Giving of false statements in the course of an official investigation constitute grounds for dismissal from municipal employment

Giving of false statements in the course of an official investigation constitute grounds for dismissal from municipal employment

2014 NY Slip Op 03944, Appellate Division, First Department

A New York City police officer [Plaintiff] was terminated from his position based on a finding that he had made false statements regarding his whereabouts to an investigating officer during a department "GO-15"* interview concerning his alleged unauthorized absence from his home while on sick report. Plaintiff admitted that he knew he was required to remain at his residence while on sick report and that he gave a false account of the reason for his absence at the GO-15 interview.

Plaintiff challenged his termination alleging that the penalty of dismissal was excessive and an abuse of discretion. The Article 78 petition filed by his then attorney was dismissed because the attorney had filed to file a timely appeal. Plaintiff then initiated an action against the attorney to “recover damages for legal malpractice” but Supreme Court dismissed Officer’s petition alleging legal malpractice.

The Appellate Division affirmed the lower court’s ruling, explaining that in an action for legal exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty caused his or her plaintiff-client to sustain "actual and ascertainable damages." Further, said the court, to establish causation, the plaintiff-client must show that he or she “would have prevailed in the underlying action or would not have incurred any damages ‘but for’ the lawyer's negligence."

Supreme Court had granted the respondent attorney’s motion for summary judgment after finding this critical "but for" element was missing as Officer would not have prevailed in the underlying Article 78 proceeding challenging his dismissal from his position. The Appellate Division concurred with the Supreme Court’s ruling noting that “The giving of false statements in the course of an official investigation has been upheld as a ground for dismissal from municipal employment," citing Duncan v Kelly, 43 AD3d 297, affirmed 9 NY3d 1024.

As the United States Supreme Court held in Bryson v. United States, 396 U.S. 64 (1969), "Our legal system provides methods for challenging the Government's right to ask questions - lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood."

* A GO-15 interview is one conducted "in connection with allegations of serious misconduct or corruption." 
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Acting on information provided by the employer later proved to be incorrect does not create a right that was not otherwise available to the individual

Acting on information provided by the employer later proved to be incorrect does not create a right that was not otherwise available to the individual
2014 NY Slip Op 04051, Appellate Division, First Department

A former Court of Claims Judge and acting Supreme Court Justice, relying on the erroneous advice of employees of the Office of Court Administration (OCA) that he was vested in his New York State Health Insurance Program (NYSHIP) resigned from his position. He subsequently learned that he was not eligible to vest his NYSHIP benefits and thus was not eligible for NYSHIP benefits under the law.

Asserting that he would not have resigned from his position when he did if not for this advice, he filed a petition in the Court of Claims seeking a court order reinstating him as a NYSHIP participant or, in the alternative, an order awarding him money damages. The Court of Claims granted OCA’s motion to dismiss the action.

The Appellate Division, affirming the Court of Claim’s ruling, held that notwithstanding the incorrect information provided by the OCA employees, which was ministerial in nature, and which might subject the governmental body to liability, no claim of a “special duty was advanced by the former judge in contrast to his being treated same as any other employee seeking advice or information from OCA.

Accordingly, said the court, OCA may not be estopped from applying the law to the former judge notwithstanding the incorrect information given to him by an OCA employee and upon which he acted to his detriment.

Citing Matter of Grella, 38 AD3d 113, the Appellate Division explained that estoppel may not be invoked to prevent a governmental agency from performing its duty is not applicable here.*In Grella, a case involving eligibility for certain retirement benefits, the court held that even when erroneous advice was given by a Retirement System employee, the Comptroller has the exclusive authority to determine entitlement to retirement benefits and the duty to correct errors and cannot be estopped from exercising such duties in order "to create rights to retirement benefits to which there is no entitlement."

* The decision notes that the “the narrow exception to the rule” barring the application of estoppel to a governmental agency was not applicable in this case. [See, also, 2014 NY Slip Op 03907, Appellate Division, Third Department, summarized at http://publicpersonnellaw.blogspot.com/2014/06/the-consequences-of-withdrawing-from.html]
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Imposing the penalty of dismissal held reasonable under the circumstances

Imposing the penalty of dismissal held reasonable under the circumstances

2014 NY Slip Op 03064, Appellate Division, Fourth Department

A former New York State Trooper [Former], commenced a CPLR Article 78 proceeding seeking to annul the Superintendent's determination finding him guilty of misconduct or, in the alternative, to vacate the penalty of dismissal. Former contended that the determination is not supported by substantial evidence and that the penalty is shocking to one's sense of fairness.

The charges against Former alleged that he knew of certain illegal activities and did not take proper police action to stop them; that he knowingly frequented an establishment where violations of the law existed; that he provided false information during the internal investigation; and that, by his conduct, he brought discredit to the Division of State Police.

The Hearing Board found Former guilty of all of the charges filed against him but one. The Superintendent accepted the findings and recommendations of the Hearing Board and dismissed Former from the Division of State Police.

The standard of review for the Appellate Divisions and the Court of Appeals in such cases is whether there was substantial evidence to support the Hearing Officer's decision" Rejecting Former’s contention to the contrary, the Appellate Division concluded that, we conclude that the Superintendent’s determination was supported by substantial evidence.

Although Former denied having any knowledge of the illegal activities alleged, there was substantial evidence establishing the contrary, i.e., that he was aware of those activities. Further, said the court, Former gave numerous inconsistent statements regarding whether he knew certain facts and evaded answering basic questions. The Appellate Division concluded that the Hearing Board properly determined that such evidence is indicative of a consciousness of guilt.

The Appellate Division explained that although a different finding would not have been unreasonable, "where [, as here,] substantial evidence exists' to support a decision being reviewed by the courts, that determination must be sustained, irrespective of whether a similar quantum of evidence is available to support other varying conclusions' "

Turning to the penalty imposed, dismissal from the Division, the court said that it did not agree with Former that the penalty of dismissal is shocking to one's sense of fairness. "Judicial review of an administrative penalty is limited to whether the measure or mode of penalty or discipline imposed constitutes an abuse of discretion as a matter of law . . . and a penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness,' thus constituting an abuse of discretion as a matter of law."

Further, said the court, "[i]n matters concerning police discipline, great leeway' must be accorded to the [Superintendent's] determinations concerning the appropriate punishment, for it is the [Superintendent], not the courts, who is accountable to the public for the integrity of the [Division of State Police]," citing Kelly, 96 NY2d 32 among other decisions.

Given the nature of the offenses, the "higher standard of fitness and character [that] pertains to police officers," Former's evasive conduct and his refusal to accept any responsibility for his conduct, the Appellate Division concluded that the penalty of dismissal does not shock one's sense of fairness.

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