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N.B. §22 of New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL typically follows this protocol.
NYPPL's most recent posting is set out below.
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
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.
The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in
A Reasonable Disciplinary Penalty Under the Circumstances - Determining an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html
Disability Benefits for fire, police and other public sector personnel - Addresses retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information click on http://booklocker.com/books/3916.html
The Layoff, Preferred List and Reinstatement Manual -Focusing on relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html
SELECTED REFERENCES and BLOGS
- A Handbook addressing disciplining public employees
- A Handbook focusing on imposing reasonable disciplinary penalties
- A Handbook focusing on layoff and reinstatement
- A Handbook on Disability Benefits for public employees
- A sample personnel handbook
- Blogging Administrative Law
- Blogging Civil Rights Law
- Blogging Constitutional Law
- Blogging Disability Law
- Blogging Education Law
- Blogging Employment Law
- Blogging Government Law
- Blogging Human Rights Law
- Blogging Legal Information
- Blogging Military Law
- Blogging public libraries
- Catalog of Law Blogs
- Challenging Adverse Personnel Decisions
- Delaware Employment Law Blog
- Gotham schools newsroom - A NYC school news blog
- New York City ERS blog - by John Murphy
- NY Municipalities - NYMUNIBLOG
- ReformNY - by NYU's Brennan Center for Justice
- St. Lawrence County Civil Service Web Site
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Text prepared by Harvey Randall except as otherwise noted. Randall, former Principal Attorney, New York State Department of Civil Service, also served as Director of Personnel for the State University System; as Director of Research, Governor’s Office of Employee Relations; and as Staff Judge Advocate General, New York Guard. He has an MPA from the Maxwell School, Syracuse University and a J.D. from Albany Law School.