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CITY OF UTICA

OFFICE OF THE CORPORATION COUNSEL


1 KENNEDY PLAZA, UTICA, NEW YORK 13502
PH.315-792-0171 | FAX. 315-792-0175

ROBERT M. PALMIERI WILLIAM M. BORRILL


MAYOR CORPORATION COUNSEL

ASSISTANTS
ZACHARY C. OREN
KATHRYN HARTNETT
JOSEPH V. MCBRIDE
MERIMA SMAJIC
ARMOND J. FESTINE
JOHN P. ORILIO
DAVID A. LONGERETTA
CHARLES N. BROWN

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 Counsels
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 considered confidential 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

WWW.CITYOFUTICA.COM
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 Citys
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. Patrolmens
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 Counsels 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 themselves followed 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 Palmieris 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 Pattersons 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 plaintiffs 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 cannot and 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 Counsels 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.