June 19, 2018

Determining if a police officer acted within the scope of his or her employment for the purposed of the employer providing for defense and indemnification


Determining if a police officer acted within the scope of his or her employment for the purposed of the employer providing for defense and indemnification
Lemma v Nassau County Police Officer Indem. Bd., 2018 NY Slip Op 04382, Court of Appeals

General Municipal Law § 50-1 provides for defense and indemnification of Nassau County police officers, requiring indemnification for civil "damages, including punitive or exemplary damages, arising out of a negligent act or other tort of such police officer committed while in the proper discharge of [the officer's] duties and within the scope of [the officer's] employment."

In this CPLR Article 78 proceeding, the issue is whether the Nassau County Police Officer Indemnification Board's determination revoking a prior defense and indemnification determination in favor of a Nassau County police officer, [Petitioner] was irrational. To answer that question, the Appellate Division said that it must determine the meaning of the phrase "proper discharge of . . . duties" in the context of this statute. Its conclusion: the Board's finding that Petitioner's conduct was not "proper" within the meaning of the statute was rational.

The genesis of this action was an arrest of one Raheem Crews [Crews] for a crime. A few days later, on June 1, 2005, Petitioner questioned another suspect, who admitted his own involvement but said that Crews was in jail at the time of the robbery. That same day, Petitioner confirmed via a police database search that Crews was incarcerated on the date of the robbery. Despite knowledge that Crews could not have been one of the perpetrators, Petitioner told no one.

It was not until September, after Crews was arraigned on an indictment listing the date of the robbery as March 26, 2005, that defense counsel demonstrated that Crews had been incarcerated on that date, securing his immediate release and dismissal of the charges.

Crews commenced an action in federal court pursuant to 42 USC §1983 against Petitioner, among others and Nassau County, unaware at that time that Petitioner had known and failed to disclose that Crews was in jail on the date of the crime, offered to represent and indemnify Petitioner pursuant to General Municipal Law §50-1, based on the Board's initial determination that any actions taken by Petitioner that might give rise to liability were within the scope of Petitioner's employment and a proper discharge of his duties. When some years later, as the result of Petitioner being deposed in the Crews case, it was revealed for the first time that Petitioner had learned a few days after the arrest that Crews was in jail on the date of the robbery, the Board reopened its decision to indemnify Petitioner and held a hearing. Ultimately the Board voted to revoke defense and indemnification.

In affirming the Board's decision, the Appellate Division held, among other things, that "the Board rationally interpreted General Municipal Law §50-1 to limit defense and indemnification, reasoning that the word "proper" was "added . . . to exclude indemnification for intentional misconduct."

Petitioner next sought permission to appeal the Appellate Division's ruling and the Court of Appeals granted Petitioner's motion.

The Court of Appeals affirmed the Appellate Division decision, noting that "Where, as here, no administrative hearing was required, judicial review of an agency determination is limited to whether the Board's determination was irrational or arbitrary and capricious." Citing Williams v City of New York, 64 NY2d 800, the court explaining that an administrative determination of a board or agency involving employee indemnification "may be set aside only if it lacks a factual [or legal] basis, and in that sense, is arbitrary and capricious."

Noting that General Municipal Law §50-1 authorizes Nassau County to defend and indemnify police officers named as defendants in civil actions or proceedings, providing indemnification from "any judgment . . . for damages, including punitive or exemplary damages, arising out of a negligent act or other tort of such police officer committed while in the proper discharge of [the officer's] duties and within the scope of [the officer's] employment" the statute provides that "[s]uch proper discharge and scope shall be determined by a majority vote of a panel" appointed by various Nassau County officials, the Court of Appeals concluded that "[t]he legislature, thus, left the determination of whether the statutory prerequisites are met to the discretion of the Board."

Significantly, the Court of Appeals said that "[t]he decision whether to defend and indemnify a police officer is typically made by the Board at the beginning of litigation or upon discovery of facts previously unknown — long before the facts are litigated and a judgment of punitive damages is ever rendered. The Board may take a different view of the facts than is ultimately adopted by a jury in the underlying civil action against the officer."

Concluding that the Board's determination that Petitioner's conduct was not in the "proper discharge of his duties" was not arbitrary and capricious and that there was evidence supporting the Board's finding the decision notes that "despite knowledge that Crews could not have committed the robbery for which he had been arrested and charged (and for which he remained in pretrial detention for four months), [Petitioner], by his own admission, remained silent — conduct antithetical to proper police work that resulted in a man's loss of liberty."

Holding that the Board's determination was rational, the Court of Appeal held that it was entitled to deference and must be sustained."

The decision is posted on the Internet at:

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