Tier 6 Corrections and Sanitation Enhanced Disability Benefits - Update

Tracking the Tier 6 Enhanced Disability Benefits

In 2017, I posted comments on the enhanced disability benefits for Tier 6 Correction and Sanitation workers. Using Article 25 of the NYS RSSL these benefits are not documented in law but are agreed upon by the NYC mayor and each of the associated unions. The cost of the added benefits is required to be paid by additional member contributions (AMC) from the covered Corrections and Sanitation NYCERS members.

I recently requested copies of these agreements from NYCERS, and the records officer quickly provided me with copies of the mayor’s orders and the petitions from the associated unions outlining the enhanced benefit improvements. The orders for Sanitation members were signed by Mayor de Blasio on August 30, 2016, and the orders for Corrections were signed on November 29, 2016. The actual documents give a clearer picture of the new benefits than were given by PR releases.

There is an interesting phrase in each of the mayor’s order “all determinations concerning the interpretation of the benefit enhancements provide herein shall be made by the Mayor or his authorized designee”.

This gives the sitting mayor unilateral control over the benefits and creates strange issues if there is litigation concerning these benefits and, in another way, who is the administrator of these benefits?

Benefit Analysis

The first thing that struck me was that the benefit enhancements are different for the two groups.

Tier 3

In 1976, Tier 3 was passed into law with two disability benefits, Sections 506 (ordinary) and 507 (accident). Right away there were problems with these two sections along with other items in Tier 3. These problems motivated the passage of Tier 4 in 1983.

The main problem with Section 506 and 507 was that the determination of whether a member was disabled or not was made by the Social Security Administration. That determination is based on the capability of gainful employment. It was not based on the member’s ability to perform his/her specific civil service job function. It was also a problem that it was controlled by an outside agent and not the retirement system.

Tier 4

In 1983, Tier 4 removed everyone from Tier 3 except state and city Correction officers but
added S.507-a (ordinary and accident diability benefit) to Tier 3
in order to remove the SSA determination of disability and
replace it with a determination by the retirement system of whether the member was able to perform his/her job.

Tier 3

In 1997, Section 507-c was passed into law which granted state and city Correction officers a 75% benefit if they were disabled because of an accident on the job. The retirement system made the disability determination, not SSA.
There were also certain accident presumptions added to this benefit.
This benefit was not eleigible for Tier 3 escalation.

In 2009 new NYC police and fire members were forced into Tier 3 and they subsequently had S.507 modified to allow their disability determinations to be made by their retiremet systems rather than SSA.

Tier 6

In 2012, Tier 6 mandated new state and city Corrections memebers and city Sanitation members into Tier 3 with Tier 6 restrictions.

Tier 6 adopted the two basic Tier 3 disability benefits in Section 506 (ordinary) and Section 507 (accident),
and it shut down the two other Tier 3 disability benefits, Sections 507-a (ordinary/accident) and 507-c (accident)
for city correction officers.

Tier 6, however, allowed NYCERS members in Tier 3 applying for S.507 to have their disability to be determined by NYCERS under the job function criteria.
S.506, however, still requires SSA to make the disability determination.

Note: Prior to Tier 6, new Sanitation workers were eligible for Tier 4 benefits.

Actual Enhancements

With the enhancements, Tier 6 Sanitation members only upgraded their S.506 and S.507 benefits. While Tier 6 Corrections not only upgraded their S.506 and S.507 benefits but reinstated their S-507-a and 507-c benefits.

Sanitation

With enhancement, Tier 6 Sanitation members were able to drop their 50% Social Security offset for both S.506 and 507 and increase their accident (S.507) award from 50% to 75% along with a Heart Bill presumption.
S.506 is still under the Social Security Administration disability determination but not S.507.
One other item, that was included in the enhancement, was that Tier 3 escalation was dropped from S.506 and S.507.
It was replaced by a lesser COLA provision paid to all retirees.

Corrections

Tier 6 Corrections Officers members were also able to drop their 50% Social Security offset for S.506 and 507.
The award amount still stayed at 50% for S.507 but with an added Heart Bill presumption.
The S.506 is still has a SSA disability determination but not S.507.
One other item, that was included in the enhancement, was that Tier 3 escalation was dropped from S.506 and S.507.
It was replaced by a lesser COLA provision paid to all retirees.

However, Tier 6 Correction Officer members were also able to reinstate S.507-a and 507-c, ordinary and accident disability benefits.
They also were able to add the Heart Bill presumption to both benefits.
With enhancement, S.507-a lost its escalation benefit but gained the COLA benefit.
S.507-c never had the escalation benefit and only picked up the COLA benefit when it was added in 2000.

Going forward, most disability awards for Tier 6 Enhanced Corrections members will be under S.507-a and S-507-c.

Cost Tracking for the Enhanced Benefits

The initial cost for these benefits was quoted in the union petitions as 1.3% for Sanitation members and 0.8% for Corrections members. There was no actuarial justification given for these percentages. At first blush, the Corrections enhancement should have been more expensive than the Sanitation enhancement. The lack of justification is a serious problem because this benefit structure now has two guarantors, the city, and the members. This is a radical change from all other NYCERS benefits where the city is the sole guarantor.

The actuary did not publicly report his analysis of these initial cost percentages.

My rough estimates of the increased cost for the enhanced benefits are:

1. Sanitation S.506 – 45% (dropping SS offset and switching to COLA)
   • With $90,000 FAS and $10,000 50% SS
   • Basic Tier-6 $19,970 plus Escalation
   • Enhanced $29,870 plus COLA
2. Sanitation S.507 – 86% (dropping SS Offset, switching to COLA, and 50% to 75%)
   • With $90,000 FAS and $10,000 50% SS
   • Basic Tier-6 $35,000 plus Escalation
   • Enhanced $67,500 plus COLA
3. Sanitation S.507 – 86% (Heart Bill - dropping SS Offset, switching to COLA, and 50% to 75%)
   • With $90,000 FAS and $10,000 50% SS
   • Basic Tier-6 $0
   • Enhanced $67,500 plus COLA
4. Corrections S.506 – 45% (dropping SS offset and switching to COLA)
   • With $90,000 FAS, $10,000 50% SS, and $10,000 - 100% WC
   • Basic Tier-6 $9,970 plus Escalation
   • Enhanced $19,870 plus COLA
5. Corrections S.507 – 24% (dropping SS Offset, switching to COLA)
   • With $90,000 FAS and $10,000 50% SS, and $10,000 - 100% WC
   • Basic Tier-6 $25,000 plus Escalation
   • Enhanced $35,000 plus COLA
6. Corrections S.507 – 100% (for Heart Bill)
   • With $90,000 FAS and $10,000 50% SS, and $10,000 - 100% WC
   • Basic Tier-6 $0
   • Enhanced $35,000 plus COLA
7. Corrections S.507-a – 100%/100% (adding benefit and switching to COLA/and adding Heart Bill)
   • With $90,000 FAS
   • Basic Tier-6 $0
   • Enhanced $29,970 plus COLA
8. Corrections S.507-c – 100%/100% (adding just benefit/adding Heart Bill and other special presumptions)
   • With $90,000 FAS and $10,000 100% WC
   • Basic Tier-6 $0
   • Enhanced $57,500 plus COLA

For example, the Sanitation S-507 enhancement benefit would go from $35,000 to $67,500 per year. With an annuity factor of 13, the difference of $32,500 per year would produce an added pension reserve cost at retirement of roughly $422,000 which would have to be withdrawn from the Sanitation AMC fund. This amount would actually be some what smaller because of the ecalation replacement.

As per the unions’ benefit petitions, the actuary is supposed to evaluate the cost distribution every three years and if needed, adjustthe payroll contribution rate. As such, he needs to notify NYCERS of his analysis. There has been no public reporting on this evaluation since 2016.

Neither the NYCERS annual financial statement nor the actuary’s annual valuation report have ever mentioned this tri-annual calculation.

Documents from the Actuary

Following my request to NYCERS, I requested the actuary to send me documentation on how he was tracking the costs for the enhanced benefits and any instructions he had received from the NYC Law Department about the enhanced benefits.

While the actuary sent me some documents, he was evasive about how he produced the numbers he was sending to NYCERS claiming the determination was done by the software package that he uses.

I am not sure he realized I was the former executive director at NYCERS, but he definitely was dodging about how the cost allocations were being done.

He did, however, send me a copy of a May 2, 2025, letter he sent to NYCERS concerning the payroll rates for the 2025-2028 time period.
The letter stated that the new Sanitation rate is 1.4% and the Corrections rate is 1.3%.
The letter also stated that NYCERS had reported 23 Sanitation members, and 114 Corrections members had retired with enhanced disability benefits as of June 30, 2024.
This appears to be consistent with the fact that Corrections enhanced benefits are better than Sanitation enhanced benefits.

The letter reported that 5,035 Sanitation members and 2,771 Correction members were part of the enhanced benefit program as of June 30, 2024. These figures are not consistent with data in the paragraph below.

As per the NYCERS 2024 financial statement, on June 30, 2024, there were 7,572 active Sanitation members and 6,738 Corrections members of which 4,438 Sanitation members and 4,526 Corrections members had less than 14 years of service. Tier 6 has been in force for over 13 years.

Strangely, NYCERS states in its annual financial report that the Tier 6 Corrections and Sanitation enhanced disability AMC’s are capped at 3%. Section 1323 of the RSSL, however, provides no limiting provision for the amount of AMC payment required for enhanced benefits.

In contrast, Tier 6 Police and Fire members have statutory enhanced disability benefits for which that they have to pay AMC’s but the payroll contributions are capped at 3% by law.

The AMC Fund

In a separate spreadsheet the actuary sent to me, he indicated that as of June 30, 2024 the AMC amounts collected were:

• $38,879,205 for Sanitation members and
• $27,003,007 for Corrections members.

There does not appear, however, to be any accounting for the AMC funds in the NYCERS financial statement in a manner similar to the VSF funds. Such accounting would include income statements, earnings, deposits, withdrawals, tax deferrals, and how the fund is being invested. Who is the trustee of this fund? What interest rate does NYCERS credit to the individual member accounts?

Renegotiating the Benefits

There is a claim in all of the unions benefit petitions that if the AMC cost rate exceeds 3%, the unions have the option to reopen negotiations concerning the enhanced benefits with the possibility of modifying or terminating the benefits. This is only an option and the mayor is not bound to any action. If the mayor were to take any action, it would create administrative problems.

Update: Appeal - June 10 - Nespoli Case - Trial Court Decision (May 11, 2021) - Tier 6 - Sanitation - Corrections - DA Investigators

Update

The decision was appealed on 6/10/2021 -- Check index number = 159601-2016

Decision

Finally on May 11, 2021 the trial court issued a decision on the Nespoli Tier 6 case.

After four and half years the judge got it wrong and decidied in favor of NYCERS.

The five page decision was particularly flimsy considering that he took four and half years to write his decision. He basically said that NYCERS is the expert and he sees no reason to overturn the agency's decision.

He ignores the fact that the agency made one decision in 2012 and then changed its position in 2016. That does not sound like the agency is an expert.

He also ignores the NYS Constitution prohibiting the impairment of pension rights.

For argument's sake, let's assume that NYCERS got it wrong the first time. NYCERS should then have presented a well-reasoned explanation of why it changed its mind. The judge did not state any rationale presented by NYCERS supporting its change in position. He only quoted a definition from the Tier 6 law and said that the NYCERS interpretation of the definition was rational. He just deferred to NYCERS without any analysis.

Simple Analysis of the Tier 6 Law

I was the NYCERS expert for 14 years from 1990 to 2005.

Here is my analysis of the Tier 6 Sanitation/Correction/DA-Investigator Issue.

As background, the 2012 Tier 6 legislation was a 100 plus page law that tried to retrofit restrictions on many existing NYS pension laws instead of starting from scratch and creating a standalone tier with reduced benefits for new members. It would have been much easier to write the law and much easier to administer it.

Currently as part of the Tier 6 law,

Section 600 of the RSSL reads as follows:

§ 600. Application. a. Notwithstanding any other provision of law, the provisions of this article shall apply to all members who join or rejoin a public retirement system of the state on or after July first, nineteen hundred seventy-six and to all employees who would have been eligible to join or rejoin such a retirement system on or after such date but in lieu thereof elected an optional retirement program to which their employers are thereby required to contribute,

except the following:

1. Members of the New York state and local police and fire retirement system;

2. (a) Members in the uniformed personnel in institutions under the jurisdiction of the department of corrections and community supervision of New York state, other than certain persons as defined in this section or the New York city department of correction. ... 3. Members of the New York city police pension fund or the New York city fire department pension fund; 4. Members qualified for participation in the uniformed transit police force plan or housing police force plan in the New York city employees' retirement system;

5. Investigator members of the New York city employees' retirement system; and

6. Members of the uniformed force of the New York city department of sanitation who join or rejoin a public retirement system of the state on or after April first, two thousand twelve.

In the event that there is a conflict between the provisions of this article and the provisions of any other law or code, the provisions of this article shall govern.

Section 440.e of the RSSL reads as follows:

e. Notwithstanding any other provision of law to the contrary, the provisions and limitations of this article shall apply, as may be appropriate, to all investigator members of the New York city employees' retirement system

who last joined such retirement system on or after July first, nineteen hundred seventy-six, and

prior to the effective date of the chapter of the laws of two thousand twelve which amended this subdivision.

and Section 501a.6 reads as follows

25. "New York city uniformed correction/sanitation revised plan member" shall mean a member who becomes subject to the provisions of this article on or after April first, two thousand twelve, and who is a member of either the uniformed force of the New York city department of correction or the uniformed force of the New York city department of sanitation.

Quite simply Tier 6 clearly allows NYCERS members who join a pension plan prior to 4/1/2012 to stay in Tier 4 (or Tier 2) even if they become Sanitation workers (or DA-Investigators) after 4/1/2012.

Since 1983, the start of Tier 4, a NYC Correction Force worker have been exluded from Tier 4 and forced into Tier 3. So that a NYCERS member who joined a NY public pension plan before 4/1/2012 and then became a Correction Officer would have been forced into Tier 3 with his/her original membership date. This would mean that the member became subject to Article 14 before 4/1/2012 and therefore not fall under the definition of a revised plan member.

It is therefore clear that Tier 6 respected the NYS Constitution's pension protection. All the petitioners specifically joined a NY public pension plan before 4/1/2102. By the wording of the Tier 6 law, they are not included in the new Tier 6 pension benefit structure. There is no issue here. NYCERS needs a class in reading comprehension.

The Key Point

Of course, the key issue in this case is not the wording of the Tier 6 law but the protection of pension rights by the NYS Constitution. As of the date a person becomes a member of NYCERS, the NYS Constitution prevents all subsequent legislation from diminishing or impairng the member's pension benefits. That means that Tier 6 legislation can have no negative impact on pre-April 1, 2012 NYCERS members nor members of any of the other six NY public pension plans. This is black letter law in New York State. The judge never addresses the key issue in this dispute.

This decision must be appealed but time drags on for the members being pounded by NYCERS

Tier 6 - The New 3/4 Accident Disability Benefits - What Will Members Pay?

On June 6, 2016 the mayor announced an agreement with the unions representing the Uniform Forces of Fire, Sanitation, and Corrections granting their Tier 6 members a ¾ accident disability benefits under Tier 6.

The Uniform Fire Force

The benefit for the Uniform Fire Force needed subsequent state legislation, Chapter 298 of the Laws of 2016. It will cost eligible firefighters 2% of payroll every year to start. As of 9/18/2019 the actuary will review the cost of the program and I am quite certain the cost will rise to 5%. Luckily for firefighters the cost is capped at 5%.

Chapter 298 also created a new agency to administer the Fire pension fund staffed with personnel from the internal pension division within the Fire Department.

When members are paying 5% per year for the benefit, I guarantee you that the number of accident disability awards at the FDNY will greatly increase from the current level of 57% of retirees (9,842 out of 17,261 as of FY-2015). God help the funding level at the FDNY-PF.

The Uniform Sanitation and Correction Forces

In contrast to Fire, the benefits for the Uniform Sanitation and Correction Forces utilized Article 25 of Tier 6 to authorize the new benefit. See the recap below. In this structure there is no cap on the costs that the eligible members will have to pay for the new accident disability benefit.

In 2012, as part of the Tier 6 legislation, the legislature added three new parts to the RSSL, Articles 23, 24, and 25. Articles 23 & 24 apply to the NYSLERS. Article 25 applies to NYCERS, NYCTRS, and BERS.

The idea behind these new articles is to provide the state and the city with the right to grant pension benefits to bargaining units with the provision that the members getting the new benefits would pay for the full cost of the granted benefits.

At first look this might seem like a reasonable idea. It has, however, several potential problems.

Initially, the definition of the new pension benefit is not contained in state statute. I would assume the mayor will issue an executive order legally describing the benefit and giving public notice since there will inevitably be litigation arising from these benefits. (As of today there are no publicly available executive orders granting the new benefits.) In 2016, the Mayor issued executive orders under Article 25 for the Uniform Sanitation and Correction Forces.

Secondly it appears that only the state legislation can terminate these benefits. Without legislation the parties are locked into these benefit/funding arrangements, no matter how onerous.

Thirdly, the retirement system involved, in this case NYCERS, will have to set a contribution rate and a control system to insure that the members are paying for the cost of the benefit. This is something very easy to say but very hard to do.

To properly do this, NYCERS will have to carefully track each one of these new accident disability awards correctly determining the extra cost for each benefit and offsetting the reserve that has been built to cover this cost. The actuary will have to be very careful to correctly cost these benefits because the city can not pay for any of this added cost. The interest rate assumption and mortality tables will be crucial. You know there will be shortfalls all the time.

The Added Cost of the New Benefit

Let me give you an idea how much this benefit will cost. A current Tier 6 Sanitation member is eligible for a 50% accident disability benefit equal to 50% of his/her five year average earnings (FAS) reduced by 50% of his Social Security disability benefit. This is a rough description. The SS offset can get very convoluted. For the sake of simplicity and being conservative, let us assume that the final benefit after the offset would be 45% of the member’s FAS.

The new benefit will be 75% with no SS offset. That is a 30% increase in the lifetime benefit. For example, a member with a $70,000 FAS who is disabled at age 38 will see an annual increase of $21,000 in his accident disability benefit. The IRS 4% annuity factor at 38 is 19.1665. Together they create present value of $402,496. For this example let us assume 25 accident disability awards per year. This gives you an annual cost for the new benefit of $10,062,400.

There are approximately 7,000 Sanitation workers of which about 1,750 are in Tier 6 right now. That number grows by 350 per year. NYCERS must give the existing 1,750 members the option to elect this benefit. All new Tier 6 members will be forced to pay for the benefit. The cost divided into 2,100 workers is $4,830 per year. That is 6.9% of a $70,000 salary.

I suspect you already can see the tidal wave coming.

What NYCERS Is Charging

NYCERS has costed this benefit out at 1.3% of payroll for Sanitation and .8% for Corrections and stated that they will review the rate on 6/30/2019. It would be interesting to see the calculations that support these percentages. But I guess that would be too much information for the public to handle. Yeah, right.

The Sanitation rate will fund a benefit with an annual value of $1,911,000 (2,100*.013*$70,000)

• 2,100 workers
• 1.3% payroll deduction
• FAS: annual salary $70,000

This funds 4.75 accident disability pensions per year ($1,911,200/$402,496). What does NYCERS do if they have 10 accident disability pensions a year? What will NYCERS do on 6/30/2019 if they 15 or 20 unfunded accident disabilities? That could be a $8M deficit.

I suspect that there are approximately 350 Sanitation workers retiring each year. If they are a Tier 6 members, they now have an intense motivation to file for an accident disability pension. The moral hazard is very large.

I spent 20 years sitting at NYCERS Board meetings for disability benefits. The idea that there will only be 2.3 accident disability awards per year per 1,000 Tier 6 Sanitation workers is naïve.

If 7,000 Sanitation workers find themselves paying a substantial percentage of payroll for a ¾ accident disability benefit, they are going to file for it.

I won’t be 57% but NYCERS should be ready for at least 33%. They will work until they are injured. Members know how to maximize their pensions.

When a member pays for a benefit, he or she is going to get it, hell or high water. This will get very ugly. You can imagine if they have to pay 15% every year for this benefit.

Everyone should read about the Dallas Police and Fire Pension Fund to see how bad things can get when people are irresponsible about running a pension fund.

Recap of Article 25 of the NYS RSSL.

- The city of New York may elect to provide its employees benefit enhancements

- Such election may be made at the sole discretion of the mayor of the city of New York to the retirement systems upon receipt of a request from the collective bargaining organization,recognized or certified to represent such eligible employees, for such benefits.

- Upon election by the city of New York, the retirement system shall require additional member contributions to be paid by all eligible employees.

- The additional member contributions to be paid by eligible employees shall be of a level so that no additional contributions shall be paid by the city of New York to cover the cost of such additional benefits.

Structure of the CO-VSF

The CO-VSF Board has five trustees, the NYCERS chair(one vote), the Comptroller (one vote), the Finance Commissioner (one vote), the head of COBA (one & half votes) and the head of the Correction Captains union (half vote). By statute the NYCERS actuary is the actuary for the Co-VSF. I am not sure when the CO-VSF Board last met. This board along with the actuary should be publicly informing the CO-VSF retirees what is happening with the 2016 payments and providing them with supporting documentation. With modern technology this is an easy lift.

CO-VSF is required to publish a financial statement every year in the City Record - NYC Admin Code - § 13-194.7

7. The variable supplements board shall publish annually in the City Record a report for the preceding year showing the assets of the correction officers' variable supplements fund and a statement as to the accumulated cash and securities of such fund as certified by the comptroller, and shall set forth in such report such other facts, recommendations and data as the board may deem pertinent.

NYS DFS has issued only one audit of the CO-VSF system.

The following text is from that audit:

A. History

Chapter 657 of the Laws of 1999 established the Correction Officers Variable Supplements Fund (“COVSF” or the “Fund”) and the Correction Captains’ and Above Variable Supplements Fund (“CCAVSF”). Chapter 255 of the Laws of 2000 (“Chapter 255/00”) combined the COVSF and the CCAVSF into one amended fund (Correction Officers Variable Supplements Fund) effective December 29, 1999.

The Fund operates pursuant to the provisions of Title 13, Chapter 1 of the Administrative Code of the City of New York (“ACNY”). It provides supplemental benefits to members of the Uniformed Correction Force (“UCF”) that retire on or after July 1, 1999, with 20/25 or more years of service from the New York City Employees’ Retirement System (“NYCERS”).

Under current law, the Fund is not to be construed as constituting a pension or retirement system. Instead, it provides supplemental payments, other than pension or retirement system allowances, in accordance with applicable statutory provisions. The New York State Legislature has reserved to itself and the State of New York the right and power to amend, modify, or repeal the Fund and the payment it provides.

Correction Officer VSF (COVSF) Payment for 2016

The NYCERS Board had their November Regular Meeting last Thursday. In the last 5 minutes of a two hour long meeting the actuary's representative dropped a bomb on the retired Correction Officers. They were not going to get their VSF payment this year.

Last Saturday my blog got inundated with hits, almost a thousand inquiries on my most recent posting on NYCERS's poor investment performance in FY-2016. Guess who gets hammered when NYCERS trustees screw up? Not the trustees but the retired Correction Officers.

Also something funny happened in FY-2016. NYCERS clawed back $52.724M from the COVSF. You can see in my previous posting the regular "skim" to the COVSF for the last six years.

COVSF History 2013-2016

Year	Open Balance	Interest Earned	"Skim"	Payments	Close Balance
FY-2013:	$35.925M	$0.038M	$0.000M	$0.000M	$35.963M
FY-2014:	$35.963M	$0.020M	$190.000M	$38.014M	$187.969M
FY-2015:	$187.969M	$0.010M	$30.012M	$78.285M	$139.706M
FY-2016	$139.706M	$0.184M	-$52.7240M	$82.149M	$5.017M
FY-2017

NYC Law Department

I have previously written about the inherent conflict of interest in the NYC Law Department. You would think that the lawyers at the Law Department represent the citizens of New York City and their best interests. You would also think that full disclosure is in the best interest of the citizens on New York City.

On September 21, 2014 NY Times published an article about a scandal at the NYC Department of Corrections concerning a falsification of official records in 2011. In 2012, when the fraud was discovered by DOC investigators, the Corrections Commissioner chose to radically alter the investigatos' report by erasing all damaging information relating to the roles of the two senior DOC managers involved. She had previously promoted those managers.

The following is a quote from that article:

The audit’s authors said that the testimony of both Mr. Clemons and Mr. Gumusdere pointed to a “complete abdication” of their obligations as managers, recommending that both be demoted “based on their admitted lack of attention to critical duties and responsibilities of jail management.”

Then Ms. Schriro intervened. After consulting with the department’s legal counsel, and being told she had the authority to alter the report, she ordered the reference to demotion removed, Ms. Schriro said. She also directed the investigative division to remove large portions of the most critical material involving Mr. Clemons and Mr. Gumusdere, including the statement that “it defies logic to think that they could have concluded that the number of fights RNDC reported during these months was accurate.”

...

In February 2013, as part of their civil rights investigation, the federal authorities made a detailed request to the city for documents related to the use of force by guards on teenage inmates and violence between the adolescents. The request included “all” documents related to audits and reviews to assess the accuracy and integrity of reporting on such incidents, including, but not limited to, “working papers and any other documents reflecting findings or recommendations,” according to one person who was told of the request.

A city Law Department official said on Friday that the first version of the report was not produced in response to the original federal requests because it was treated as a draft and seen as privileged. Last week, the United States attorney’s office specifically requested it from the city, and the current corporation counsel, Zachary W. Carter, decided that it should be turned over — and it was, the official said.

It is clear that the Law Department under the Bloomberg administration withheld significant evidence from federal authorities who were investigating serious allegations about activities at the NYC Department of Corrections during the Bloomberg administration. The reason given, that the original audit with specific supporting details was a draft and privileged, is what you might expect from a lawyer in private practice. The citizens of New York City, however, are entitled to have their attorneys represent their best interests and not the Commissioner of Corrections or city hall.

The current Corporation Counsel, a former US Attorney in the Eastern District, has now turned over the "privileged" report to the federal authorities.

As a general principal the public has a right to see everything that our government does as outlined in our freedom of information laws. The attorney at the Department of Corrections who signed off on the altered report and the lawyers at the Law Department who labeled the report as privileged should be fired for incorrect legal decisions. And we all know that what they did should be considered illegal.