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Wednesday, July 23, 2014

Wrongfully obtaining and divulging confidential information from a department’s computer database


Wrongfully obtaining and divulging confidential information from a department’s computer database
2014 NY Slip Op 04421, Appellate Division, First Department

In this appeal the Appellate Division affirmed the termination of a police officer [Officer] but awarded the individual “back pay for the period in which he was suspended without pay beyond the 30 days permitted by Civil Service Law §75(3-a).”*

Following a disciplinary hearing, the hearing officer sustained three of the charges filed against Officer: that Officer wrongfully accessed and subsequently obtained confidential information from the agency's Computer System and which was not related to the official business of the Department; Officer did wrongfully divulge or discuss official Department business without permission or authority to do so; and that “with intent to obtain a benefit or deprive another of a benefit, ... [Officer] obtained confidential information” from the Computer System, which was not related to the official business of the Department and divulged said information to another police officer.

The Appellate Division rejected Officer’s argument that his actions did not constitute official misconduct because there is no evidence that he acted "with intent to obtain a benefit or deprive another person of a benefit" (see Penal Law §195.00[1]).

The court explained that the term “Benefit” means “any gain or advantage to the beneficiary and includes any gain or advantage to a third person pursuant to the desire or consent of the beneficiary," citing Penal Law §10.00[17]. This "includes more than financial gain and can encompass political or other types of advantage."

Here, said the Appellate Division, it can be reasonably inferred that Officer intended to obtain a benefit for his fellow officer and friend within the meaning of the statute when he accessed confidential information in the computer system and confirmed for the friend the scope of the allegations of the complainant in the disciplinary investigation against him.

Under the circumstances, the Appellate Division held that “The penalty of termination is not so disproportionate to the offense as to be shocking to one's sense of fairness,” citing Kelly v Safir, 96 NY2d 32,

Officer, said the court, “betrayed his position of trust as [an individual] who was privy to very sensitive information, and breached his confidentiality agreement with the police department, which stated that the wrongful disclosure of information would not be tolerated by the department and that divulging or discussing official department business except as authorized, constituted prohibited conduct and might constitute official misconduct under Penal Law §195.00(1).

* The appointing authority conceded that Officer was entitled to back pay for the period of time for which he was suspended without pay in excess of 30 days.

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