Supreme Court of the State of New York
Appellate Division: Second Judicial Department
AD3d Argued -February 2, 2015
PETER B. SKELOS, J.P.
RUTH C. BALKIN
L. PRISCILLA HALL
JOSEPH J. MALTESE, JJ.
2013-05280 DECISION & ORDER
In the Matter of Nassau Community College Federation
of Teachers, Local 3150, et al., petitioners-appellants,
v Nassau Community College, et al., respondents,
Nassau County Community College Foundation,
(Index No. 8550/12)
Richard E. Casagrande, New York, N.Y. (Sherry B. Bokser of counsel), for
Bracken Margolin Besunder LLP, Islandia, N.Y. (Harvey B. Besunder and Mark
Keurian of counsel), for respondent-respondent.
In a proceeding pursuant to CPLR article 78, inter alia, to review a determination by
Nassau County Community College Foundation dated March 8, 2012, which denied the petitioners’
request pursuant to the Freedom of Information Law (Public Officers Law art 6), the petitioners
appeal from an order and judgment (one paper) of the Supreme Court, Nassau County (Feinman, J.),
dated February 25, 2013, which granted the motion of Nassau County Community College
Foundation to dismiss the petition insofar as asserted against it and, in effect, dismissed the
proceeding insofar as asserted against Nassau County Community College Foundation.
ORDERED that the order and judgment is reversed, on the law, without costs or
disbursements, the motion of Nassau CountyCommunityCollege Foundation to dismiss the petition
insofar as asserted against it is denied, and the petition is reinstated insofar as asserted against
Nassau County Community College Foundation.
The respondent Nassau Community College (hereinafter the College) is a public
college, chartered under Education Law article 126, which is sponsored and partially funded by
April 8, 2015 Page 1.
MATTER OF NASSAU COMMUNITY COLLEGE FEDERATION OF TEACHERS, LOCAL
3150 v NASSAU COMMUNITY COLLEGE
Nassau County, and governed by a Board of Trustees. The respondent Nassau County Community
College Foundation (hereinafter the Foundation) is a not-for-profit corporation created in 1979 to
support the College’s mission.
On March 5, 2012, the petitioners sent a request pursuant to the Freedom of
Information Law (Public Officers Law art 6; hereinafter FOIL) to the Foundation, seeking the
production of certain documents. On March 8, 2012, the Foundation responded to those requests
by stating that the Foundation is not a governmental agency and, therefore, is not subject to FOIL.
After making another request and receiving another denial, the petitioners commenced this
proceeding pursuant to CPLR article 78 seeking, inter alia, to review the Foundation’s determination
that it was not a public agency subject to FOIL. The Foundation moved pursuant to CPLR 7804(f)
and, in effect, CPLR 3211(a)(1) to dismiss the petition insofar as asserted against it. The Supreme
Court granted the Foundation’s motion and, in effect, dismissed the proceeding insofar as asserted
against the Foundation. The petitioners appeal.
FOIL “was enacted ‘to promote open government and public accountability’ and
‘imposes a broad duty on government to make its records available to the public’” (Matter of Cook
v Nassau County Police Dept., 110 AD3d 718, 719, quoting Matter of Gould v New York City Police
Dept., 89 NY2d 267, 274). All “public agencies” are subject to FOIL (Matter of Perez v City Univ.
of N.Y., 5 NY3d 522, 528). An “agency” is “any state or municipal department, board, bureau,
division, commission, committee, public authority, public corporation, council, office or other
governmental entity performing a governmental or proprietary function for the state or any one or
more municipalities thereof, except the judiciary or the state legislature” (Public Officers Law §
86; see Matter of Perez v City Univ. of N.Y., 5 NY3d at 529).
On the Foundation’s motion pursuant to CPLR 7804(f) and, in effect, CPLR
3211(a)(1) to dismiss the petition insofar as asserted against it, the Foundation had the burden to
provide documentary evidence that “utterly refute[d] [the petitioner’s] factual allegations,
conclusively establishing a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of N.Y., 98
NY2d 314, 326; see Matter of Oliner v Sovereign Bank,123 AD3d 1041; Matter of Oddone v Suffolk
County Police Dept., 96 AD3d 758, 760; Mendelovitz v Cohen, 37 AD3d 670; CPLR 3211[a]).
The Foundation failed to do so, as it failed to establish that it lacks the attributes of a public entity
(see Matter of Perez v City Univ. of N.Y., 5 NY3d at 528; Matter of Buffalo News v Buffalo Enter.
Dev. Corp., 84 NY2d 488; Lugo v Scenic Hudson, 258 AD2d 626; Matter of Runmore v Board of
Educ. of City Sch. Dist. of Buffalo, 35 AD3d 1178, 1180).
Accordingly, the Supreme Court should have denied the Foundation’s motion
pursuant to 7804(f) and, in effect, CPLR 3211(a)(1) to dismiss the petition insofar as asserted against
SKELOS, J.P., BALKIN, HALL and MALTESE, JJ., concur.
Clerk of the Court
April 8, 2015 Page 2.
MATTER OF NASSAU COMMUNITY COLLEGE FEDERATION OF TEACHERS, LOCAL
3150 v NASSAU COMMUNITY COLLEGE
A combination of relentless lobbying efforts by Mr. Christopher Black from NYSUT’s Legislative Department and the use of NYSUT’s VOTE-COPE funds which support our friends in the State Assembly and Senate, have resulted in the State Legislature adopting a $100 FTE base aid increase to NYS Community Colleges. In addition to the $100 FTE increase, we were able to defeat the Governor’s Performance Based Funding initiative again this year. The more often this proposal is defeated, the less likely it will resurface.
The NCCFT Executive Committee wants to thank the NCCFT PAC Co-chairs, Ms. Dawn Smith and Dr. Stephanie Sapiie for their efforts lobbying our State elected officials and organizing the faculty and students at NCC in the Fair Funding petition drive. In addition, a thank you goes out to our NCCFT members who worked the drive, who contribute to VOTE-COPE and who have contacted their state representatives. We would like to extend special thanks to Assemblyperson Deborah Glick (D-Manhattan), Assembly Higher Education Chair, and Senator Ken LaValle (R-Port Jefferson), the Senate Higher Education Chairperson, for their support.
This is how success is achieved when we all work together. Please support the NCCFT Political Action 1/10 of 1 percent campaign when your NCCFT Department Representative distributes the new VOTE-COPE authorization cards in the coming weeks.
Partial List of Gathering Points
(Some locals are planning to meet at the following locations, but all are welcome at any location.)
- Left Coast Kitchen, 1810 Merrick Rd, Merrick (BMUST)
- Valley Stream Town Pool, Merrick Rd., 1 block east of Fletcher Ave., Valley Stream (VSTA)
- McQuades, 275 Merrick Rd, Lynbrook (Lynbrook TA)
- J. Paul’s Terrace Cafe, 239 Merrick Rd, Oceanside (Oceanside TA)
- Vine Wine Bar, 2259 Merrick Rd, Merrick (North Bellmore TA)
- Corner of Merrick Road and Wantagh Ave., Wantagh (Westbury TA)
- Burns Park, 4990 Merrick Rd, Massapequa Park
- Massapequa HS, 4925 Merrick Rd, Massapequa (Massapequa FT)
- NEFCU, 556 Merrick Rd, Rockville Centre (RVCTA)
- Bayview Avenue Elementary School, S. Bayview Ave. and Merrick Road, Freeport (Freeport TA)
- Great South Bay Shopping Center, 835 Montauk Hwy, West Babylon
- Islip Town Hall, 655 Main St, Islip
VOTE-COPE: Voices of Teachers in Education – Campaign on Political Education
As a follow-up to our General Faculty meeting on March 10 and comments made by Jeff Zuckerman, NYSUT VOTE-COPE spokesman, the NCCFT is launching a new Political Action campaign with the State and County.
The national assault on public education is growing stronger and bolder every day. Huge corporate interests such as the Koch Brothers outspend unions 15-1 in the political arena. As these anti-public education forces become emboldened by their successes in Wisconsin and Michigan, they are engaging our Governor, Senate and Assembly with promises of huge savings in public education funding, while filling their campaign coffers. There is no question that without the support of NYSUT members and their VOTE-COPE contributions, New York State would be on its way in joining the list of Right-to-Work. No one can remember a Governor of New York who harbors more disdain for public education than Governor Cuomo. We are talking about the end of the academy as we know it. We are talking about the abolition of our union, tenure and pensions; the abolition of shared governance, academic scheduling and a reduction in pay and benefits; job security would be a thing of the past.
What has VOTE-COPE lobby efforts done for us?
- protects public pensions.
- eliminated the 3% ORP contribution after 10 years.
- protects Triborough and tenure.
- protects against Right-to-Work intrusions.
- effectuates both Operating and Capital funding to our campuses.
- stopped Performance Based Funding on SUNY campuses.
Local (NCCFT receives 40% rebate of VC funds from NYSUT)
- ensures Maintenance-of-Effort from local sponsor.
- provides access to County leaders.
- provides PAC functions for education.
The only way to stem the tide is through relentless lobby efforts. NYSUT has identified and supports those State Assemblypersons and Senators who will vote for sensible legislation. In addition, NYSUT educates those elected officials who don’t understand the importance of a strong public education system. In addition to lobbying our elected state officials, the NCCFT uses VOTE-COPE funds to support our friends in the county and continue educating all of them as to the services we provide.
In the next couple of weeks, your NCCFT department representative will be distributing personalized VOTE-COPE authorization cards. At the present time, Nassau County has indicated they cannot make deductions more than once per year. Previous VOTE-COPE authorized payroll deductions are scheduled to be deducted from your April 16, 2015 paycheck. Therefore, the VOTE-COPE authorization cards we are asking you to complete will take effect in April of 2016. Of course, if you wish to make an additional contribution this year, please write a check made payable to VOTE-COPE and bring it to the NCCFT office. Thanks to those of you who are ongoing contributors and those who have sent in new authorizations and/or one-time additional contributions.
We have developed a fair and reasonable plan that will allow the NCCFT to join other NYSUT members who have been supporting NYSUT’s political action and that of the NCCFT in a more equitable manner.
We call it the “1/10 of one percent solution”. This recognizes that there is a difference in salaries, yet clearly expects overwhelming participation from our members. For example:
If you earn $25,000……………………..you would contribute $25
If you earn $50,000……………………..you would contribute $50
In you earn $75,000…………………….you would contribute $75 etc.
We are not talking about making a political contribution, we are asking you to protect your livelihood, your family’s security and your future.
If you have any questions, please contact the NCCFT office. THANK YOU on behalf of every NYSUT member. VOTE-COPE needs us and we need VOTE-COPE.
The NCCFT has filed a Step II grievance against the College in violation of the CBA with particular emphasis on Section 19 Academic Senate in regards to recent BOT resolutions. More details will follow at the April 7, 2015 Executive Board meeting.
Things to Come
The NCCFT Executive Committee along with our NYSUT/AFT Delegates joined HigherEd colleagues from across the United States for the joint NEA/AFT Higher Education Conference “Advancing Equality On and Off Campus” in Orlando, FL from March 12-15, 2015.
The conference was comprised of workshops covering governance, membership, political action, finances, grievances, and litigation.
Labor History for Higher Education, Fighting Higher Education Corporatization, Addressing Membership Apathy, Demystifying the Threats and Opportunities of MOOC’s, Bargaining Issues: Control of Curriculum, Addressing Sexual Violence on Campus, and Transmitting Our Values Across Generations were only a few of the workshops offered.
The session on Advancing Equity on campuses was particularly interesting. At a time when institutions of Higher Education throughout the country are laying off full-time faculty or not replacing those who retire, how do we increase the diversity of our full-time faculty, staff and administration to mirror the faces and experiences of our students and our county?
Citing Angela Davis, one panelist reminded us that equity is not justice. In a similar vain, another panelist noted that diversity is not equality. These are issued for all of us to address in these most challenging times.
In addition, a host of guest speakers described the national threats to public higher education funded by political action committees and hedge-fund managers seeking to privatize our public institutions.
This attack has been successful in other parts of the nation where places such as Wisconsin and Michigan have turned into Right-to-Work States. It is obvious that even in New York, which has an established union presence and an established public education system, we are being attacked by Governor Cuomo and his hedge-fund backers. The privatization concept of public higher education appears to have trickled down to our local political structure whereby the appointment of the Board of Trustees has resulted in directing the NCC Administration to adopt a business model for this campus. How else can we account for their insistence on lowering the requirements for acceptance into credit bearing classes and then lowering the standards for graduation?
The recent Academic Senate meeting proved that the faculty across this campus, regardless of discipline or educational philosophy, are opposed to the usurpation by the Board of Trustees of the authority and time-honored role of the faculty in determining curriculum and standards for our students.
We urge everyone to speak to your Chairs, Senators, Senate Committee and Union Representatives to join in one voice that we will not be complacent in the BOT’s agenda to dismantle our reputation as a top community college that is recognized for academic excellence and known as “The Gem of Nassau County”.