The exciting correlations of how attorneys for NYS Office of Court Administration are paid and how they suck up to the system - the "armadillo" correspondence continues

Yesterday, I published a blog describing how an attorney disciplinary prosecutor ducks FOIL requests by insinuating that it is not a prosecuting agency, but is "part of the court" - which, of course, makes the entire attorney disciplinary system in New York State void in view of the recent precedent of the U.S. Supreme Court Williams v Pennsylvania which makes void decisions produced by a court also acting as a prosecutor.

I compared the games of a public disciplinary prosecutor trying to wear an impossible combination of hats to Kipling's fairy tale where a hedgehog and a tortoise confuse a baby jaguar out of a hunting trophy, to the point of making his spots ache.

The confusion game continued today, when I received an e-mail letter from the Assistant Deputy Counsel for the New York State Court Administration Ms. Shawn Kerby, which I am publishing in full below. 

As a background note, Ms. Kerby has been handling FOIL requests directed at the New York State Office of Court Administration (my FOIL request was not directed at her client, only at the public prosecutor Attorney Grievance Committee of the 3rd Department) for years in my personal experience, and, likely, for decades judging on her length of employment with New York State Office of Court Administration.

Seethroughny.net only has records on salaries of public officials starting from 2008.

Here is the salary of attorney Shawn Kerby from 2008 to 2016, according to Seethroughny.net:

           Rate       Actually paid

2008	$ 115,000.00	$   85,631.00
2009	$ 115,000.00	$   82,739.00
2010	$ 115,000.00	$   82,829.00
2011	$ 115,000.00	$   92,238.00
2012	$ 115,000.00	$ 118,272.00
2013	$ 133,287.00	$ 154,488.00
2014	$ 140,248.00	$ 120,051.00
2015	$ 143,054.00	$ 123,507.00
2016	$ 145,916.00	$ 129,944.00

2008 - with the pay rate of $115,000 attorney Kerby was actually paid $85,631 for the year 2008, I wonder what caused a $29,369 cut.

2009 - attorney Kerby was paid even less, $82,739 - $32,261 less than the previous year's rate of pay.

2010 - attorney Kerby was paid $82,829, that is $32,171 less than her annual rate of pay. 

2011 - attorney Kerby was paid $92,238 against her annual pay rate of $115,000, and thus lost $22,762 that year:

So, in 2008-2011, attorney Kerby lost, respectively,

34.30%,

38.99%,

38.84%, and 24.68%

of her salary, which means she worked less than 2/3rds of her required work time per year in 2008 through 2010 and only 3/4 of the required time in 2011.

When a full-time worker consistently works less than full time (and is not fired) there should be a reason for it.


That is already very interesting, and shows attorney Kerby's dependency on what her client would tell her to do, legal or illegal. But, let's go on.

Also, note that in 2008-2011 attorney Kerby's salary, her annual pay rate, was stagnant at $115,000 per year.


In 2012, the rate was still the same, $115,000, but attorney Kerby not only worked 100% of her time that year, but actually made $3,272 in overtime:

After the revolutionary 2012 year, when attorney Kerby worked 2.77% more than required by her job, her pay rate jumped.  A lot. 

In 2013, attorney Kerby's annual pay rate was already $133,287, that is 15.9% more than the annual pay for the previous year.  Moreover, in the year 2013, attorney Kerby continued to put in overtime - she was paid $154,488 that year, a whopping $21,201, or 13.72% in overtime.

After 2013, the trend of salary increase continued, but the trend of putting in 100% of work time, and overtime, discontinued, and attorney Kerby returned to putting in less than 100% of her working time.

In 2014, attorney Kerby's pay rate further jumped to $145,916, a 6.05% increase as compared to the year 2013, and a $21.95% increase as compared to the years 2008-2011 when she consistently worked from 25% to 39% less of the time, until she put in a little overtime (less than 3%) in 2012, and then her salary started to rise.

Yet, in the same 2014, attorney Kerby returned to working less than full time in a full time job - she worked, and was paid, $20,197, or 16.82% less than her full annual rate pay, while her pay rate continued to increase.

This trend continued in 2015, when attorney Kerby's pay rate increased 2% as compared to the previous year, 2014 (when she worked less than full time) and 24.39% as compared to the stagnant stretch of 2008-2012 when she worked less than full time in 5 out of those 6 years.

At the same time her annual pay increased in 2015, attorney Kerby continued to work part-time in a full time job, losing $19,547, or 15.83% of her pay that year.

So, while working less, attorney Kerby continued to have her annual rate increase.

That trend continued in 2016, too, when attorney Kerby lost $15,972, or 12.29% of her annual pay, but got a 2% salary increase as compared to the previous year, 2015, and a 26.88% salary increase as compared to the stagnant stretch of 2008-2012.

What can I say?

It is a very nice job where an attorney is allowed to work less than 100% of the time in a full-time position that pays 3 times or more what an average New Yorker is paid, works MUCH less than full-time in 7 out of 9 most recent years of employment, and still receives pay raises.

Questions that arise is - who attorney Kerby is related to, and, if that is not about a relationship, how does this unusual leniency of her employer affects attorney Kerby's loyalty to the law above her loyalty to the employer, as required of her by her attorney oath of office?

Judging by the letter she has sent to me today by e-mail, her loyalty to her oath of office was firmly trampled in favor of her loyalty to her most lenient employer.

Here is what attorney Kerby wrote to me today about my FOIL request for motion records that an attorney prosecuting agency, the Attorney Grievance Committee for the 3rd Department (hereinafter ACG3) that was denied as a FOIL request and reiterated as a Judiciary Law 255 request, as if I was not asking a public prosecutor for public records, but I was asking a court for court records.

Here is attorney Kerby's letter:

I diligently followed the suggested links.

The link http://www.nycourts.gov/foil/ contains the following information

I did not ask "the Unified Court System" for any information, I asked a public prosecutor for information.

New York State Court Administration indicates, specifically, in so many words, that "court records, however, are not subject to disclosure under FOIL.  Public Officers Law 86". 

Yet, Public Officers Law 86 says nothing of the kind.  Here is what it does say:

Public Officers Law 86 says, in its subsection 4, that a "record" "means any information kept, held, filed, produced or reproduced by, with or for an agency".

So, if a record is kept by an agency (motion papers served by attorney Castillo upon ACG3 and kept on file with ACG3 as a prosecutor), or produced by an agency (opposition papers drafted by ACG3 and kept on file with ACG3), such records are clearly subject to FOIL requests.

So, attorney Kerby's claim that "the process regarding access to court records, to which FOIL does not apply, is set forth" by the New York State Court Administration in the way shown at the referenced link:



is frivolous and misleading, because:

1. No agency sets rules of access to records through FOIL, only the statute does; and because
2. FOIL does apply to court records, if such records are " kept, held, filed, produced or reproduced by, with or for an agency" (Public Officers Law 86) subject to FOIL - and a public prosecutor certainly is such an agency.

Yet, let's look at the second link that attorney Kerby referred me to:

I satisfied those requirements by specifically describing the records I was seeking, but, since I did not seek "administrative records" from the New York State Office of Court Administration, I did not need to file my FOIL request with Shawn Kerby directly - I only needed agency records from a public prosecutor, Attorney Grievance Committee for the 3rd Department.

So, here is what I replied today to attorney Kerby:

What is really going on here is that the New York judiciary is caught red-handed in a messy situation: exposure of the true reason why attorney regulation is handled by the judicial branch rather than the executive branch - which regulates all other 129 of the regulated professions in New York.

The reasons are quite simple: by placing regulation of attorney licenses with the judiciary branch, actors involved can "change colors" as it fits the situation:

1. they can claim to be prosecutors for purposes of - surprise! - prosecuting attorneys in disciplinary proceedings,
2. they claim to be prosecutors for purposes of claiming prosecutorial immunity in civil rights proceedings;

BUT, at the very same time they claim to be "part of the court" and thus not subject to FOIL requests if FOIL requests are filed with them as with any other prosecutor in the State of New York, where all prosecutors are agencies subject to FOIL requests.

Such a chameleon color-changing though creates a further mess, because, according to the latest U.S. Supreme Court precedent in Williams v Pennsylvania, 579 U.S. __ (2016), decided last June,

A prosecutor MAY NOT be "part of the court".

If any judge in any other court proceedings claims that one of the parties is "part of the court", he is subject to immediate disqualification.

Imagine a criminal proceeding where the District Attorney claims to be "part of the court" - for any reason and for any purpose.

There is nothing different when the government prosecutor is prosecuting a so-called "civil" case (while the U.S. Supreme Court long ago considered proceedings in attorney discipline quasi-criminal in nature).

A party has a constitutional right to an impartial court.

That right does not exist if a prosecutor claims to be "part of the court" for any purpose whatsoever.

Apparently, attorney Kerby, by trying to get one foot out of this conceptual sinkhole, is sinking her other foot there - and is acknowledging that the entire attorney disciplinary system in New York State is unconstitutional, as handled by "accuser-adjudicator" courts in violation of due process of law, and the recent precedent of the U.S. Supreme Court.

Attorneys who try to defend what judges consider indefensible (like, for example, in my case, for making motions to recuse a biased and corrupt judge), are sanctioned "for frivolous conduct" and suspended from the practice of law.

Yet, when an attorney who defends the court system itself does it, and does it on behalf of attorney disciplinary system, I am sure she is entitled to a medal.

Or a pay raise and more free time off work.