Administrative Law Judge recommended the employee's termination as the appropriate disciplinary penalty under the circumstances

New York City Office of Administrative Trials and Hearings Administrative Law Judge Kevin Casey recommended that a laboratory supervisor [Supervisor] at a New York City Hospital [Employer] be terminated from employment following a hearing on disciplinary charges filed against the Supervisor by the Employer.

Evidence in the disciplinary hearing record described more than 50 acts of misconduct spanning a 16-month period that the Employer alleged justified Supervisor being terminated from his employment at the facility.

The disciplinary charges and specification included allegations that the employee:

1. Repeatedly refusing to perform assigned tasks;

2. Falsified time-sheets;

3. Sent discourteous emails to[other] supervisors;

4. Was guilty of "excessive absence and lateness;"

5. Ignored orders;

6. Failed to attend scheduled meetings;

7. Changed shifts without approval; and

8. Had been absent without leave.

In recommending termination of Supervisor's employment, ALJ Casey noted that Supervisor had earlier been disciplined by the Employer and found guilty of charges alleging "similar misconduct."

Click HERE to access Judge Casey's decision. 

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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. 

Click on http://booklocker.com/books/7401.html for more information.

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Election Workers Webinar

The Internal Revenue Service's Tax Exempt and Government Entities Division invites interested readers to click here toregister to watch a free webinar that explains which workers should be treated as election workers and when taxes should be withheld from the wages of such personnel. 

The webinar will also cover what should be included in earnings.

For more information, see Webinars for Tax Exempt & Government Entities.

Liberal construction to be given to a remedial statute

The Workers' Compensation Board ruled, among other things, that a New York State Trooper [Plaintiff] assigned to a vehicle checkpoint was not a participant in the World Trade Center [WTC] rescue, recovery and cleanup operations and denied Plaintiff's claim for workers' compensation benefits based on his alleged exposure to toxins at the WTC site as untimely.

The Appellate Division said it agreed with the Board's finding that Plaintiff did not sustain an occupational disease, explaining:

1. "An occupational disease derives from the very nature of the employment, not a specific condition peculiar to an employee's place of work, nor from an environmental condition specific to the place of work;" and

2. "To establish an occupational disease, the claimant must demonstrate a recognizable link between his or her condition and a distinctive feature of his or her employment".

The Appellate Division, conceding that toxic substances were present in Plaintiff's work environment at WTC, the indicated the Plaintiff's "alleged disability arose from a specific condition peculiar to his place of work and not from a distinctive feature of his employment as a state trooper."

Turning to Plaintiff's argument that his claim was within the ambit of Workers' Compensation Law Article 8-A, the Board then treated the claim as one for accidental injury and disallowed the claim, finding it untimely.

The Appellate Division said that Article 8-A was enacted "to remove statutory obstacles to timely claims filing and notice for latent conditions resulting from hazardous exposure for those who worked in rescue, recovery or cleanup operations following the [WTC] September 11th, 2001 attack." Accordingly, the court held that "this legislation was intended to be liberally construed to provide a potential avenue of relief for workers and volunteers suffering from ill health as a result of their efforts in the aftermath of the terrorists attacks."

Noting that Plaintiff had testified that his duties at the checkpoint included stopping traffic and clearing routes for emergency and construction vehicles traveling to and from ground zero, the Appellate Division found that Plaintiff's "activities had a tangible connection to the rescue, recovery and cleanup operations at the WTC site."

The court then opined that "in light of the liberal construction afforded this remedial statute, "the Board's determination that Workers' Compensation Law Article 8-A does not apply because [Plaintiff] did not participate in the rescue, recovery and cleanup operations at ground zero is not supported by substantial evidence and, therefore, the claim should not have been disallowed as untimely under Workers' Compensation Law §28".

The Appellate Division then remitted the matter to the Workers' Compensation Board "for further proceedings not inconsistent with this Court's decision."

Click HERE to access the Appellate Division's opinion. 

 

Processing the application of an employee of Civil Service Law Section 71 accidental disability leave seekikng to return to duty

An employee [Plaintiff] employed by a state agency [Department] suffered a work-related injury and was placed on workers' compensation leave pursuant to Civil Service Law §71. Plaintiff regularly submitted medical documentation supporting her assertion that she was unfit to return to her employment. Department then notified Plaintiff that as she had been absent for one cumulative year, she would be terminated from her position. Department also advise Plaintiff that she could apply for restoration to duty if she was medically fit and directed her "to submit medical documentation clearing her to return to work before an examination was scheduled."

Plaintiff, however, ignored this directive and scheduled the medical examination on her own.* Upon learning of this, the Department, apparently relying on 4 NYCRR 5.4(d)(1),** cancelled the appointment and subsequently terminated Plaintiff 's employment after she declined to submit the requested medical documentation to the Department for review.

Plaintiff then commenced a CPLR Article 78 proceeding alleging that:

[1] the Department violated the Civil Service Law and its regulations;

[2] her termination was arbitrary and capricious;  and 

[3] her due process rights were violated. 

Ultimately Supreme Court dismissed Plaintiff's petition finding that it was not unreasonable, irrational or arbitrary for the Department to request certain medical information prior to making its preliminary determination as to petitioner's medical fitness to perform the duties of her position and that Plaintiff failed to demonstrate that the Department's request for medical documentation was an error of law.

Plaintiff appealed the Supreme Court's judgment, contending that 4 NYCRR 5.9 places no duty upon her to submit medical documentation in order to return to work. 

The Appellate Division disagreed, opining that 4 NYCRR 5.9(c)(2) provides that an  employee on §71 leave has a "right to apply to the appointing authority pursuant to subdivision (d) of this section for reinstatement to duty if medically fit" (emphasis added by the court).

The Appellate Division explained that the requirement that employee then on §71 leave to initially produce medical documentation showing the employee is medically fit to return to work "prior to scheduling a medical examination promotes an efficient procedure, in a fiscally sound manner, that is rationally related to the Department's interest in returning only medically fit employees to their duties."

Noting that the record indicated that Plaintiff never asserted that she was medically fit to perform her duties prior to her termination and that the only medical documentation presented to the Department for over one year consisted of statements from Plaintiff's own physician attesting that she was unable to return to work, the Appellate Division concluded that the Department's determination was not arbitrary and capricious or irrational.

Addressing Plaintiff's claim that the Department's failure to provide her with a medical examination violated her due process rights, the Appellate Division said that the record indicates that Plaintiff "received a pretermination notice that set forth the reasons she was being terminated, explained that she could apply for reinstatement if medically fit, requested her to produce medical documentation showing that she was fit and informed her that she was entitled to a pretermination meeting." 

Thus, said the court, Plaintiff's  due process rights were satisfied as she was provided [1] with an explanation of the grounds for discharge; [2] given an opportunity to respond prior to her actual termination; and [3] did in fact participate in a pretermination meeting.

* §71 of the Civil Service Law further provides that an individual terminated from the position pursuant to §71 may, within one year after the termination of the disability, make application to the civil service department or municipal commission having jurisdiction for a medical examination.

** 4 NYCRR 5.4(d)(1), Restoration to duty from workers' compensation leave, provides "(1) Upon request by the employee, the appointing authority, if satisfied that the employee is medically fit to perform the duties of the position, shall restore the employee to duty. If not satisfied that the employee is medically fit to perform the duties of the position, the appointing authority shall require the employee to undergo a medical examination, by a physician designated by the appointing authority, before the employee may be restored to duty. Prior to the medical examination, the appointing authority shall provide the designated physician and the employee with a statement of the regularly assigned duties of the position from which the employee is on leave."

Click HERE to access the text of the Appellate Division's decision. 

 

The Juneteenth National Independence Day Act established June 19th as a federal holiday.

Juneteenth, the federal holiday commemorating the end of slavery in the United States, is observed on June 19. President Joe Biden "signed the new holiday into law" on Thursday, June 17, 2021.

As it falls on a Saturday in 2021, Juneteenth is being observed by Federal employees on a workday, Friday June 18, 2021. 

On June 14, 2020, New York State Governor Andrew M. Cuomo signed into law legislation designating Juneteenth as an official public holiday in New York State. The Governor earlier issued an Executive Order recognizing Juneteenth as a holiday for New York State employees.

Other jurisdictions have designated Juneteenth as holiday by proclamation. 

For example, then Massachusetts Gov. Deval Patrick signed a proclamation recognizing Juneteenth as a holiday in Massachusetts in 2007 while Maryland Governor Larry Hogan  has announced that Maryland State government agencies and offices will be closed on Friday, June 18, 2021, in observance of Juneteenth National Independence Day and West Virginia's Governor Jim Justice issued a proclamation on June 18, 2021, officially declaring Juneteenth a State holiday in West Virginia.

 

Local law authorizing a "Police Accountability Board" to conduct police officer disciplinary hearings held invalid

A CPLR Article 78 proceeding initiated by the Rochesterpolice union, its president, and an individual Rochesterpolice officer [Plaintiffs] challenged the City of Rochester's Police Accountability Board's [PAB] authority to conduct disciplinary hearings and discipline officers of the City of Rochester Police Department." Supreme Court, among other things, declared parts of Local Law No. 2, which authorize and empower the PAB to conduct such hearing and discipline Rochester police officers, "void and unenforceable."

Supreme Court had agreed with the Plaintiffs and held the City's Local Law No. 2 violated the Taylor Law, Civil Service Law §75, and Unconsolidated Laws §891. The court also, sua sponte, "referred [Local Law No. 2] back to the Rochester City Council "to be reconciled and made compliant with New York State law and the Rochester City Charter."* The City Council appealed the Supreme Court's ruling.

The Appellate Division, noting that "the Rochester City Charter has been amended to grant virtually all authority for disciplining police officers to a new entity called the 'Police Accountability Board' [PAB]," opined that although "the politics swirling around this provision are weighty and fraught ... its legality is not" and held that Supreme Court "properly invalidated Local Law No. 2 insofar as it imbues PAB with disciplinary authority over Rochesterpolice officers without regard to collective bargaining."

The Appellate Division's decision explores the events leading to the establishment of the PAB, relevant law and court decisions, including two procedural issues, and the merits of the Plaintiffs' challenges to Local Law No. 2. 

* The Appellate Division held that Supreme Court "erred by referring Local Law No. 2 "back to the Rochester City Council to be reconciled and made compliant with New York State law and the Rochester City Charter."

The text of the Appellate Division's decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2021/2021_03787.htm.

 

Determining if a grievance involving a provision in a collective bargaining agreement is subject to arbitration

Supreme Court denied the petitioner's [Employer] CPLR §7503 application to permanently stay arbitration of a grievance between the Employer and the employee organization [Union] initiated pursuant to the collective bargaining agreement [CBA] between the parties. The grievance involved determining the correct amount of the employees' contributions for health insurance coverage. 

Although the Employer contended the grievance was not subject to arbitration, Supreme Court held that the grievance was arbitrable. Employer appealed the ruling.

Observing that the court's role in reviewing applications to stay arbitration is limited, the Appellate Division explained that the threshold issue is to determine whether the subject matter of the grievance is arbitrable. This, said the court, involves a two-part inquiry into whether there is [1] "any statutory, constitutional or public policy prohibition against arbitration of the grievance" and if no such prohibition is found, whether [2] the parties in fact "agreed to arbitrate the particular dispute" by examining the relevant collective bargaining agreement.

Noting that the Employer did not contend that arbitration of the grievance was prohibited by law or public policy, the court said that its inquiry distills to whether the parties agreed to arbitrate this particular grievance.

In the words of the Appellate Division, "[if] the CBA contains a broad arbitration clause, 'an agreement to arbitrate will be found by the court as long as there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA'".

Citing the relevant provisions set out in the CBA, the Appellate Division opined that as the grievance involves health insurance benefits, which are an employee benefit and an express provision of the CBA, the "grievance falls within the scope of disputes that the parties agreed to submit to arbitration." Further, the fact that the substantive clauses of the contract might not support the grievances is irrelevant on the threshold question of arbitrability and "it] is for the arbitrator, and not the courts, to resolve any uncertainty concerning the substantive rights and obligations of the parties."

Addressing the Employer additional argument in support of dismissing the Union's Article 75 petition contending that the grievance was untimely filed, the Appellate Division said "[A]ny argument concerning compliance with the grievance process, including any time limitations thereunder, is likewise a matter for the arbitrator to decide".

Accordingly, the Appellate Division concluded that Supreme Court properly denied the Employer's application to permanently stay arbitration.

Click HERE to access the Appellate Division's decision.

 

Hearing officer recommends dismissal of disciplinary charges after finding the employee did not used his position with his employer for personal or financial gain

New York City Office of Administrative Tribunals and Hearings [OATH] Administrative Law Judge Faye Lewis recommended that disciplinary charges against a Human Resources Administration [HRA] employee [Respondent] be dismissed as HRA failed to establish that the Respondent used his position in the agency for personal or financial gain.

HRA contended that the Respondent, a case manager assigned to a center in the Bronx, violated HRA rules and the City Charter by asking former colleagues to give his phone number to public assistance clients who might be interested in renting an apartment from him.

ALJ Lewis determined that HRA employees are permitted to rent property that they own or manage to public assistance recipients if they first submit a questionnaire for approval and that they do not work at the center providing the client’s benefits.

Respondent, said Judge Lewis, followed that procedure in that Respondent did not work at the center providing the client's benefit, and HRA had approved Respondent's request.

In addition, the ALJ noted that Respondent presented "unrefuted evidence that landlords who are not HRA employees have regular contact with case managers and could tell a case manager that they have available apartments to rent."

Accordingly, the Administrative Law Judge concluded that HRA did not establish that Respondent had violated its rules, nor those set out in the City Charter with respect to the rental of the property in question, that triggered the disciplinary charges served on the Respondent.

To access the text of Judge Lewis' decision, click HERE!

 

Custodian's reliance on a prohibition in a federal regulation to withhold certain documents within the ambit of the Freedom of Information Law held misplaced

The custodian of certain documents sought pursuant to the New York State Freedom of Information Law [FOIL] denied the access to the documents concerning an accident. The custodian argued that [1] "federal law prohibited [the custodian] from providing the requested documents" and [2] the "law enforcement exemption" applied in this instance.

Petitioner [Plaintiff] then initiated a CPLR Article 78 seeking a court order annulling the agency's decision. Supreme Court granted Plaintiff's application and the agency appealed. The Appellate Division sustained the lower court's ruling.

Conceding that Public Officers Law §87(2)(a) does permit the custodian of records sought pursuant to FOIL to deny access to records if they "are specifically exempted from disclosure by state or federal statute," the Appellate Division opined out that "no federal statute exists prohibiting [the custodians] from releasing [the] requested documents."

The court explained that although the federal National Transportation Safety Board had promulgated a regulation* that prohibits parties to its investigations "from releasing information obtained during an investigation at any time prior to the [National Transportation Safety Board's] public release of information ... a regulation is not a statute and, therefore, does not fall within the ambit of this narrowly construed exemption," citing Brownstone Publs. v New York City Department of Finance, 150 AD2d 185, leave to appeal denied, 75 NY2d 791.

Addressing the agency's alternative justification for its determination, its withholding the documents demanded pursuant to FOIL's "law enforcement exemption," the Appellate Division noted that Public Officers Law §87(2)(e)(i) exempts from disclosure those records, or portions thereof, that "are compiled for law enforcement purposes and which, if disclosed, would . . . interfere with law enforcement investigations or judicial proceedings."

However, said the court, in order to trigger the law enforcement exemption, the custodian of the record demanded is required to articulate a factual basis "identify[ing] the generic kinds of documents for which the exemption is claimed, and the generic risks posed by disclosure of these categories of documents."

Instead, said the Appellate Division, the agency "in conclusory and speculative fashion, averred that the exemption justified denial of access to the requested records, without providing factual assertions from anyone with personal knowledge demonstrating that the requested records were actually compiled for law enforcement purposes, either generally or specifically, in connection with the investigation of this accident."

* An Overview of Federal Regulations and the Rulemaking Process prepared by the Congressional Research Service is posted on the Internet at https://fas.org/sgp/crs/misc/IF10003.pdf.

Click HERE to access the Appellate Division's decision.

 

Audits and reports issued during the week ending June 12, 2021 by the New York State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending June 12, 2021.

Click on the text highlighted in colorto access the complete audit report.

Department of Agriculture and Markets: Oversight of the Farm-to-School Program (2020-S-9) The department needs to improve monitoring of both program expenditures and recipient performance to ensure recipients use funds as intended and achieve program goals. Auditors reviewed 21 (of 45) program contracts totaling approximately $2.27 million, of which $1.71 million had been expended as of February 2020. They found about $1.17 million (68 percent) in expenses for 17 contracts either lacked sufficient documentation to support expenses paid or were not authorized under the contract. 

City University of New York (CUNY): Compliance with Payment Card Industry Standards (Follow-Up) (2021-F-2) An audit issued in December 2019 found that CUNY had fallen short in providing its colleges with sufficient guidance and direction needed to ensure campus-wide compliance with payment card industry standards. In a follow-up, auditors found CUNY has made progress in addressing the findings identified in the initial report, but more needs to be done.

State Education Department (SED): Buffalo Hearing & Speech Center Inc. –  Compliance with the Reimbursable Cost Manual (2020-S-20) The center, a special education provider located in Erie County, provides preschool special education services to children with disabilities who are between three and five years of age in western New York. The center is reimbursed for these services through rates set by SED. For the fiscal year ended June 30, 2018, auditors identified $272,526 in ineligible costs reported by the center for reimbursement. SED also failed to offset $307,735 in Medicaid fee-for-service revenue received by the center when calculating its tuition rate. As a result, the center received $216,451 in excess public funding reimbursements. 

Department of Environmental Conservation (DEC): Compliance with Executive Order (EO) 95 (Open Data) (2020-S-11) EO 95 established an open data website for the collection and public dissemination of publishable state data maintained by state entities. Auditors found DEC has taken steps to meet the requirements of EO 95

Department of Motor Vehicles: Allocation, Billing, and Collection of Expenses of Administering the Motor Vehicle Financial Security Act and the Motor Vehicle Safety Responsibility Act (Follow-Up) (2021-F-3) An audit issued in December 2019 found that, in general, the department was appropriately allocating, billing, and collecting nearly all expenses related to administering the Motor Vehicle Financial Security and Motor Vehicle Safety Responsibility acts. However, it could better ensure the accuracy of its allocation and billing practices. In a follow-up, auditors found the department has made some progress in addressing the issues identified in the initial audit report and has partially implemented its two recommendations.

Metropolitan Transportation Authority (MTA) - Bus Company: Fare Evasion (2019-S-7) MTA officials also did not provide assurance that Fare Enforcement and Worker Safety Program was effective in achieving its goal of reducing fare evasion losses below 2017 levels ($150 million). Instead, the MTA estimated that it lost more than $300 million to fare evasion in 2019. Certain aspects of the transit system contributed to increased fare evasion and much of the fare evasion and payment signage auditors observed was defaced, misleading, not prominently displayed, or not translated into the appropriate language for the neighborhood.

Office for People With Developmental Disabilities (OPWDD): Accountability and Surplussing of Vehicles (Follow-Up) (2021-F-1) An audit issued in August 2019 found OPWDD lacks sufficient controls over fleet vehicle management to ensure that all vehicles are properly accounted for, that vehicles are used for official state business only, and that Developmental Disabilities Services Offices are properly surplussing vehicles following a process that is fair and complies with state requirements. In a follow-up, auditors found OPWDD has made some progress in correcting the problems identified in the initial report, but improvements are still needed.

Port Authority of New York and New Jersey (PANYNJ): Selected Aspects of Leasing Practices for Real Estate Department, Aviation, World Trade Center, and Leasing of Properties (2019-S-9) PANYNJ did not realize revenue of $8.3 million from four leases at the World Trade Center (WTC) during the period June 2014 through November 2019. This amount included money due to PANYNJ for utilities, amounts due when tenants terminated their leases early, and other percentages of revenues specified in leases. PANYNJ leased seven external spaces for its use within a half mile of 1WTC at a cost of $15.9 million, despite the fact that 1WTC was not fully occupied at the time. During a review of two sampled airport system leases, auditors found that a property leased from a municipality for future development of Newark Airport was later sub-leased to a private business for a for-profit purpose. 

Workers' Compensation Board: 2019 Annual Audit (2019-WCB-01) The board processed more than 580,000 claims totaling nearly $732 million from its four special funds in 2019 - the Uninsured Employers Fund, the Special Fund for Disability Benefits, the Second Injury Fund, and the Fund for Reopened Cases. Auditors identified 1,208 errors totaling more than $4.28 million as part of daily audits. In addition, they identified 917 product code errors totaling nearly $3.85 million.

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Find out how your government money is spent at Open Book New York. Track municipal spending, the state's 180,000 contracts, billions in state payments and public authority data. Visit the Reading Room for contract FOIL requests, bid protest decisions and commonly requested data.

Former public officer spent stolen public funds for such personal expenses as vacations, shopping and cooking classes

On June 11, 2021, State Comptroller Thomas P. DiNapoli and Cortland County District Attorney Patrick Perfetti announced that former Pharsalia Town Supervisor Dennis Brown pleaded guilty to stealing $240,000 in public funds and must now pay full restitution. The thefts were discovered through their joint investigation.*

“For decades, the residents of Pharsalia trusted Dennis Brown to safeguard taxpayer money, but instead he treated the town’s funds like a personal piggybank, pocketing over $240,000,” DiNapoli said. “We have no tolerance for abuse of the public’s trust and today Dennis Brown faces consequences for his crimes. My thanks to the New York State Police and to Cortland County DA Perfetti for partnering with us to uncover his corruption.”

“I acknowledge that this disposition was a long time in coming,” District Attorney Perfetti said. “I want to credit Assistant District Attorney Adam Ratner with leading extensive negotiations regarding the recovery of a substantial portion of what we would have been able to prove at trial. I hope that this case serves as a reminder to those who enjoy the honor of public service in that they execute their duties with the responsibility entrusted to them and that the public deserves.”

Brown pleaded guilty today in front of Judge Hon. Frank B. Revoir, Chenango County, to Grand Larceny in the Second Degree, as a crime of Public Corruption. He must pay $240,000 in restitution, of which he has already paid $125,000, and faces a potential state prison term at his sentencing, which is scheduled for Sept. 17, 2021.

Brown, 72, was arrested on April 10, 2019, after DiNapoli’s office, working with the State Police and District Attorney, found that he had inflated his salary and used the town credit card to pay for numerous personal expenses. He used public funds to pay for groceries, cooking classes, liquor store purchases, a subscription, gift shop purchases, clothes, designer handbags, jewelry, home utilities, work on his property and vacations.

He was the longest-serving town supervisor in Chenango County, in office for 35 years, until he lost an election in 2019. At the time of his arrest he was also a paid member of the county’s Board of Supervisors and served on its finance and public works committees. 

* As noted in previous NYPPL reports of such acts of misconduct, there is a term for such breaches of the public trust, "jobbery." Mirriam-Webster defines "jobbery as "the improper use of public office or conduct of public business for private gain".

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Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236 or filing a complaint online at investigations@osc.ny.gov.

Employee's claim for indemnification for legal expenses incurred in a criminal action for his alleged "unauthorized purchases using 'agency-issued' credit cards" rejected

A public authority [Employer] filed disciplinary charges filed against an officer of the Employer [Plaintiff] pursuant to Civil Service Law §75 alleging that Plaintiff had made a number of unauthorized purchases using "agency-issued" credit cards. Plaintiff was terminated and subsequently plead guilty to disorderly conduct in satisfaction of the criminal charges brought against him pursuant to §240.20 of the Penal Law.*

Plaintiff then demanded that the Employer indemnify him for, among other things, counsel fees incurred in defending himself in the criminal action by filing a claim pursuant to the Employer's Employees and Directors Liability Policy.** The Employer filed the claim and the insurance carrier declined coverage. The Employer rejected Plaintiff 's request for indemnification, contending it had no duty to indemnify employees outside the scope of its insurance coverage.

Plaintiff next commenced initiated a combined CPLRA 78 proceeding and action for declaratory judgment seeking, among other things, a declaration that he was entitled to indemnification by the Employer for his expenses, costs and counsel fees incurred in defending himself in the criminal action.

Although Supreme Court granted Plaintiff petition to the extent of declaring that Plaintiff was entitled to indemnification under the Employer's internal resolution providing for "indemnification", the Appellate Division reversed that ruling, explaining:

1. It agreed with Supreme Court that Plaintiff had "no statutory right of indemnification" under the otherwise pertinent provisions Public Officers Law §§17[3][a]; 18[4][a]; 19 [1] nor Public Authorities Law §2623 [2] any duty to indemnify Plaintiff would derive solely from a contractual obligation;

2. In the event a party is under no legal duty to indemnify an employee, "a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed" and a promise to indemnify "should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances"; and

3. The Employer's resolution pursuant to which Plaintiff claims a right of indemnification states, in pertinent part, that the Employer "agrees at its sole cost and expense to indemnify and hold harmless the members, officers and employees of [the Employer] from all costs and liabilities of every kind and nature as provided in the by-laws" with respect to the individual's "acting [o]n behalf of [the Employer]."

Noting that the language of the internal resolution is ambiguous, the Appellate Division opined that "This ambiguity itself precludes a finding of entitlement to contractual indemnification", citing Hooper Assoc. v AGS Computers, 74 N.Y.2d 487 as the resolution does not convey a clear right to indemnification and Plaintiff was ordered to pay restitution in connection with a guilty plea to disorderly conduct in satisfaction of an accusatory instrument charging intentional criminal conduct. 

Thus, said the court, "Supreme Court erred" in concluding that Plaintiff had an enforceable right to "contractual indemnification."

* Plaintiff was sentenced to 150 hours of community service and ordered to pay $8,026.53 in restitution. 

** Employee did not apply for indemnification pursuant to Public Officers Law or the Public Authorities Law.

Click HERE to access the Appellate Division's decision.