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April 5, 2010

Seeking payment for attorney fees encumbered by a state officer or employee in defending a criminal complaint involving the individual as a defendant

Seeking payment for attorney fees encumbered by a state officer or employee in defending a criminal complaint involving the individual as a defendant
Police Benevolent Assoc. v. Vacco, App. Div., 253 A.D.2d 920; Leave to appeal denied, 92 N.Y.2d 818

Robert C. Gregory, a New York State Trooper, was indicted by a Westchester County Grand Jury for the crimes of tampering with public records in the first degree, offering a false instrument for filing in the first degree, tampering with physical evidence and official misconduct.

All these charges stemmed from his investigation of a hit and run accident that occurred in the Town of Cortlandt, Westchester County.

Criminal charges against Gregory were dismissed. Meanwhile, in accordance with Public Officers Law Section 19(2)(b), Gregory sent a letter to the State Attorney General applying for reimbursement for reasonable counsel fees and litigation costs incurred in the defense of the charges against him.

The Attorney General denied Gregory’s request on the grounds that tampering with physical evidence and official misconduct did not arise out of an act that occurred within the scope of Gregory’s public employment and duties. Furthermore, the Attorney General said Gregory was not entitled to reimbursement because he did not request reimbursement within 10 days of his arraignment as required by Public Officers Law Section 19.*

Gregory sued and a State Supreme Court justice vacated the Attorney General’s determination. The Attorney General appealed.

In a 4 to 1 decision, the Appellate Division affirmed the lower court’s ruling. Finding that the Attorney General’s denial of Gregory’s request “lacked a rational basis,” the Appellate Division affirmed the Supreme Court’s judgment, citing Pell v. Board of Education, 34 NY2d 222, 231.

The Pell decision, which applies a “shocking to one’s sense of fairness” test, is often cited in appeals from disciplinary actions.

As to the timeliness argument raised by the Attorney General, the Appellate Division said that it has held “that similar provisions contained in Public Officers Law Section 17(4) and Section 18(5) are not to be construed as a condition precedent to suit” and it saw “no reason for treating the notice provision of Public Officers Law Section 19 (3)** differently....” Accordingly, the court held that Gregory’s one-day “failure to comply with its requirements is not a bar to this proceeding.”

* Gregory had requested reimbursement after 11 days after his arraignment.

** Section 19 of the Public Officers Law provides, in pertinent part that “it shall be the duty of the state to pay reasonable attorneys' fees and litigation expenses incurred by or on behalf of an employee in his or her defense of a criminal proceeding in a state or federal court arising out of any act which occurred while such employee was acting within the scope of his public employment or duties upon his acquittal or upon the dismissal of the criminal charges against him or reasonable attorneys' fees incurred in connection with an appearance before a grand jury which returns no true bill against the employee where such appearance was required as a result of any act which occurred while such employee was acting within the scope of his public employment or duties unless such appearance occurs in the normal course of the public employment or duties of such employee.

Public Personnel Law E-books

The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 700 page e-book. For more information click on http://booklocker.com/books/5215.html

A Reasonable Disciplinary Penalty Under the Circumstances - A 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. For more information click on http://booklocker.com/books/7401.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

General Municipal Law §§207-a and 207-c - Disability Leave for fire, police and other public sector personnel - A 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

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