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Monday, April 29, 2013

An employee is entitled to be defended at the employer’s expense notwithstanding that their action “while discharging their duties” violated a law, rule or regulation


An employee is entitled to be defended at the employer’s expense notwithstanding that their action “while discharging their duties” violated a law, rule or regulation

The Court of Appeals ruled that employees of the New York City Department of Education [DOE] who are sued for using corporal punishment are entitled to a defense provided by the City notwithstanding the fact that the employees' conduct violated a State regulation.

Both employees, paraprofessionals serving with the New York City schools, were defendants in civil suits brought by students who alleged that the employees hit them.

Although the employees do not dispute that the actions they were found to have committed violated a Rule of the Board of Regents, 8 NYCRR 19.5 (a), which prohibits corporal punishment, they asked the City to defend them in the civil actions brought against them.

The City of New York rejected their requests for it to defend them in the civil lawsuits. Supreme Court held that the City should provide for their defense; the Appellate Division reversed the Supreme Court’s ruling. The Court of Appeals reversed the Appellate Division’s determination.

The employees contended that they were entitled to having the City provide for their defense pursuant to Education Law §3028, which provides:

"Notwithstanding any inconsistent provision of any general, special or local law, or the limitations contained in the provisions of any city charter, each board of education, trustee or trustees in the state shall provide an attorney or attorneys for, and pay such attorney's fees and expenses necessarily incurred in the defense of a teacher, member of a supervisory or administrative staff or employee . . . in any civil or ciminal [sic] action or proceeding arising out of disciplinary action taken against any pupil of the district while in the discharge of his duties within the scope of his employment . . ." (Emphasis supplied by the Court of Appeals).

The court said the controlling issue is whether the actions that resulted in the students' lawsuits against the employees were taken "while in the discharge of [their] duties within the scope of [their] employment," as required by §3028. Although the City conceded that the employees were acting within the scope of their employment, it argued that the statutory words "discharge of . . . duties" have a more restrictive meaning, and that an employee who is violating his or her employer's regulations cannot be acting in the "discharge of [her] duties."

The Court of Appeals rejected the City's argument, explaining that "Scope of employment," "discharge of duties" and similar phrases have long been regarded as interchangeable, citing Joseph v City of Buffalo, 83 NY2d 141. Accordingly, the court concluded that the authors of Education Law §3028 “intended to provide a defense even where an employee's use of corporal punishment violated regulations.”

In the words of the Court of Appeals, “Section 3028 requires the City to provide an attorney not just in civil, but also in criminal cases — suggesting that the Legislature wanted even employees who engaged in highly questionable conduct to be defended at public expense. If the 1960 Legislature meant to exclude cases in which corporal punishment was forbidden by regulation — as it was in New York City when §3028 was enacted — it could have done so explicitly.”

The decision is silent with respect to the indemnification of the employees in the event either or both employees are held liable for damages in the civil actions giving rise to these appeals

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_02775.htm


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Electronic books [e-books] focusing on New York State and Municipal Public Personnel Law:

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. A 1900+ page e-book. For more information click on http://booklocker.com/books/5215.html

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://nypplarchives.blogspot.com/

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