In regard to Fire Chief Russell Brooks and the fact he was placed on indeterminate, non-disciplinary paid administrative leave on Friday, May 12, 2017, several news agencies and the general public have made inquiry and requested the underlying details surrounding the decision to place Chief Brooks on leave pursuant to Section 72 of the New York State Civil Service Law.
The City wishes to be transparent in this matter, but it would require Chief Brooks to grant permission to release documents contained in his personnel file, such as health information, which is protected by New York State Civil Rights Law and New York State Public Health Law.
In an effort to answer these questions, yesterday (May 15, 2017) the Corporation Counsel’s office forwarded to Chief Brooks’ attorney, James R. Roemer, Jr., Esq. a release for Chief Brooks’ signature to grant the City such permission to disclose this otherwise protected information, absolving the City from any and all civil liability for releasing such information.
It is our hope Chief Brooks will sign the release so the facts can become public information and shared with the general public and Common Council.
Without the signed release, the City of Utica is legally prohibited from discussing these matters publically as discussed above.
It is also worth noting how important it is for municipalities to properly follow all protocol in regards to personnel matters, such as 207-a applications, which are protected by confidentiality and non-disclosure.
In the past, when the City has breached these protocols it has created costly repercussions. For example, in Patterson v. City of Utica, a case commenced in 2004, the City of Utica was subjected to liability because of statements made publically by former Mayor Timothy Julian about an employee’s termination and eventually settled for $225,000 before trial and over $17,000 in additional costs.
Another example is Koziol v. City of Utica where a jury awarded over $25,000 to former Corporation Counsel Leon Koziol as a result of statements made by former Mayor Edward Hanna that allegedly damaged the plaintiff’s reputation.
Given this history, it is disingenuous for former or current elected officials to seek disclosure of information they know we are not allowed to make. Mayor Robert Palmieri steadfastly maintains the City must follow the law in all circumstances, no matter who the person of the subject matter concerns.
It should be stated that in several 207-a cases, the City receives the application, obtains appropriate medical information, reviews the file and when necessary, seeks the advice of outside medical experts.
With that said, any notion the City denied the fact Chief Brooks and eleven (11) other members of the Utica Fire Department helped on September 11th, 2001 without the City’s approval is false. The City has always recognized and appreciated that service.
The denial of Chief Brooks’ 207-a claim was based solely on the independent review of the facts; we hope to be able to share those facts publically.
CITY’S POSITION STATEMENT
Fire Chief Russell Brooks was placed on indeterminate, non-disciplinary administrative leave on Friday, May 12, 2017. The Mayor and the Corporation Counsel’s office understand several news agencies, media outlets and the general public have made several inquiries and have requested the underlying details surrounding the decision to place Chief Brooks on such leave pursuant to Section 72 of the New York State Civil Service Law. Chief Brooks has also stated publically that the City of Utica has denied his claim for New York State General Municipal Law Section 207-a benefits. Chief Brooks’ application for 207(a) benefits was denied and Section 72 leave was instituted. Chief Brooks has due process readily available to him under the law. However, he has chosen to take his case to the court of public opinion, where the City of Utica is seriously limited in its ability to be heard on such a matter.
For the City to provide further details at this time would require the City to release documents contained in Chief Brooks’ personnel file, medical file as well as other health information which is protected information by the law. Specifically, New York State Civil Rights Law, Section 50-a clearly states that personnel records of firefighters under the control of a municipality shall be consideredconfidential and not subject to the inspection or review without the express written consent of the firefighter except as mandated by a lawful court order. Moreover, under the New York State Public Health Law, Section 18 and as confirmed by Robert Freeman, Executive Director of New York State Committee on Open Government, there is a prohibition on disclosure of patient information which includes any information concerning or related to the examination and health assessment of an individual, including but not limited to employment purposes.
To be clear, the fact Chief Brooks applied for 207-a benefits and the City’s determination of his request does not constitute a violation under New York State Public Health Law §18 and is not considered an unwarranted invasion of personal privacy under the Freedom of Information Law (FOIL), so long as the description of the conditions, diagnosis and the like are not disclosed, except to other healthcare providers or upon the written consent of the patient. Moreover, “Public Health Law §18(6) provides that patient information disclosed by a healthcare provider to a third party must be kept confidential by the party receiving such information” as cited in the case of Rockland Cty. Patrolmen’s Benev. Assn, Inc. v. Collins, 225 A.D. 2d 534, 535 (2nd Dept. 1996).
With that said, as of yesterday, May 15, 2017 the Corporation Counsel’s office has forwarded to Chief Brooks’ attorney, James R. Roemer, Jr., Esq. a
release for Chief Brooks’ signature to allow the City permission to disclose
this otherwise protected, personnel and health information, as well as releasing the City from any and all civil liability for releasing such information. It is our hope that Chief Brooks will sign the release so all relevant details may become public information and a genuine conversation can be had with the members of the general public, Common Council, former Mayors and the news media. Without that release, the City of Utica is prohibited from discussing these matters publically as discussed above.
Even more important, it has been the practice of the City of Utica throughout past administrations, including that of former Mayors David Roefaro and Timothy
Julian that the protocol in regard to 207-a applications was one of strict confidentiality and non-disclosure. Such confidentiality and non-disclosure to the media were procedures which they themselvesfollowed throughout their administrations. Accordingly, for former and current elected officials to now comment on and seek disclosure of what they themselves were not allowed to make public during their administrations is, at best, disingenuous. Mayor Robert Palmieri’s administration is no exception and he has steadfastly maintained that we must follow the law in all circumstances, no matter who the person of the subject matter concerns.
Unfortunately, much of what has been conveyed to the general public, news media and others over the past few days is false, misleading and simply not true.
The City cannot control what others state publicly but can control and protect the rights of the parties involved including those of Chief Russell Brooks. Mayor Palmieri remains steadfast that his administration follows the law and adheres to past practices and protocols that have been strictly followed by this administration. The consequences of a failure to prohibit disclosure of confidential or damaging information is replete.
In Patterson v. City of Utica, a case commenced in 2004, the City of Utica was subjected to liability because of statements made publically by Mayor Julian to certain civil rights groups and a friend of the Plaintiff Stephen Patterson’s family in connection with his termination by Mayor Julian. In a decision by the United States Court of Appeals for the Second Circuit, in which now United States Supreme Court Justice Sonia M. Sotomayor signed, the case was remanded for trial and eventually settled for $225,000.00 before trial. Additionally, the City paid $17,734.91 to Attorney Kevin Luibrand to defend the City.
In Koziol v. City of Utica, 107 F.Supp.2d 170 (2000) a jury awarded $25,325.52 to former Corporation Counsel Leon Koziol as a result of statements made by then Mayor Edward Hanna that allegedly damaged plaintiff’s reputation. Therefore, not only would it be in violation of New York State Civil Rights Law Section 50-a and the New York State Public Health Law Section 18; it would be reckless and irresponsible for the City to provide any such disclosure without Chief Brooks first authorizing and waiving his right to such confidentiality of same. Without such waiver, the City cannotand will not release such information unless in the context of an actual legal proceeding.
It should be noted as in several 207-a cases, the procedure followed is the City receives the application from the firefighter, obtains appropriate medical information, reviews the file and in the case of conflicting medical reports or complicated medical issues, seeks the advice of outside medical experts to make its determination. This is the procedure followed by the City. This was the procedure followed in Chief Brooks’ case. The City is committed to providing the due process that all its employees are entitled to under the law. Moreover, the City respects the rights of all individuals, even those who are critical of it, which is a hallmark of American Democracy. However, when a firefighter files a 207-a claim that does not mean it will be automatically granted. The burden is on the applicant to prove facts showing their eligibility.
The City has been informed by various members of the general public, news media, etc., that the denial of Chief Brooks’ 207-a application had to do with his service at the World Trade Centers on September 11, 2001. To be clear, the placement of Chief Brooks on administrative leave is not legally related to his service on September 11, 2001 at the World Trade Center. Despite Chief Brooks’ allegations to the contrary, there has never been a question of Chief Brooks’ participation along with eleven (11) other members of the Utica Fire Department on September 11 and September 12, 2001 for a twenty-four (24) hour period to assist the New York Fire Department in staging equipment at Ground Zero and assisting in a support role. This service was done with the consent, approval and appreciation of not only the prior administration but even to this day Mayor Palmieri.
The Corporation Counsel’s office recorded the entire meeting on May 12, 2017, (with Chief Brooks’ acknowledgement and permission) and provided a transcript of the meeting to Chief Brooks’ attorney. No such statements were made that Chief Brook’s was not authorized to attend ground zero as a City of Utica employee. Hopefully, with Chief Brooks’ approval and signature on the release provided yesterday, the transcript can be released to the media to correct these false and misleading statements.
The denial of Chief Brooks’ 207-a claim and placing him on leave was based on the facts, after a review of Chief Brooks’ file. This was not based on
personality conflicts nor disagreements with any elected officials including Mayor Palmieri, but on the independent medical evidence provided. The City of Utica is committed to making decisions on an independent, non-biased review of all the facts. This case is no different. We look forward to Chief Brooks providing us the opportunity to share information concerning this matter to the public.