Individuals employed by a government agency for a particular assignment may be eligible for the same qualified immunity enjoyed by individuals on the staff of the agency

Individuals employed by a government agency for a particular assignment may be eligible for the same qualified immunity enjoyed by individuals on the staff of the agency 

Filarsky v. Delia, USSC, No. 10–1018

Is an individual hired by a government agency to do its work ineligible to claim a qualified immunity in the event he or she is sued for some act or omission related to the service he or she is providing the government agency solely because he or she serves with the agency other than on a permanent or full-time basis?

The Court of Appeals for the Ninth Circuit concluded that a “private attorney,” because he or she was not a City employ­ee, was not entitled to claim the protection of a qualified immunity. The United States Supreme Court disagreed.

In this case, said the court, there was no dispute that qualified immunity was available the individuals employed by the jurisdiction as an employer and the 9th Circuit Court of Appeals granted this protection to the jurisdiction’s employees. It, however, denied such protection to the “private attorney” working with the public officials “because he was not a public employee but was instead a private individual ‘retained by the City to participate in internal affairs investigations.’”

The court said that in de­termining whether this distinction is valid, it considered the “general principles of tort immunities and defenses” appli­cable at common law, and the reasons the court earlier afforded such protection from lawsuit under 42 USC §1983.

The Supreme Court’s conclusion: While not a public em­ployee, Steve A. Filarsky, Esq., the private attorney, was retained by the City to assist in conducting an official investigation into potential wrong­doing. The court said that there was no dispute that government employees performing such work were entitled to seek the protection of qualified immunity. The common law does not draw any distinction between a public employee and a private attorney in this regard.

Noting that New York City has a Department of Investigation staffed by full-time public employees who investigate city personnel, and the resources to pay for it, the Supreme Court said “The City of Rialto [California] has neither, and so must rely on the occasional services of private individuals such as Mr. Filarsky. There is no reason Rialto’s internal affairs investigator should be denied the qualified immunity enjoyed by the ones who work for New York.”*

Justice Ginsburg, in her concurring opinion cautioned that the claim of "Qualified immunity may be overcome, however, if the defendant knew or should have known that his [or her] con­duct violated a right ‘clearly established’ at the time of the episode in suit," citing Harlow v. Fitzgerald, 457 U.S. 800.

The Supreme Court revered the 9^th Circuit’s judgment denying qualified immunity to Mr. Filarsky.

*N.B. Citing Richardson v. McKnight, 521 U. S. 399, the Supreme Court noted that “This does not mean that a private individual may assert qualified immunity only when working in close coordina­tion with government employees.” Such immunity also available to others acting on behalf of the government and similarly serves to “ensure that talented candidates [are] not de­terred by the threat of damages suits from entering public service.” However, Justice Sotomayor, in her concurring opinion, commented “… it does not follow that every private individual who works for the government in some capacity necessarily may claim qualified immunity when sued under 42 U.S.C. §1983. Such individuals must satisfy [the court’s] usual test for conferring immunity.”

The decision is posted on the Internet at:

http://www.supremecourt.gov/opinions/11pdf/10-1018.pdf

Disciplinary arbitrator may consider hearsay evidence and unsworn testimony in making his or her determination

Disciplinary arbitrator may consider hearsay evidence and unsworn testimony in making his or her determination

The Appellate Division held that an arbitration award that resulted in the termination of the employee was made in accordance with due process; was supported by adequate evidence; and was rational and not arbitrary and capricious.

Citing Gray v Adduci, 73 NY2d 741, the court noted that "[h]earsay evidence can be the basis of an administrative determination." 

In addition, the Appellate Division said that unsworn testimony by witnesses to the incidents that led to the filing of disciplinary charges and the employee’s own testimony acknowledged the incidents, while offering differing exculpatory accounts thereof, supported the hearing officer’s determination.

As to the penalty imposed, termination, the court said that it did not find dismissal “so disproportionate to the multiple specifications upheld [the employee] with verbal and physical abuse of students and faculty members as to shock our sense of fairness, even considering the mitigating factors of [the employee’s] recurrent health issues.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02802.htm

Court vacates hearing officer’s determination for failure to comply with the agency’s rules and regulations

Court vacates hearing officer’s determination for failure to comply with the agency’s rules and regulations

This decision by the Appellate Division demonstrates that administrative due process applies in cases where a prisoner is charged with alleged misconduct and a disciplinary proceeding is conducted.

In this instance a prisoner was found guilty of certain alleged offences and a penalty of 90 days in solitary confinement and restitution of $100 was imposed. The individual appealed.

The Appellate Division, reversing a lower court’s ruling to the contrary, granted the prisoner’s petition and [1] annulled the determination of the hearing officer, [2] dismissed the charges against the individual and [3] directed the New York City Department of Correction “to expunge all references to the charges from [the individual’s] institutional records.”

The court found that hearing officer failed to provide accused with a written statement summarizing the testimony of three witnesses who testified in his favor and failed to state her reasons for rejecting the testimony of those witnesses and of the accused, in violation of relevant directives of the New York City Department of Correction. The Appellate Division said that the agency “is required to comply with its own regulation.”

Considering a procedural issue, the Appellate Division held that although the Department contended that the prisoner had failed to exhaust his administrative remedies, it would not consider that defense because the Department had failed to raise that claim it its answer.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02947.htm

Determining if a grievance resulting from an alleged violation of a collective bargaining agreement is subject to arbitration

Determining if a grievance resulting from an alleged violation of a collective bargaining agreement is subject to arbitration

In the Matter of the Arbitration between the Village of Horseheads and the Horseheads Police Benevolent Assn., Inc., 2012 NY Slip Op 02543, Appellate Division, Third Department

The Appellate Division, affirming a lower court’s ruling, said that the role of the court in reviewing an application to stay arbitration is limited. In determining if a particular grievance is subject to arbitration, the court must first determine if the parties may lawfully arbitrate the underlying dispute and, if so, whether they did in fact agree to so arbitrate the issue.

In this instance the Village of Horseheads did not contend that there was a statutory, constitutional or public policy prohibition against arbitrating this particular grievance. Accordingly, the sole issue for the court to determine was whether or not the parties, in accordance with the terms of the collective bargaining agreement, agreed to arbitrate the grievance presented by the Police Benevolent Association.

The relevant collective bargaining provision, said the court, defined a grievance as "any claimed violation, misinterpretation or inequitable application of existing laws, rules, procedures, regulations, application or enforcement of the terms of this agreement, administrative orders or work orders or rules of [the Village]."
Whether the Village’s action constituted an actual violation of a rule or regulation "goes to the merits of the grievance [itself], not to its arbitrability," said the court. Accordingly, this was an issue for the arbitrator to resolve.

In contrast, the Appellate Division emphasized that “For purposes of [its] limited inquiry, it [was] sufficient that [the Association had] asserted a ‘claimed violation’ of certain rules and regulations and that a ‘claimed violation’ is, in turn, subject to the grievance procedure set forth in the CBA “

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02543.htm

Appointing authority urged to permit employee terminated for cause to apply for a vested interest retirement

Appointing authority urged to permit employee terminated for cause to apply for a vested interest retirement

The police commissioner terminated a police officer after he was found guilty of official misconduct and violations of the Police Department Patrol Guide.

The Appellate Division annulled the commissioner’s action after dismissing certain specifications and remanded the matter the commissioner “for a determination of a new penalty on the remaining specifications.” Although the court found that there was no substantial evidence to prove the specifications that it had dismissed, it, in contrast, said that the “remaining specifications” were supported by substantial evidence.

However, the Appellate Division also said that “If the Commissioner sees fit to adhere to the penalty of termination,” the police officer "should be permitted to apply for a vested interest retirement."

Although the court acknowledged that the commissioner's penalty determination “is deserving of due deference,” it explained that it was also mindful of the fact that courts "cannot operate merely as a rubber stamp of the administrative determination if the measure of punishment or discipline imposed is so disproportionate to the offense, in the light of all of the circumstances, as to be shocking to one's sense of fairness.”

Characterizing the police officer’s misconduct  “an aberration from his otherwise exemplary career over approximately two decades,” and that termination would work an extreme hardship on the officer’s innocent family, the Appellate Division, Judge Sweeny dissenting, concluded that “[u]nder these circumstances, even in light of the repellent behavior exhibited by [the officer], the deprivation of his retirement benefits is shocking to one's sense of fairness, citing the Pell Doctrine [Matter of Pell, 34 NY2d at 233].

N.B. The Administrative Code of the City of New York provides that an employee may forfeit his or her retirement allowance under certain circumstances. For example, Section 13-173.1 of the Administrative Code requires a sanitation member to "be in service" on the effective date of his or her retirement or vesting of retirement benefits. If the member is not "in service" on that date, he or she forfeits his or her retirement benefits.The Court of Appeals addressed the provisions of Section 13-173.1 in Waldeck v NYC Employees' Retirement System, 81 N.Y.2d 804, decided with Barbaro v NYC Employees' Retirement System.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02787.htm