluded that the CBA language “Present members may be removed for cause but will not be removed as a result of Post elimination” did not constitute a “job security” clause in the manner of the clauses we examined in Burke and Yonkers Fedn. of Teachers, holding that the clauses in the latter two cases “were explicit, unambiguous and comprehensive,” while the one in Crossing Guard Union was ambiguous.

Contrary to the Union’s contention, the no-layoff clause in this CBA is not arbitrable because it is not explicit, unambiguous and comprehensive. From a public policy standpoint, our requirement that “job security” clauses meet this stringent test derives from the notion that before a municipality bargains away its right to eliminate positions or terminate or lay off workers for budgetary, economic or other reasons, the parties must explicitly agree that the municipality is doing so and the scope of the provision must evidence that intent. Absent compliance with these requirements, a municipality’s budgetary decisions will be routinely challenged by employees, and its ability to abolish positions or terminate workers will be subject to the whim of arbitrators.

The pertinent portion of the no-layoff clause here states that the “Village shall not lay-off any member of the bargaining unit during the term of this contract” but this language, in and of itself, does not explicitly prohibit the Village from abolishing firefighter positions out of budgetary necessity (cf. Yonkers Fedn. of Teachers, 40 NY2d at 275-276). Unlike the clause in Yonkers Fedn. of Teachers, the clause here does not explicitly protect the firefighters from the abolition of their positions due to economic and budgetary stringencies. That is not to say that the parties could not have bargained for such a broad clause, only that it is unclear on its face whether they did so at all, which means that the clause is hardly unambiguous (see Crossing Guard Union, 39 NY2d at 965).

The term “layoff’ is undefined in the CBA, and is open to different and reasonable interpretations. Indeed, the parties’ disagreement over whether the term “layoff’ constitutes a permanent or nonpermanent job loss, and whether the Village’s abolition of the firefighter positions constituted a layoff, underscores its ambiguity. Moreover, the clause does not comprehensively prohibit the Village from abolishing firefighter positions, and, given its narrow and limited language, it cannot be construed as such. Had the Union desired that its members be protected from the elimination of firefighter positions, it could have bargained for such protections.

Simply put, because the clause is not explicit, unambiguous and comprehensive, there is nothing for the Union to grieve or for an arbitrator to decide. Having concluded that this dispute is not arbitrable for reasons of public policy, we need not reach the issue of whether the parties agreed to arbitrate.

Accordingly, the order of the Appellate Division should be reversed, with costs, the Village’s application to stay the arbitration should be granted, and the Union’s application to compel arbitration should be denied.

Ciparick, J. (dissenting).

Because I believe public policy does not prohibit the arbitration of the “no-layoff’ clause in the collective bargaining agreement (CBA) governing the relationship of the parties in this case, and because the majority opinion departs from this Court’s commitment to the furtherance of arbitration as a preferred means of resolving public sector labor disputes, I respectfully dissent.

Under the Taylor Law, public sector parties are empowered to arbitrate labor relations disputes arising from a CBA (see Civil Service Law § 204; see also Matter of Board of Educ. of Water-town City School Dist. [Watertown Educ. Assn.], 93 NY2d 132, 137 [1999] [Watertown]). The law embodies the Legislature’s explicit policy of encouraging arbitration “as a means of promoting harmonious relations between governmental employers and their employees, and preventing labor strife endangering uninterrupted governmental operations” (Matter of New York City Tr. Auth. v Transport Workers Union of Am.., Local 100, AFL-CIO, 99 NY2d 1, 7 [2002] [Transport Workers]). Still, not all disputes are arbitrable (see Watertown, 93 NY2d at 137-139). Under a two-prong test, courts must:

“first ask whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance. This is the ‘may-they - arbitrate’ prong. If there is no prohibition against arbitrating, we then examine the CBA to determine if the parties have agreed to arbitrate the dispute at issue. This is the ‘did-they-agree-to arbitrate prong’ ” (Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273, 278 [2002] [citations omitted]).

“[J]udicial intervention on public policy grounds,” however, “constitutes a narrow exception to the otherwise broad power of parties to agree to arbitrate” (Transport Workers, 99 NY2d at 6-7) and restraint is especially appropriate in the context of public employment (see id. at 7).

In Matter of Board of Educ. of Yonkers City School Dist. v Yonkers Fedn. of Teachers (40 NY2d 268 [1976]), we held that “[a] provision in a [CBA] guaranteeing public employees job security for a reasonable period of time is not prohibited by any statute or controlling decisional law and is not contrary to public policy” (id. at 271). We stated that “[a] job security provision insures that, at least for the duration of the agreement, the employee need not fear being put out of a job” (id. at 275). We recognized that, indeed, the “absence of [such] fear may be critical to the maintenance and efficiency of public employment, just as the fear of inability to meet its debts may destroy the credit of the municipality” (id.). In deciding Yonkers Fedn. of Teachers and two related opinions issued with it, Matter of Burke v Bowen (40 NY2d 264 [1976]) and Yonkers School Crossing Guard Union of Westchester Ch., CSEA v City of Yonkers (39 NY2d 964 [1976] [Crossing Guard Union]), we established the principle that an arbitrable job security clause is one that is explicit, unambiguous and comprehensive.

Here, the no-layoff clause in the parties’ CBA states in explicit terms that the “Village shall not lay-off any member of the bargaining unit during the term of this contract.” Though the majority finds otherwise (see majority op at 38), a plain reading of that provision indicates that the Union negotiated to ensure that its constituents need not fear being put out of their firefighting jobs during the life of the CBA. At a time when the term “layoff’ pervades the public dialogue, typically signifying the kind of large scale public and private workforce reductions that have characterized recent economic crises, it is reasonable to conclude that the parties employed that term to succinctly but thoroughly address the threat of job insecurity. Regardless, then, of whether “layoff,” pertained to a temporary period of unemployment or a permanent job cut—an issue of interpretation, which should be decided by an arbitrator—the no-layoff clause at issue here should be deemed an explicit, unambiguous and comprehensive job security provision.

Furthermore, the provision extended for a reasonable time— approximately three years—and “was not negotiated in a period of a legislatively declared financial emergency between parties of unequal bargaining power” (Matter of Burke, 40 NY2d at 267). Despite the majority’s suggestion to the contrary (see majority op at 38), a job security clause need not specifically reference protection against reductions due to fiscal strain to be enforceable (see Matter of Burke, 40 NY2d at 267). Thus, permitting the parties in this case to submit their dispute to arbitration would not violate public policy.

Even assuming, arguendo, that the provision at issue is not explicit, unambiguous and comprehensive, as we required over 30 years ago in Crossing Guard Union (see 39 NY2d at 965), this Court’s commitment, through a “policy of noninterference,” to “further[ing] . . . the laudable purposes served by permitting consenting parties to submit controversies to arbitration” (Matter of Sprinzen [Nomberg], 46 NY2d 623, 629 [1979]) may warrant a more flexible approach. We have previously recognized that public policy determinations do not lend themselves to the kind of bright-line rule to which the majority adheres. As we said in Matter of Sprinzen-.

“[Controversies involving questions of public policy can rarely, if ever, be resolved by the blind application of sedentary legal principles. The very nature of the concept of public policy itself militates against any attempt to define its ingredients in a manner which would allow one to become complacent in the thought that those precepts which society so steadfastly embraces today will continue to serve as the foundation upon which society will function tomorrow. Public policy, like society, is continually evolving and those entrusted with its implementation must respond to its everchanging demands” (id. at 628).

Those demands require us now to assess the reasonableness of a bargained-for job security provision not in a vacuum but with an eye toward the social and economic realities in which the parties who are subject to the CBA live and operate. To be sure, municipalities, just like individuals, are straining under budgetary shortfalls to do more with less. But “[a] job security clause is useless if the public employer is free to disregard it when it is first needed” (Yonkers Fedn. of Teachers, 40 NY2d at 275). That a seemingly straightforward provision like the one at issue here can be so rendered threatens to undermine confidence in the collective bargaining process. This result, I believe, is contrary to the spirit and purpose of the Taylor Law (see Civil Service Law § 200) and, therefore, violates public policy.

Having determined that there is no prohibition against arbitration of the no-layoff clause, I turn to the second question of whether the parties agreed to arbitrate the instant dispute. The plain language of the CBA provides that either party may take a dispute “involving the interpretation or application of any provisions of [the CBA]” to arbitration before the Public Employment Relations Board. As the Union’s grievance involves the interpretation and application of the no-layoff clause in the CBA, the Appellate Division correctly concluded that the parties reserved such matters for an arbitrator (see 72 AD3d 1235, 1238 [2010]). Thus, I would affirm the order of the Appellate Division.

Judges Graffeo, Read and Smith concur with Judge Pigott; Judge Ciparick dissents and votes to affirm in a separate opinion in which Chief Judge Lippman and Judge Jones concur.

Order reversed, etc.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    [958 NE2d 1194, 935 NYS2d 279]
    In the Matter of Schenectady County Society for the Prevention of Cruelty to Animals, Inc., Respondent, v Richard P. Mills, as Commissioner of Education of the State of New York, Appellant.
    Argued September 13, 2011;
    decided October 25, 2011

      POINTS OF COUNSEL

      Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh, Barbara D. Underwood and Andrew D. Bing of counsel), for appellant.
    I. The disclosure of the veterinary licensees’ home addresses constitutes an unwarranted invasion of personal privacy. (Matter of Data Tree, LLC v Romaine, 9 NY3d 454; Matter of Hanig v State of N.Y. Dept. of Motor Vehs., 79 NY2d 106; Matter of Federation of N.Y. State Rifle & Pistol Clubs v New York City Police Dept., 73 NY2d 92; Matter of New York Times Co. v City of N.Y. Fire Dept., 4 NY3d 477; Matter of Edwards v New York State Police, 44 AD3d 1216; Matter of Beyah v Goord, 309 AD2d 1049; Matter of Dobranski v Houper, 154 AD2d 736; Matter of Pasik v State Bd. of Law Examiners, 114 Misc 2d 397; Matter of Empire Realty Corp. v New York State Div. of Lottery, 230 AD2d 270; Department of Defense v FLRA, 510 US 487.) II. This Court should remit the proceeding to Supreme Court to resolve the question of fact regarding the nature of the licensees’ addresses. (Matter of Hanig v State of N.Y. Dept. of Motor Vehs., 79 NY2d 106; Matter of Data Tree, LLC v Romaine, 9 NY3d 454; Matter of Siegel, Fenchel & Peddy v Central Pine Barrens Joint Planning & Policy Commn., 251 AD2d 670, 93 NY2d 804; Matter of New York State Rifle & Pistol Assn., Inc. v Kelly, 55 AD3d 222; Matter of Battaglia v Schuler, 60 AD2d 759; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395.)

      Tully Rinckey, PLLC, Albany (Mathew B. Tully, Greg T Rinckey, Steven L. Herrick, Constantine F. DeStefano, Scott T Dillon, Andrew L. McNamara and Michael W. Macomber of counsel), for respondent.
    I. The present appeal is not purely a question of law and as such, is not within the scope of review of the New York State Court of Appeals under CPLR 5601 (a). (Simon v Electrospace Corp., 28 NY2d 136; Matter of Kelly, 285 NY 139; Suria v Shiffman, 67 NY2d 87; Matter of Wilson v McGlinchey, 2 NY3d 375; Matter of Jaclyn P, 86 NY2d 875; Matter of Hime Y., 54 NY2d 282; Cohen v Hallmark Cards, 45 NY2d 493; Heary Bros. Lightning Protection Co., Inc. v Intertek Testing Servs., N.A., Inc., 4 NY3d 615; Matter of Peter G, 6 AD3d 201, 3 NY3d 655; Matter of Daniel H., 15 NY3d 883.) II. Disclosure of the veterinarian and veterinary technicians licensees’ registered street addresses does not constitute an unwarranted invasion of personal privacy as the agency did not meet its burden of proof to show that the requested information falls within an exemption to the Freedom of Information Law. (Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562; Matter of Fink v Lefkowitz, 47 NY2d 567; Matter of Carnevale v City of Albany, 68 AD3d 1290; Matter of New York Times Co. v City of N.Y. Fire Dept., 4 NY3d 477; Matter of Edwards v New York State Police, 44 AD3d 1216; Matter of Data Tree, LLC v Romaine, 9 NY3d 454; Matter of M. Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75; Matter of Westchester Rockland Newspapers v Kimball, 50 NY2d 575; Matter of Hanig v State of N.Y. Dept. of Motor Vehs., 79 NY2d 106; Matter of Federation of N.Y. State Rifle & Pistol Clubs v New York City Police Dept., 73 NY2d 92.) III. The Appellate Division was correct in holding the agency did not meet its burden of proof and ordering the disclosure of the addresses requested by the Schenectady County Society for the Prevention of Cruelty to Animals, Inc. (Matter of Data Tree, LLC v Romaine, 9 NY3d 454; Matter of Hanig v State of N.Y. Dept. of Motor Vehs., 79 NY2d 106.) IV Disclosure of the requested addresses, even if residential in nature, would comport with the precedent in this state set by state laws and the Appellate Division. (Matter of Carnevale v City of Albany, 68 AD3d 1290; Matter of Buffalo News v Buffalo Mun. Hous. Auth., 163 AD2d 830; Cornell Univ. v City of N.Y. Police Dept., 153 AD2d 515, 75 NY2d 707; Matter of New York Teachers Pension Assn. v Teachers’ Retirement Sys. of City of N.Y., 71 AD2d 250.)
   OPINION OF THE COURT

Smith, J.

We hold that an agency responding to a demand under the Freedom of Information Law (FOIL) may not withhold a record solely because some of the information in that record may be exempt from disclosure. Where it can do so without unreasonable difficulty, the agency must redact the record to take out the exempt information.

Petitioner sent an e-mail to the Education Department, asking for the names and addresses of veterinarians and veterinary technicians licensed by the Department in Schenectady County. The Department replied that it would provide a list of names, and the city and state portions of the addresses, but would not provide street addresses because “[i]t is not public information for us to provide home addresses for a licensed professional and thats [szc] what we have on file.” Petitioner responded: “What about business address?,” and the Department replied: “No[t] everyone has provided us with a business address.”

Petitioner then formally requested the list of names and addresses under FOIL. The Department again offered to provide names and cities, but repeated its refusal to provide street addresses, explaining: “As our computerized files are currently configured, we are unable to distinguish a licensee’s business address from a residential address.” After an unsuccessful administrative appeal, petitioner began this proceeding to require that the list be produced. Petitioner specifically sought only “a photocopy of the requested list with names of licensed professionals and their business addresses.”

Supreme Court dismissed the petition. The Appellate Division reversed, with two Justices dissenting, and granted the petition (Matter of Schenectady County Socy. for the Prevention of Cruelty to Animals, Inc. v Mills, 74 AD3d 1417 [3d Dept 2010]). The Department appeals as of right, pursuant to CPLR 5601 (a), and we affirm.

The Department argues that disclosure of licensees’ home addresses “would constitute an unwarranted invasion of personal privacy” and so is not required by FOIL (Public Officers Law § 87 [2] [b]; § 89 [2], [2-a]). But we do not need to address this claim, because petitioner is not seeking home addresses, only business addresses, and the Department makes no claim that the business addresses are private.

It seems obvious to us that, if the Department does not want to supply home addresses, it should simply delete them from the list. It says that its computer database does not distinguish between home and business addresses, but it does not claim that it would be hard to find out, by communicating with the licensees, which addresses are homes and which are businesses. This should not be a burdensome task, because the number of licensed veterinarians and veterinary technicians in Schenectady County is unlikely to be very large; it was represented at oral argument that the number is 72.

It is true that FOIL generally does not require an agency to create a new record (Public Officers Law § 89 [3] [a] [“Nothing in this article shall be construed to require any entity to prepare any record not possessed or maintained by such entity” with specified exceptions]). But there is a difference between creating a new record and redacting an existing one. Courts deciding FOIL issues often order redaction when a record contains both exempt and nonexempt information (e.g. Matter of Data Tree, LLC v Romaine, 9 NY3d 454, 464 [2007] [noting that “even when a document subject to FOIL contains . . . private, protected information, agencies may be required to prepare a redacted version with the exempt material removed” (citing Public Officers Law § 89 [2] [c] [i])]; Matter of New York Times Co. v City of N.Y. Fire Dept., 4 NY3d 477, 482-483 [2005]; Matter of Scott, Sardano & Pomeranz v Records Access Officer of City of Syracuse, 65 NY2d 294 [1985]). In responding to petitioner’s FOIL request, the Department had the choice of producing the existing record in full or removing the information that it did not want to produce and that petitioner did not demand. It cannot refuse to produce the whole record simply because some of it may be exempt from disclosure.

We are at a loss to understand why this case has been litigated. It seems that an agency sensitive to its FOIL obligations could have furnished petitioner a redacted list with a few hours’ effort, and at negligible cost. Instead, lawyers for both sides have submitted briefs and argued the case in three courts, demanding the attention of 13 judges, generating four judicial opinions and resulting in a delay in disclosure of almost four years. It is our hope that the Department, and other agencies of government, will generally comply with their FOIL obligations in a more efficient way.

Accordingly, the order of the Appellate Division should be affirmed with costs.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Pigott and Jones concur.

Order affirmed, with costs.


author: Ciparick, J.

text:
    [959 NE2d 1011, 936 NYS2d 63]
    In the Matter of Randy Raynor, Claimant, v Landmark Chrysler et al., Appellants, et al., Respondent. Workers’ Compensation Board, Respondent.
    Argued October 18, 2011;
    decided November 15, 2011

      POINTS OF COUNSEL

      Hamberger & Weiss, Rochester (Karen Darling and Ronald E. Weiss of counsel), for appellants.
    I. The 2007 amendment to Workers’ Compensation Law § 27 (2) providing mandatory aggregate trust fund deposits in permanent partial disability claims does not apply retroactively to dates of accident or disablement before March 13, 2007. (Matter of Mace v Owl Wire & Cable Co., 284 AD2d 672; Majewski v Broadalbin-Perth Cent. School Dist, 91 NY2d 577; Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205; Jacobus v Colgate, 217 NY 235; Landgraf v USI Film Products, 511 US 244; Becker v Huss Co., 43 NY2d 527; Matter of Thomas v Bethlehem Steel Corp., 95 AD2d 118, 63 NY2d 150; Matter of Beary v City of Rye, 44 NY2d 398.) II. The decision directing payment to the Aggregate Trust Fund is improper since future benefits to a partially disabled claimant are speculative. (Burns v Varriale, 9 NY3d 207.) III. The Appellate Division’s application of amended Workers’ Compensation Law § 27 (2) is unconstitutional. (Matter of Brophy v Prudential Ins. Co. of Am., 241 App Div 306; Connolly

      v Pension Benefit Guaranty Corporation, 475 US 211; American Mfrs. Mut. Ins. Co. v Sullivan, 526 US 40; Alliance of Am. Insurers v Chu, 77 NY2d 573; Allied Structural Steel Co. v Spannaus, 438 US 234; Matter of Turdo v Dellicato Vineyards, 73 AD3d 143; Methodist Hosp. of Brooklyn v State Ins. Fund, 102 AD2d 367.)

      Eric T. Schneiderman, Attorney General, New York City (Steven C. Wu, Barbara D. Underwood and Benjamin N. Gutman of counsel), for Workers’ Compensation Board, respondent.
    I. The Workers’ Compensation Board properly ordered appellants to make aggregate trust fund deposits as required by law. (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; United States v Gonzales, 520 US 1; Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662; Keene Corp. v United States, 508 US 200; Lawrence Constr. Corp. v State of New York, 293 NY 634; People v Ryan, 82 NY2d 497; Landgrafv USI Film Products, 511 US 244; Polone v Commissioner of Internal Revenue, 505 F3d 966; Matter of Schmidt v Wolf Contr. Co., Inc., 269 App Div 201, 295 NY 748; Brothers v Florence, 95 NY2d 290.) II. Amended Workers’ Compensation Law § 27 (2) is constitutional. (Connolly v Pension Benefit Guaranty Corporation, 475 US 211; Minneapolis Taxi Owners Coalition, Inc. v City of Minneapolis, 572 F3d 502; Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510; Alliance of Am. Insurers v Chu, 77 NY2d 573; Energy Reserves Group, Inc. v Kansas Power & Light Co., 459 US 400; General Motors Corp. v Romein, 503 US 181; CFCU Community Credit Union v Hayward, 552 F3d 253; Allied Structural Steel Co. v Spannaus, 438 US 234; RUI One Corp. v City of Berkeley, 371 F3d 1137; South Term. Corp. v Environmental Protection Agency, 504 F2d 646.) III. The Workers’ Compensation Board’s calculation of an award’s present value in compliance with the Workers’ Compensation Law’s express requirements is neither arbitrary nor capricious. (Matter of Baust v Levitt, 50 AD2d 627; Burns v Varriale, 9 NY3d 207; Matter of Kelly v State Ins. Fund, 60 NY2d 131; Becker v Huss Co., 43 NY2d 527.)
   OPINION OF THE COURT

Ciparick, J.

In this dispute between an employee (claimant) and his employer and its workers’ compensation insurance carrier (the carrier), we are asked to interpret Workers’ Compensation Law § 27 (2) and § 15 (3) (w), amended by the Laws of 2007, as they relate to an award for a non-schedule permanent partial disability made after the effective date for an injury sustained years earlier. We conclude that the Workers’ Compensation Board (the Board) and the Appellate Division properly construed the amended statute by requiring the carrier to deposit a lump-sum amount into the Aggregate Trust Fund (ATF) representing the present value of the award.

I

On March 13, 2007, a comprehensive reform of the Workers’ Compensation Law was enacted as a result of years of negotiations by the Governor’s Office, the Legislature, the Board and representatives of business and labor. The bill established reforms to the law, carefully negotiated to provide benefits both to workers, businesses and to the insurance companies through a series of trade-offs including:

“(1) increasing maximum and minimum benefits for injured workers and indexing the maximum to New York’s average weekly wage; (2) dramatically reducing costs in the workers’ compensation system, making hundreds of millions of dollars available annually to be translated into premium reductions; (3) establishing enhanced measures to combat workers’ compensation fraud; (4) replacing the Special Disability Fund with enhanced protections for injured veterans; (5) preventing insurance carriers from transferring costs to New York employers by closing the Special Disability Fund to new claims; and (6) creating a financing mechanism to allow for settlement of the Fund’s existing liabilities” (Governor’s Program Bill Mem, Bill Jacket, L 2007, ch 6, at 5, reprinted in 2007 NY Legis Ann, at 5).

New York State’s Workers’ Compensation Law requires that employers pay benefits to replace lost wages for their employees who become injured during “the course of the employment without regard to fault as a cause of the injury” (Workers’ Compensation Law § 10 [1]). An employer must secure the compensation for his employees by obtaining coverage from the New York State Insurance Fund, purchasing coverage from an approved private insurance carrier or obtaining approval from the Board to self-insure (see Workers’ Compensation Law § 50). This appeal requires us to address the amendments to Workers’ Compensation Law § 27 (2) and § 15 (3) (w) as they pertain to insurance coverage by private insurance carriers only.

The amendment to Workers’ Compensation Law § 27 (2) mandates that private insurance carriers make a deposit into the ATF of the present value of awards made pursuant to Workers’ Compensation Law § 15 (3) (w) (see L 2007, ch 6, § 46). The ATF was established in 1920 and incorporated into Workers’ Compensation Law in 1922. Since 1935, private insurance carriers have been required by Workers’ Compensation Law § 27 to deposit the present value into the ATF of the estimated lifetime payout of long-term indemnity awards for total permanent disabilities and for certain “schedule” awards for permanent partial disabilities. Prior to 2007, the Board, at its discretion, could also order a private insurance company to deposit into the ATF the present value of a non-schedule permanent partial disability indemnity award (see former Workers’ Compensation Law § 27 [2]). The 2007 amendment to Workers’ Compensation Law § 27 (2) added language to the existing statute now making such payments for non-schedule awards mandatory (L 2007, ch 6, § 46).

The Legislature also amended Workers’ Compensation Law § 15 (3) (w) in 2007. The amendment, in a concession to insurance carriers, capped the number of weeks that a person is eligible to receive benefits for a non-schedule permanent partial disability (see L 2007, ch 6, § 4). Prior to the amendment, a permanently partially disabled worker was able to receive benefits for life (see former Workers’ Compensation Law § 15 [3] [w]). The amendment to Workers’ Compensation Law § 27 (2) took effect 120 days after the enactment or on July 11, 2007 (see L 2007, ch 6, § 82 [e]), while the amendment to Workers’ Compensation Law § 15 (3) took effect immediately upon the signing of the bill on March 13, 2007 (see L 2007, ch 6, § 82 [a]). Accordingly, as of July 11, 2007, benefits awarded for accidents that occurred prior to March 13, 2007 remained uncapped, while benefits awarded for accidents occurring on or after March 13, 2007 were now subject to a newly imposed cap pursuant to amended section 15 (3) (w).

With this framework in place, we now turn to the facts of this case. Claimant Randy Raynor injured his lower back while working for Landmark Chrysler on December 14, 2004. On June 25, 2008, over three years after the initial injury, a workers’ compensation law judge determined that Raynor was permanently partially disabled and directed Landmark Chrysler’s insurance carrier, Erie Insurance Company of New York, to deposit the present value of all unpaid benefits—$196,865.73— into the ATE The carrier submitted an application for Board review arguing that mandatory deposits of the present value of future benefits into the ATE as required by amended section 27 (2) should only apply to awards made under the amended section 15 (3) (w) because requiring such a deposit for the uncapped, pre-amended section 15 (3) (w) awards is impermissibly retroactive. The carrier also contended that the calculation of such an award is speculative.

On February 6, 2009, a three Board Member panel, with one dissenting vote, upheld the determination that the present value of the uncapped award was to be deposited into the ATE The Board held that a plain reading of the amended statutes required such a result and the calculation of the award was not speculative. The dissenter adopted the arguments advanced by the carrier. As of right, pursuant to the one-member dissent, the carrier submitted an application for a full Board review. In addition to the arguments brought before the three-member panel, the carrier additionally raised a number of constitutional arguments to the full Board.

On May 7, 2009, the full Board affirmed the decision of the workers’ compensation law judge, holding that the plain unambiguous language of the statute required that the carrier pay the present value of the uncapped award, in a lump sum, into the ATE, and that the statute was not impermissibly retroactive. It further concluded that the Board’s computation of the present value of claimant’s award was not speculative or arbitrary and capricious. It finally opined that the statute did not violate any of the carrier’s constitutional rights. The Appellate Division, in a joint opinion including two other claimants, affirmed the Board’s decision (see Matter of Collins v Dukes Plumbing & Sewer Serv., Inc., 75 AD3d 697 [3d Dept 2010]). We granted the carrier leave to appeal (15 NY3d 713 [2010]) and now affirm.

IL

“As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof’ (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]). Additionally, “[w]here a statute describes the particular situations in which it is to apply and no qualifying exception is added, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded” (Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662, 665 [1988] [internal quotation marks omitted]).

The carrier urges us to allow pre-March 13, 2007, uncapped benefit awards to be exempt from the section 27 (2) deposit requirement, arguing that because the Legislature amended Workers’ Compensation Law § 27 (2) and § 15 (3) (w) at the same time, the only permissible reading of the two statutes is that the deposit of the present value of future awards into the ATF was only intended to apply to the newly enacted capped awards pursuant to the amended section 15 (3) (w) and that the deposit requirements should be limited to workers injured after the effective date of the amendment. The carrier contends that any other interpretation is inherently unfair and burdens private insurance carriers with unanticipated expenses.

The amended Workers’ Compensation Law § 15 (3) (w), providing for capped permanent partial disability awards, clearly “appl[ies] to accidents and dates of disablement which occur on and after” the enactment date of the bill, March 13, 2007 (L 2007, ch 6, § 82 [a] [emphasis added]). Here, the claimant’s injury occurred on December 14, 2004, before the enactment of the 2007 amendments, and thus the award was uncapped.

The added provision to the amended Workers’ Compensation Law § 27 (2) provides, “if any such award made on or after July first, two thousand seven requires payment for permanent partial disability under paragraph w of subdivision three of section fifteen . . . the board shall immediately compute the present value thereof and require payment of such amount into the [ATF].”

Thus, the Legislature specifically chose the date of the accident as the demarcation point between those claimants who qualify for the uncapped award pursuant to the pre-amended Workers’ Compensation Law § 15 (3) (w) and the capped award pursuant to the amended statute and further specifically chose the date of the award, without regard to the date of the injury, as the point where the deposit of a lump-sum payment into the ATF representing the present value of the benefits is required pursuant to Workers’ Compensation Law § 27 (2).

Moreover, since no qualifying exceptions were added, we are disinclined to read any into the statute as the carrier would have us do. Additionally, the use of the expansive word “any” in Workers’ Compensation Law § 27 (2) indicates that it was intended to apply to both pre-amendment uncapped awards as well as post-amendment capped awards pursuant to Workers’ Compensation Law § 15 (3) (w) (see State of New York v Philip Morris Inc., 8 NY3d 574, 580 [2007]). The legislation does not include the limitation as argued by the carrier. Accordingly, a plain reading of the statute confirms that a private insurance carrier is required to deposit into the ATF the present value of awards that are subject to both the pre-amended and post-amended section 15 (3) (w).

The carrier further claims that the Board and the Appellate Division are improperly applying the statute retroactively. The statute, however, only governs non-schedule permanent partial disability awards made after its passage. The fact that the award may relate to an injury that occurred prior to the enactment of the statute does not render it retroactive. “ ‘A statute is not retroactive . . . when made to apply to future transactions merely because such transactions relate to and are founded upon antecedent events’ ” (Forti v New York State Ethics Commn., 75 NY2d 596, 609 [1990], quoting McKinney’s Cons Laws of NY, Book 1, Statutes § 51, Comment, at 87). That is the case here. Thus, the carrier’s claims of inequity due to the overturning of settled expectations as the result of the amended statute is without merit as the statute neither altered the carrier’s preexisting liability nor imposed a wholly unexpected new procedure. It merely changed the time and manner of payments of non-schedule permanent partial disability awards.

Relying on Burns v Varriale (9 NY3d 207 [2007]), the carrier also argues that mandating private insurance carriers to deposit the present value of the future benefits into the ATF is arbitrary and capricious, because it is impossible to correctly ascertain the present value of such an award. This argument is unavailing. While we did, in Burns, state that “the present value of future benefits in a permanent partial disability case is not ascertainable” (id. at 217), the case concerned the calculation of a carrier’s equitable share of a claimant’s attorney’s fees and litigation costs pursuant to Workers’ Compensation Law § 29 (1) (see id. at 213-214). Pursuant to section 29 (1), that equitable apportionment is subject to the court’s discretion. Here, by contrast, there is no such discretion involved. The deposit of the present value of the future benefit is legislatively mandated by Workers’ Compensation Law § 27 (2) and the procedure for the calculation of such an award is governed by Workers’ Compensation Law § 27 (5) using specific actuarial tables. Thus, using the actuarial tables, as required by the statute, to calculate the present value of the award is not impermissibly speculative and the Board, in following the Legislature’s clear direction, did not act arbitrarily and capriciously in mandating the deposits (see Matter of Baust v Levitt, 50 AD2d 627, 628 [3d Dept 1975], Iv denied 38 NY2d 708 [1976] [complying with a statute’s directive cannot be said to be arbitrary or capricious]).

III.

The carrier also raises a number of constitutional arguments, none of which are persuasive. It contends that amended section 27 (2) violates the Takings, Contracts, Equal Protection and Due Process Clauses of the United States Constitution.

The Takings Clause prohibits the government from taking private property for public use without providing just compensation (see US Const Amend V). The amended statute, as applied, does not violate this clause. The statute neither increases the amount of compensation owed to claimant, nor does it appropriate the carrier’s assets for the use of the State (see Connolly v Pension Benefit Guaranty Corporation, 475 US 211, 225 [1986]; cf. Alliance of Am. Insurers v Chu, 77 NY2d 573, 577-578 [1991] [statute held unconstitutional because insurers had a property interest in the fund whose earnings were diverted to the State’s general fund]). Here, there is no such diversion; the mandatory deposit only reflects the present value of what is owed to an injured worker.

The amended statute similarly does not violate the Contracts Clause of the United States Constitution. The Contracts Clause prohibits states from enacting “[l]aw[s] impairing the Obligation of Contracts” (US Const, art I, § 10 [1]). Prior to the amendment of the statute the Board could, at its discretion, require a carrier to deposit the present value of the award into the ATE The amendment merely makes what was once discretionary, mandatory. There is no impairment of the insurance contract. At most, the carrier’s contract has become less profitable—not a substantial impairment (see RUI One Corp. v City of Berkeley, 371 F3d 1137, 1151 [9th Cir 2004]; South Term. Corp. v Environmental Protection Agency, 504 F2d 646, 680 [1st Cir 1974]).

The carrier’s argument that the amended statute violates its equal protection rights under the Fourteenth Amendment of the United States Constitution is equally without merit. The carrier argues that private insurers are treated differently from the State Insurance Fund and self-insurers. The basis for requiring a private insurer to deposit the present value of a future award into the ATF is to protect claimants from carrier insolvency. The same goal is achieved by the State Insurance Fund because of its status as a state agency. Self-insurers have a separate regulatory framework to safeguard against insolvency (see 12 NYCRR 315.2-315.4). Because there is a rational basis for differential treatment of separate classes of insurers, there is no violation of equal protection here (see FCC v Beach Communications, Inc., 508 US 307, 313 [1993]).

Finally, we reject the carrier’s argument that the statute violates substantive and procedural due process rights. To establish a claim for violation of substantive due process, a party “must establish a cognizable . . . vested property interest” (Bower Assoc. v Town of Pleasant Val., 2 NY3d 617, 627 [2004]) and “that the governmental action was wholly without legal justification” (id.). As noted, the statute does not deprive the carrier of property, because it does not increase the amount the carrier owes. Additionally, the carrier fails to make any showing that the statute here was without legal justification and not supported by a rational legislative purpose.

The claim of lack of procedural due process is likewise unconvincing. The carrier is accorded procedural due process at every step, as it is entitled to contest, first at a hearing before a workers’ compensation law judge, then at an appeal to the Board, and ultimately at the Appellate Division, its liability, the classification of the worker’s injuries and the amount of the award (see Workers’ Compensation Law § 23). Furthermore, carriers receive notice and an opportunity to be heard regarding all proposed settlements (see Workers’ Compensation Law § 32).

In conclusion, because the award was made after the effective date of the amendment to Workers’ Compensation Law § 27 (2), the Board properly required the carrier to make a deposit into the ATF. This amendment is neither retroactive, arbitrary and capricious nor unconstitutional. Although the carrier argues that the legislation, as enacted, is unfair and places an unanticipated financial burden on private insurance carriers, we are merely interpreting the statute by applying the rules of statutory construction. It is not our role to pass on its fairness or wisdom (see Morales v County of Nassau, 94 NY2d 218, 224 [1999]; People v Ryan, 82 NY2d 497, 502 [1993]). It is for the Legislature to limit the statute, if it so desires (see Joblon v So-low, 91 NY2d 457, 465 n 2 [1998]).

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Judges Graffeo, Read, Smith, Pigott and Jones concur; Chief Judge Lippman taking no part.

Order affirmed, with costs.

      . The purpose of the ATF is to insure and oversee regular payments of benefits of designated types of long-term indemnity awards. The ATF, in accordance with the value of the award as determined by the Board, pays the biweekly installment of compensation benefits to the claimant, thus relieving the carrier’s responsibility for paying future indemnity benefits.

      . Workers’ Compensation Law § 15 (3) (a)-(v) and (6) mandate the use of a statutory schedule specifically setting forth the amount of compensation for a permanent partial disability resulting from the total loss of an arm, leg, hand, foot, eye, etc. These are referred to as “schedule” awards. Awards for other injuries are classified as “non-schedule.”


author: Pigott, J. Smith, J. (dissenting).

text:
    [958 NE2d 1197, 935 NYS2d 281]
    In the Matter of Thomas Sheeran, Appellant, v New York State Department of Transportation et al., Respondents. In the Matter of Michelle Birnbaum, Appellant, v New York State Department of Labor et al., Respondents.
    Argued October 13, 2011;
    decided November 17, 2011

      POINTS OF COUNSEL

      Rita J Verga, Albany, and William E Seamon for appellant in the first and second above-entitled actions.
    I. The Appellate Division committed error of law in interpreting Civil Service Law § 72. (Matter of Cooperman v Commissioner, Dept. of Correctional Servs. of State of N.Y., 86 Misc 2d 610; Fuentes v Shevin, 407 US 67.) II. The Appellate Division’s interpretation deprives state employees of constitutionally required due process. (Matter of Moses v Rensselaer County, 262 AD2d 697; Laurido v Simon, 489 F Supp 1169; Fuentes v Shevin, 407 US 67; Matter of Cooperman v Commissioner, Dept. of Correctional Servs. of State of N.Y., 86 Misc 2d 610, 57 AD2d 989; Goldberg v Kelly, 397 US 254; Matter of Pastore v City of Troy, 126 Misc 2d 113.)

      Eric T. Schneiderman, Attorney General, Albany (Julie M. Sheridan, Barbara D. Underwood and Andrea Oser of counsel), for respondents in the first and second above-entitled actions.
    The plain language and legislative history of Civil Service Law §72 establish that it does not apply to an employee seeking to return to work from voluntary sick leave. II. The procedures of 4 NYCRR 21.3 (e), article 30 of the collective bargaining agreement, CPLR article 78, and Civil Service Law § 73 provided petitioners with all the process due, and the doctrine of constitutional avoidance is therefore not implicated. (Matter of Hurwitz v Perales, 81 NY2d 182; Mathews v Eldridge, 424 US 319; Matter of Prue v Hunt, 78 NY2d 364; Cafeteria & Restaurant Workers v McElroy, 367 US 886; Morrissey v Brewer, 408 US 471; Cleveland Bd. of Ed. v Loudermill, 470 US 532; Gilbert v Homar, 520 US 924; FDIC v Mallen, 486 US 230; Logan v Zimmerman Brush Co., 455 US 422; Board of Regents of State Colleges v Roth, 408 US 564.)
   OPINION OF THE COURT

Pigott, J.

The issue presented on both of these appeals is whether Civil Service Law § 72, which provides certain procedural safeguards to a public employee when placed on an involuntary leave of absence, applies to employees who are prevented from returning to work following a voluntary absence. We hold that it does.

I

Petitioner Thomas Sheeran was a civil engineer in the New York State Department of Transportation (DOT); petitioner Michelle Birnbaum was employed by the New York State Department of Labor (DOL). Both petitioners took voluntary leave due to illness and eventually sought to return to work. Each submitted the necessary certification from a treating physician attesting that he or she was fit to return to duty. DOT and DOL exercised their right pursuant to 4 NYCRR 21.3 (e) to have petitioners medically examined by a State-affiliated physician prior to returning to work. In each case, the physician found the petitioner unfit to return to duty. As a result, petitioners were placed on involuntary leave. Petitioners sought a hearing pursuant to Civil Service Law § 72. The employers denied the requests, asserting that the provisions of 4 NYCRR 21.3 and article 30 of the collective bargaining agreement (CBA) between the union and the employers were applicable to them and that section 72 was not, as it only applied to employees being removed from the work site. Petitioners were eventually terminated from employment pursuant to Civil Service Law § 73, which permits an employer to terminate employment when the employee is continuously absent from work for one year and unable to perform the duties of the position.

II

Petitioners brought these CPLR article 78 proceedings, to challenge, among other things, their placement on involuntary leave without having been provided a hearing pursuant to Civil Service Law § 72.

In separate decisions, Supreme Court granted the petitions, to the extent of annulling the determinations of DOL and DOT that denied a section 72 hearing and remanded the matters to the employers for compliance with the statute. The Appellate Division reversed and dismissed the petitions (see Matter of Sheeran v New York State Dept. of Transp., 68 AD3d 1199 [3d Dept 2009]; Matter of Birnbaum v New York State Dept. of Labor, 75 AD3d 707 [3d Dept 2010]). The appellate court reasoned that section 72, by its plain language, applies only to employees placed on involuntary leave, whereas the CBA and 4 NYCRR 21.3 apply to employees who have taken voluntary leave (Sheeran, 68 AD3d at 1203). Thus, the court concluded, the determinations of the DOT and DOL to place each of the petitioners on an involuntary leave of absence without a hearing under section 72 was “not arbitrary, capricious, irrational or contrary to law” (id.).

III

Civil Service Law § 72 (1) provides that when an employer determines that “an employee is unable to perform the duties of his or her position by reason of a disability,” the employer may require the employee to undergo a medical examination. If, after such examination, the employee is found unfit to perform the duties of the job, the employee may be placed on an involuntary leave of absence (id.). The statute requires that the employer provide the employee with written notice. The employee may, within certain time limits, object to the proposed leave and request a hearing (id.). It further provides that in the event that the employee requests a hearing, imposition of the proposed leave of absence is held in abeyance pending final determination, unless the employee’s continued presence on the job creates a potential danger (see § 72 [5]).

Starting with the language of the statute, we find no indication that the Legislature intended to make a distinction between an employee who is placed on involuntary sick leave from the job site and one that is placed on such leave from a voluntary absence. The statute simply provides that an employee “placed on leave of absence” is entitled to its procedural protections. DOL and DOT contend that the statute’s repeated reference to the involuntary leave as a “proposed” leave of absence, as well as the language requiring notice of the “proposed date on which such leave is to commence” assume that the employee is currently working. Those terms, however, simply refer to the prospective nature of the involuntary leave and nothing more.

Subdivision (5) of the statute, which permits the employer to immediately place the employee on involuntary leave when the employee poses potential danger to the work site, applies equally whether the employee is actively working or about to return. In both situations, the statute allows the employer to protect the workplace. While DOT and DOL point to rule 21.3 (e) and article 30 of the CBA as applying to the petitioners’ circumstances, neither of those provisions affords an immediate opportunity to be heard once a determination is made to place the employee on involuntary leave status. They provide an opportunity to be reexamined at a later date, and as such do not provide the procedural protections of section 72.

IV

The legislative history of the statute is in full accord with this interpretation. A Department of Civil Service memorandum in support of this legislation noted: “One of the most knotty personnel problems which plagues department and agency heads is the problem of what to do about an employee who has been absent and disabled from the performance of his duties for a prolonged period of time” (Mem of State Dept of Civil Serv, Bill Jacket, L 1983, ch 561, reprinted in 1983 McKinney’s Session Laws of NY, at 2597, 2598). Notably, there is no distinction made between an employee who has been placed on involuntary leave from a voluntary one and one forced to take an involuntary leave.

The history also reveals that the statute has a remedial purpose: to afford tenured civil servant employees with procedural protections prior to involuntary separation from service. Such remedial purpose applies equally here, where an employee is out on sick leave and then seeks to return to work, but is prohibited based on a finding that he or she is unfit. To read the statute otherwise would discourage employees from taking voluntary leave, since they would have greater rights if they remained on the job and waited to be involuntarily removed—a result the Legislature surely did not intend.

Accordingly, in both appeals, the order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court, Albany County, reinstated.

Smith, J. (dissenting).

The majority errs, I think, by giving an overbroad interpretation to a statute that is itself broader than it needs to be. A brief description of how the statute came to exist in its present form may help make this point clear.

As first enacted in 1969, Civil Service Law § 72 authorized a public employer to place an employee on medical leave of absence, and made no provision for a hearing of any kind (L 1969, ch 225). Two federal district court decisions held that the original version of the statute deprived employees of their rights to due process (Snead v Department of Social Servs. of City of NY., 355 F Supp 764 [SD NY 1973]; Laurido v Simon, 489 F Supp 1169 [SD NY 1980]). Accordingly, in 1983, the statute was amended to provide affected employees with quite elaborate procedural protections: a written statement of the reasons for a leave of absence, and an opportunity for a hearing before an independent hearing officer, at which the “[t]he employee may be represented ... by counsel or a representative of a certified or recognized employee organization and may present medical experts and other witnesses or evidence” (Civil Service Law § 72 [1]). The employee is entitled to a transcript of the hearing without charge (id.), and may appeal the hearing officer’s determination to a state or municipal civil service commission—a determination itself reviewable under CPLR article 78 (Civil Service Law § 72 [3]). These protections were evidently thought necessary to comply with the United States Constitution; the memorandum submitted by the Department of Civil Service in support of the 1983 legislation cites the Snead and Laurido cases and says: “we are proposing that the safeguards ... be added to Section 72 in order to cure any procedural due process defects which may be present” (Mem of State Dept of Civil Serv, Bill Jacket, L 1983, ch 561, at 7, reprinted in 1983 McKinney’s Session Laws of NY, at 2597, 2598).

But the belief that all this procedure was required by the Constitution proved to be mistaken. In 1985, the United States Supreme Court decided that a public employee facing termination—a more serious consequence than an involuntary leave of absence—was entitled to “some form of pretermination hearing,” but that the hearing “need not be elaborate” (Cleveland Bd. of Ed. v Loudermill, 470 US 532, 542, 545 [1985]). Under Loudermill, such an employee is entitled only “to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story”—not to an evidentiary hearing before an independent factfinder (id. at 546). In New York, under our decision in Matter of Prue v Hunt (78 NY2d 364, 369 [1991]), a public employee terminated under Civil Service Law § 73 after a year’s absence due to disability is not entitled to any “procedural formality greater than that required in Loudermill” prior to termination. The result is an anomaly: an employee who is fired under section 73 for inability to perform the duties of his or her position gets less protection than an employee placed on leave of absence for the same reason under section 72.

Today’s decision magnifies the anomaly, extending section 72 rights to employees who are not removed from the workplace by their employer, but who have removed themselves and are seeking to return. Such an extension of section 72’s protections is not compelled either by the Constitution or by common sense, and is not commanded, or even suggested, by the text of section 72.

On the contrary, section 72 was evidently written to be applicable to employees who are at work until their employer chooses to remove them. The opening words of section 72 (1) are: “When in the judgment of an appointing authority an employee is unable to perform the duties of his or her position.” How is an employer to make such a “judgment” about an employee who is not at the workplace, and whom the employer has no opportunity to observe? And how is the employer to provide to the employee “[w]ritten notice of the facts providing the basis for [the employer’s] judgment” prior to any medical examination, as section 72 (1) requires? The statute then says that the employer may, based upon the results of a medical examination, tell the employee “that he or she may be placed on leave of absence”—not that a leave of absence voluntarily begun shall continue. The statute goes on to refer to “the proposed leave and the proposed date on which such leave is to commence,” to give the employee an opportunity “to object to the imposition of the proposed leave of absence” and to provide that “imposition of the proposed leave of absence shall be held in abeyance until a final determination.” This last phrase is particularly telling: to say that the “imposition of the proposed leave of absence shall be held in abeyance” is a very strange way to describe bringing back to work an employee who has already been on leave of absence for some time.

There is no unfairness in not providing to an employee already on voluntary leave the same procedural protections given to one whom the employer wants to remove. It is entirely reasonable to require more extensive procedures to change the status quo than to continue it. It is also reasonable to think that an employee who has voluntarily withdrawn from work for medical reasons is more likely to be disabled than one who has not. In short, nothing justifies reading Civil Service Law § 72 to be applicable to cases like this.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read and Jones concur with Judge Pigott; Judge Smith dissents and votes to affirm in a separate opinion.

In each case: Order reversed, etc.