The Committee on Open Government implores New York State for reform

The New York State Legislature created the Committee on Open Government (CoOG) in 1974 to provide advisory opinions and develop regulations for compliance with the newly ratified Freedom of Information Law, or FOIL. Every year, CoOG issues an annual report with proposals for improving access to public meetings and records in the State of New York.

The 2022 Annual Report is a plea for fundamental change of the system overseen by CoOG. The report notes that “the current structure of administrative oversight of FOIL compliance does not promote the prompt and efficient disposition of such disputes.” This is because state laws for records requests made with local governments are not enforced by any state agency. Instead, those who make records requests must spend hundreds or thousands of dollars suing local governments to compel compliance. CoOG’s report puts it thus: “The current statutory construct for appeal and enforcement places an expensive and time-consuming burden on private citizens seeking redress for perceived violations of the open government statutes.”

The report points to other states which fund offices to enforce freedom of information laws and to two bills in the New York State Legislature which seek to improve outcomes and timeliness for records requests. 

The report asks the New York State Legislature to clarify the intent of its repeal of Civil Rights Law section 50-a (which had prohibited disclosure of police disciplinary records), since the current body of case law is inconsistent on whether the repeal applies retroactively and whether disclosure of pending or unsubstantiated complaints is now required.

CoOG also advises on the compliance of public bodies with New York State’s Open Meetings Law, or OML. The 2022 Annual Report comments on the ambiguity of whether OML applies to advisory bodies. Historically it has applied, but the text of a 2021 amendment suggests it does not, despite that the Legislature’s memo that accompanies the amendment stresses that it does.

The report notes “no court has yet interpreted whether this change in the law now excludes from coverage by the OML all advisory bodies,” but I am sad to report that the Erie County Supreme Court decided in December 2022 that the City of Buffalo’s Citizens Advisory Committee on Reapportionment is not a “public body” as described in the amendment and therefore is not subject to the OML. The full docket for this case is available here.

Finally, the report calls attention to a bill that seeks to require public meetings be livestreamed, and it raises the alarm that the OML amendment allowing videoconferencing for public meetings will expire January 1, 2024, unless renewed. The recommendations of the report are worthy of serious consideration. I urge our state legislators to take action, and I encourage members of the public to contact their state legislators and demand that action.

Board Oversight and Intervention training now available from LOSA

The Law Office of Stephanie Adams provides legal services to New York State nonprofits and their boards of trustees. After reading in The Buffalo News that the boards of two prominent Buffalo nonprofits failed to respond in a timely and considerate manner to complaints concerning their former presidents, we have created a board member training regime on board oversight and tough decision-making. 

The 90-minute training, titled Board Oversight and Intervention: Using the Tools of Governance to Prevent and Address Concerns in an NFP Environment, will coach current and prospective board members on how to prepare for, prevent, and appropriately respond to conflicts between, controversy about, and misconduct by board members.

The customizable and confidential training, designed to consider the unique mission and culture of your organization, will provide participants with simple yet critical tools that boards can use to create and maintain a healthy work environment while promoting a not-for-profit mission.

Our trainers are Stephanie “Cole” Adams, former General Counsel at Niagara University, and Samantha White, President of the Minority Bar Association of Western New York, who between them have thousands of hours of board training, investigations, and advocacy experience with charitable operations. While the topic is serious, Cole and Sam work to keep the content interactive and engaging.

To inquire about a customized training for your organization, reach out to info@losapllc.com or call (716) 464-3386 to reach out to Ms. Adams personally.

LOSA Emerging Artists Initiative, Phase 2: Drawn to India

Exciting times in Buffalo!

Anyone who watches our firm will not be surprised to learn we’re happy to see a mayoral candidate focused on the health and well-being of every Buffalo resident. In fact we’re so pumped about this, we want to turn some of that enthusiasm into art…so our latest “Emerging Artists” theme is “Drawn to India.”

Here’s how to participate: Submit your picture of the woman who is reinvigorating local politics by July 16, 2021 (to kalinprice@losapllc.com).

The winning image (selected by the team here at the LOSA) will be displayed in the LOSA windows at the corner of Potomac and Grant, and the artist will be awarded $300, along with a matching donation in their honor to the India Walton campaign.

No no write-in's need apply!

LOSA Emerging Artists Initiative Launches: January, 2021

It’s been a rough year. One thing that sustains us, no matter how challenging things get, is art.

To celebrate and support the emerging artists in our home territory of Buffalo, NY, the LOSA has created an “Emerging Artists Initiative.”

It’s a simple program: 4 works of original art by an emerging Buffalo artist, and the artist’s bio, are displayed in our beautiful storefront windows on Grant Street. We switch the display every three months (every quarter). And because the LOSA firmly believes that artists should be paid, we pay $300.00 (three hundred) for the right to showcase this work.

To mix things up, we pick a theme each quarter. This January’s theme is something we all need: renewal.

Interested in applying? Please send 4 photos of your work, a bio (required to be considered), complete contact information (phone, address, email) and expression of interest to paralegal Kalin Price at kalin@losapllc.com.

We’ll select the first “LOSA Emerging Artist” by January 22, 2021 (since we can only pick one, all other entrants will be notified by January 23 via email, and invited to try again in April). You get your check when you drop off the display copies of your work.

Who is a Buffalo “emerging artist?” Anyone whose bio shows us a serious commitment to the pursuit of graphic arts, with limited commercial support to date. And you have to live in Buffalo (we love you too, Niagara Falls, but this one’s for the home team).

Not sure how to write your bio? Send us your name, what inspires you, why you have chosen a creative path, and what the work you submitted means to you.

Comments on Public Library Board Autonomy

Law and current legal authority firmly establish that public library boards are the sole authority regarding employee terms of employment, including hiring, compensation, benefits, evaluation, promotion, discipline, and termination. 

This autonomy is constrained only by a public library board's need to observe the New York Civil Service Law, the New York Education Law, numerous state and federal labor laws, various applicable regulations, and a library's own charter and bylaws. 

The law does allow a public library to use, in whole or in part, the payroll system, policies, and benefits systems of their sponsoring government entity, if such resources are offered to the library by that entity.  Further, the government entity, in making such an offer, may condition such use on the library's cooperation with certain reporting procedures or methods of documentation.  The choice to use such offered resources, however, is ultimately at the discretion of the library's board, who may instead decide to have the library implement its own system. 

And finally, the choice as to how to expend library funds with respect to employees (salary, benefits, paid time off) always rests solely with a public library's board.

The legal authority establishing these considerations is extensive, but a thorough summary is set forth in the links and content below.

https://www.osc.state.ny.us/legal-opinions/opinion-93-15, which states:

"The ultimate control of the use, disposition and expenditure of the library fund moneys is vested in the library board even when the municipal treasurer has custody (1991 Opns St Comp No. 91-57, p 158). Further, even if the treasurer of the sponsoring municipality is custodian of the library fund, the library board would have custody of private source moneys of the library (1988 Opns St Comp No. 88-76, p 145; 1980 Opns St Comp No. 80-340, p 101).

Public libraries are, for most purposes, fiscally autonomous from the sponsoring municipality (see Opn No. 91-57, supra; 1983 Opns St Comp No. 83-32, p 37; Buffalo Library v Erie County, 171 AD2d 369, 577 NYS2d 993 affd 80 NY2d 938, 591 NYS2d 131). In addition, public library officers and employees are often not considered to be officers and employees of the sponsoring municipality or school district (see, e.g., General Municipal Law, §800[5], conflicts of interest; Public Officers Law, §10, official oaths; Binghamton Public Library v City of Binghamton, 69 Misc 2d 1005, 331 NYS2d 515 and County of Erie v Board of Trustees, 62 Misc 2d 396, 308 NYS2d 515, collective bargaining negotiations). In view of the library's fiscal autonomy, it is our opinion that library trustees and the separate library treasurer are not town officers or employees for purposes of Town Law, §123 and, therefore, are not subject to the accounting and auditing provisions of that section.

We note, however, that General Municipal Law, §30(3) requires that an annual report of financial transactions, including those involving private source moneys (Opn No. 88-76, supra), be made by the treasurer of each public library. The report must be certified by the officer making the same and, unless an extension of time is granted, must be filed with the Office of the State Comptroller within 60 days after the close of the library's fiscal year (General Municipal Law, §30[5]). In addition, the Education Law contains certain requirements for public libraries to report to the State Education Department (see Education Law, §§215, 263). Finally, as noted in Opn No. 88-76, supra, the town board, in determining the amount to be raised by taxes for library purposes, may take into account a library's private source funds and, therefore, may request from the library information concerning such funds."

https://www.osc.state.ny.us/legal-opinions/opinion-91-57, which states:

"With respect to library moneys, however, we note that public libraries are, for most purposes, fiscally autonomous from the sponsoring municipality (see, e.g., 1983 Opns St Comp No. 83-32, p 38). Thus, the ultimate control of the use, disposition, and expenditure of those moneys is vested in the library board of trustees even if the municipal treasurer is the custodian of library moneys. (Education Law, §§226[6], 259[1]; 1987 Opns St Comp No. 87-84, p 125; see also Opn No. 87-49, supra; Opn No. 86-54, supra). In addition, it is the library board of trustees which may authorize the investment of library moneys even when the moneys are held in the custody of the municipal treasurer (Opn No. 86-54, supra). Therefore, since the library board controls the use and disposition of library fund moneys, it is our opinion that the library board must consent to any arrangement under which library fund moneys are to be comingled with moneys of the municipality."

https://www.osc.state.ny.us/legal-opinions/opinion-2001-12, regarding indemnification of library trustees, which states:

"PUBLIC OFFICERS LAW §18: There are two alternatives for conferring the benefits of section 18 of the Public Officers Law on employees of a public library: either (1) the board of trustees of the library may elect to confer the benefits of section 18 on library employees as a public library expense; or (2) the governing board of the sponsoring municipality or school district may confer section 18 benefits on library employees as a direct expense of the sponsor."

Comptroller Opinion #445, which states:

"As a general rule, the town library board of trustees, and not the town board, has the authority to appoint and dismiss library personnel (Education Law, §§ 226(7), 260; 30 Opns St Comp, 1974, p 98). The library board exercises direct control and supervision over library personnel and, for most purposes, including labor negotiations [**486] under the Taylor Law (Civil Service [*2] Law, §§ 200, et seq.), the library board is considered to be the employer of library personnel (County of Erie v. Board of Trustees, 62 Misc 2d 396, 308 NYS2d 515; Binghamton Public Library Unit v. City of Binghamton, 69 Misc 2d 1005, 331 NYS2d 515; Opns St Comp, 1972, No. 72-402, unreported; cf. Retirement and Social Security Law, § 30(c); Opns St Comp, 1980, No. 80-199, as yet unreported; Finkelstein v. Central School District, 34 AD2d 781, 311 NYS2d 243 affd 28 NY2d 705, 320 NYS2d 751). Compensation for library personnel is fixed by the library board and paid from the library fund (Education Law, §§ 226(7), 259(1)). It would then follow that, as between the town board and the library board, it is the library board which determines the vacation and sick leave benefits for library employees. It is our opinion that a library board of trustees has implied authority to provide for sick leaves and vacations for library employees (see Opn No. 80- 199, supra; 1961 Atty Gen [Inf Opns] 105; Education Law, §§ 226(7), 260). We note that expenditures for employer contributions to the New York State Employees' Retirement System for library employees are expenses [*3] incurred for the operation of the library and should be paid from library funds (Opns St Comp, 1975, No. 75-903, unreported; 16 Ed Dep't Rep, 1977, p 416). The same would hold true for employer contributions for social security and unemployment insurance for library employees."

I hope this information is of assistance.

Stephanie Adams discusses 50-a police records ruling with local media

Stephanie “Cole” Adams discussed her client James Kistner’s successful fight for the release of Buffalo Police Department disciplinary records with WKBW’s Madison Carter on October 6:

https://www.wkbw.com/news/local-news/judge-rules-police-and-fire-disciplinary-records-should-be-public-strikes-down-unions

In the interview, Adams noted the importance of her client’s intervention in the lawsuit, which was originally filed against the City of Buffalo and city officials only to prevent the release of records.

“Buffalo is very often the defendant in cases involving allegations of misconduct by the Buffalo Police Department, and so there might not be the strongest motivation for them to fight the case vigorously,” Adams said.

Judge dismisses police union lawsuit over disciplinary record release

State Supreme Court Judge Frank Sedita dismissed the Buffalo Police Benevolent Association’s lawsuit that demanded the City of Buffalo keep police records private despite the repeal of Article 50-a, the New York State law that kept those records secret for decades. 

LOSA attorney Stephanie “Cole” Adams successfully argued to dismiss the lawsuit and clear the records for release on behalf of client James Kistner, who has demanded the Buffalo Police Department’s records, now available due to the repeal of 50-a. The City of Buffalo, the original defendant in the case, also argued to dismiss the lawsuit.

“Transparency and access to law enforcement disciplinary records are critical to addressing concerns with law enforcement and building trust in our community,” said Adams. “ My client Jim Kistner knows, first-hand, how important it is for Buffalo residents to have faith in our police, and to access law enforcement records when that faith is shaken.”

Kistner has filed a civil rights action alleging that on New Year’s Day, 2017, in front of his residence on Buffalo’s East Side, he was struck by a police vehicle as he approached a second police vehicle in order to ask officers why they had visited a nearby rental property he owns. He filed the case in 2018; the preliminary injunction requested by the police union was cited to bar his access to records critical to the case. 

At a prior hearing, Adams successfully argued he be added to the case given his specific interest in having the records released.

Today in court, held virtually over Skype, Judge Sedita dismissed the unions’ case, denied the temporary restraining order that had kept the records private while the litigation was pending, and vacated the preliminary injunction keeping the records from being released. He did not rule on any specific Freedom Of Information Law requests for police disciplinary records, including Kistner’s.

For decades, “Article 50-a” had prevented plaintiffs, journalists, activists, lawmakers and anyone else in the general public seeking to investigate or redress harm by police officers from obtaining investigative and disciplinary records from police departments. With the repeal of 50-a, many of those records, with redactions for privacy and health information, are accessible via the state’s Freedom of Information Law (“FOIL”). 

The Law Office of Stephanie Adams, PLLC will continue to use the repeal of 50-a and the new provisions of FOIL to fight for access and transparency on behalf of Jim Kistner, and other clients.  Requests for interviews about the case may be directed to adams@losapllc.com and keltz@losapllc.com.

LOSA Client James Kistner Added as Party to “50-a Repeal” Lawsuit

The Law Office of Stephanie Adams, PLLC, is gratified to announce our client, Mr. James Kistner, was accepted as a party to Buffalo Police Benevolent Association et al vs. Byron Brown et al, the local case in the fight to uphold the repeal of Article 50-a.

“The fight to preserve and ensure access to law enforcement disciplinary records, as guaranteed by the recent changes to the law, is critical,” said attorney Stephanie “Cole” Adams.  “Mr. Kistner, like many others, want to shine the light of day on these records.  By being admitted as a party, he can advance his rights under the new law.”

At a hearing this afternoon, State Supreme Court Judge Frank Sedita noted Kistner has a specific interest at stake in advocating for the records’ release. 

On New Year’s Day, 2017, in from of his residence on Buffalo’s East Side, Jim Kistner was struck by a police vehicle as he approached a second police vehicle in order to ask officers why they had visited a nearby rental property he owns. He filed suit against the City of Buffalo in 2018; the enforcement of 50-a repeal is crucial to his case as he seeks disciplinary records for the officers involved in this incident, and for the department overall.

For decades, “Article 50-a” had prevented plaintiffs, journalists, activists, lawmakers and anyone else in the general public seeking to investigate or redress harm by police officers from obtaining investigative and disciplinary records from police departments. With the repeal of 50-a, many of those records, with redactions for privacy and health information, are accessible via the state’s Freedom of Information Law (“FOIL”).

The Buffalo Police Benevolent Association seeks to keep those records inaccessible, despite the new legislation and its stated goals.

Today’s proceedings were limited to those parties to be admitted to the case.  The matter returns to Sedita’s courtroom on October 6, at which time the City of Buffalo’s motion to dismiss the case, as well as Kistner’s motion to dismiss and request to preserve the records and guarantee access as required by the new law, will be heard on the merits. 

The LOSA has requested every possible “law enforcement disciplinary record” the City of Buffalo has.

James Kistner is a Buffalo resident, a father of young children, and an average citizen who since 2017 has been fighting for justice as a result of police misconduct.

Donations to help defray the cost of his continuing fight for all records available from Buffalo’s police department can be directed to The Law Office of Stephanie Adams, PLLC, Trust Account, with a designation of” James Kistner 50-a Legal Support Fund;” contact (716) 464-3386 for further information.  Any amount not used will be applied to preserving and making accessible to the public the records Mr. Kistner is fighting to access under the repeal of 50-a.

Adams discusses police records reform with Investigative Post

Stephanie “Cole” Adams discussed her client’s case against the Buffalo Police Department, his need for access to police disciplinary records, and the larger landscape of 50a repeal with the Investigative Post’s Geoff Kelly in an article published September 1.

https://www.investigativepost.org/2020/09/01/police-transparency-hinges-on-legal-battle/

The LOSA is one of many law firms and interested parties to file to join the case, which the local Police Benevolent Association filed against Buffalo mayor Byron Brown and other officials to halt the release of disciplinary records under an update to NYS Freedom Of Information Law that would allow citizens much broader access to the records.

The LOSA and our client James Kistner note the city’s original response to this lawsuit was to ask the court for guidance on how to comply with what the police union wanted. Later, after various parties filed to intervene, the city filed an additional response to the suit.

As quoted in the article:

Stephanie Cole Adams, a Buffalo attorney who has sought to intervene in the case, called the city’s original acquiescence to the judge’s order and silence in response to the union’s argument’s “a serious lapse of statutory duty.”

“We had concerns the city wouldn’t fight [Sedita’s restraining order], but even my cynicism was shocked by the reply the city filed,” Adams told Investigative Post.

The motions to intervene are scheduled to be heard in court September 15.

LOSA Files to Access Police Records, Uphold 50a Repeal

Buffalo, NY --- The Law Office of Stephanie Adams, PLLC,  is proud to represent James Kistner in his fight for his rights under the Freedom of Information Law (FOIL). On Monday, August 17, the office filed a Motion to Intervene in Buffalo Police Benevolent Association et al vs. Byron Brown et al, a case filed by local police and fire unions to stop the release of disciplinary records under the newly passed New York State legislation that repealed Article 50a. 

Article 50a had prevented plaintiffs, journalists, activists, and anyone else seeking to investigate or redress harm by police officers from obtaining investigative and disciplinary records from police departments. Under the repeal of 50a, many of those records, with redactions for privacy and health information, would be accessible via the FOIL request process. The PBA suit seeks to keep those records confidential, despite the new legislation and its stated goals.  

"The repeal of the law that was barring access, plus the added access and protections in FOIL means Mr. Kistner, and any person making a FOIL request, should have access to law enforcement agency disciplinary records," said firm owner Stephanie "Cole" Adams.

"The unions' position that the newfound access under FOIL violates their contracts is backwards," says Adams.  "Due to the changes to FOIL, the public is now clearly entitled to records related to complaints about officers' alleged behavior.  You cannot enforce a contract provision that requires breaking the law."

James Kistner has a pending FOIL request to the City of Buffalo/Buffalo Police Department, for materials relevant for an ongoing civil rights case based on reported police misconduct. On New Year’s Day, 2017, on Buffalo’s East Side, Kistner was struck by one police vehicle as he approached a second police vehicle in order to ask officers why they had visited a nearby rental property he owns. Kistner also lives in the area where the incident took place and had security footage from his own cameras showing the events that occurred. Kistner filed suit in 2018; the enforcement of 50a repeal is crucial to his case. 

"My client is entitled, like any other person in New York, to request and, after any redaction required by law, receive copies of these records.  This is a matter of legal compliance, as well as the ability of my client to access information relevant to his police misconduct case," Adams said.

The attached Attorney Affirmation and Memorandum of Law detail the case for enforcing 50a repeal, and for allowing Kistner to become a part of this case so he can fight for his own rights, and those of many similarly situated citizens. 

The case is scheduled to be heard before Hon. Frank A. Sedita on Wednesday, August 26.