Law enforcement officers may be held to higher standards of conduct than other civil service employees

Law enforcement officers may be held to higher standards of conduct than other civil service employees

2014 NY Slip Op 04297, Appellate Division, Fourth Department

A County Correction Officer [Petitioner] was alleged to have violated departmental rules and regulations and, after an advisory arbitration hearing, was suspended from his position without pay for 45 days.

Petitioner initiated an Article 78 proceeding seeking a court order annulling the appointing authority’s determination. Supreme Court confirmed the determination with respect to two of the three charges. The third charge, which alleged misconduct with respect to Petitioner's voluntary, off-duty attendance at a social event hosted and, or, sponsored by the Hells Angels Motorcycle Club was annulled and the matter remitted to the appointing authority "to determine whether the penalty should be adjusted as a result" of the annulling of the finding of guilt with respect to the third charge.

The Appellate Division thought differently, concluding that the determination should be confirmed in its entirety; that the petition should be dismissed and the judgment of the Supreme Court modified accordingly.

The court said that the proper standard of review is whether there is a rational basis for the determination or whether it is arbitrary and capricious, and not whether the determination is supported by substantial evidence.

The Appellate Division explained that the hearing was mandated by a collective bargaining agreement and not required by statute or law. Thus [1] the “substantial evidence” test was not applicable in this instance and [2] both the determination of guilt and the penalty imposed are subject to judicial review.

Turning to the merits of the appeal, the court said that "[a]n action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts." Further, an agency’s determination "is entitled to great deference" if the reviewing court finds that the determination is supported by a rational basis and it “must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the agency."

The Appellate Division also commented that “it is well settled that law enforcement officers may be ‘held to higher standards than ordinary civil service employees’ and that an administrative determination regarding discipline will be afforded heightened deference where a law enforcement agency . . . is concerned."

Finally, the court said that the penalty is not "so disproportionate to the offense as to be shocking to one's sense of fairness," citing Matter of Pell, 34 NY2d at 222. In view of the fact Petitioner was a law enforcement officer with over 20 years of experience, the Appellate Division said that he should have known that his participation in a Hells Angels-sponsored event would raise, at the very least, an appearance of impropriety, and that such participation could potentially jeopardize his authority and effectiveness as a correction officer.

Noting that Petitioner was "unrepentant, insisting that his personal opinion of [Hells Angels] and its members was the only criterion upon which his conduct should be judged," the court said it found no basis to disturb the penalty imposed by the appointing authority.

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Employer entitled to reimbursement of the cost of post-employment health insurance benefits it erroneously paid on behalf of a former employee

Employer entitled to reimbursement of the cost of post-employment health insurance benefits it erroneously paid on behalf of a former employee
2014 NY Slip Op 04203, Appellate Division, Second Department

In this action a former employee [Plaintiff] of a municipal entity [Municipality] filed a petition in the nature of mandamus to compel her former employer to provide her with post-employment health insurance benefits.

Supreme Court granted the Municipality’s motion summary judgment dismissing [1] Plaintiff’s petition for a writ of mandamus and [2] her action alleging breach of contract.

The court then granted the Municipality’s counterclaim for the reimbursement of the cost of health insurance coverage that it provided to Plaintiff since December 31, 2009, a sum in the amount of $19,866.57. The Appellate Division affirmed the Supreme Court rulings, with costs.

The Appellate Division said that the Municipality had established its entitlement to judgment as a matter of law with respect to dismissing Plaintiff’s cause of action alleging breach of contract. The Court explaining that the municipality’s resolution providing employees of the employer with post-employment health insurance benefits was limited to “employees who are retired, eligible to retire, or have reached retirement age.”

The court said that the Municipality had established a prima facie case that Plaintiff was not a "retiree," as defined in the applicable regulations, 4 NYCRR 73.1[d], [e], [f]; 73.2[a][3][iv].  Plaintiff, on the other hand, said the court, failed to raise a triable issue of fact as to whether she was a retiree or the existence of any contractual right to the Municipality’s providing her with post-employment health insurance benefits.

Further, said the Appellate Division, citing Parkview Assoc. v City of New York, 71 NY2d 274, although the Municipality may have performed an act contrary to law or made an administrative error in commencing to pay post-employment health insurance benefits on behalf of Plaintiff, as a municipal entity:

1. The Municipality cannot be estopped from denying the existence of a contractual obligation to continue making those payments and

2. The Municipality cannot be held to have ratified any such contractual obligation.

As the Municipality had also made a prima facieshowing of its entitlement to judgment as a matter of law on its counterclaim for reimbursement of the amount it erroneously paid for Petitioner’s post-employment health insurance coverage and Plaintiff failed to raise a triable issue of fact, the Appellate Division ruled that the granting of summary judgment in favor of the Municipality on its counterclaim was also proper.

In seeking to vacate an arbitration award, the moving party must set out the grounds relied upon for setting the award aside

In seeking to vacate an arbitration award, the moving party must set out the grounds relied upon for setting the award aside

2014 NY Slip Op 04451, Appellate Division, First Department

The arbitrator had found the employee [Petitioner] guilty of certain disciplinary charges and had imposed the penalty of a thirty-day suspension without pay. A few months later Petitioner was again served with a notice of discipline and the arbitrator, finding Petitioner guilty of misconduct,  terminated his employmentt.

Petitioner appealed. Supreme Court dismissed his Article 75 petitions seeking to vacate the arbitration awards, which decisions the Appellate Division affirmed.

The Appellate Division explained that Petitioner failed to argue, “let alone set forth, any of the grounds for setting aside an arbitration award.” Further, said the court, Petitioner did not allege an statutory basis for vacating the award such as corruption, fraud or misconduct in procuring the award or partiality of the arbitrators, nor did he allege that the arbitrators exceeded their power, failed to follow the procedure set forth in CPLR Article 75, or that the award is irrational or violates public policy."

In the view of the Appellate Division, “Petitioners' allegations amount to nothing more than a claim that the arbitrators made errors of fact or law which, even if true, does not warrant vacatur of the awards.”