Plaintiff alleges public employer negligently retained a sworn officer in its employ as a police officer

This action resulted from an incident where an off-duty police officer [Officer] was at a social affair and the Plaintiff [Security Guard] in the action was employed as a security guard at that event. 

The record indicates that there was a dispute between the Security Guard and the Officer. Security Guard alleged that Officer drew a weapon and pointed it at the Security Guard's head, pulled the trigger of the weapon and although Security Guard heard the weapon "click", it did not fire. 

Officer was subsequently subdued, arrested and ultimately convicted of menacing in the Second Degree.

Security Guard initiated the instant action against Officer and Officer's employer [City], contending that, other things, City negligently retained Officer as a police officer, entrusting him with a firearm and the license to carry a firearm. City moved for summary judgment dismissing the complaint insofar as claims asserted against City. 

The Appellate Division's decision notes an earlier incident, the "2016 incident", where Officer [1] unlawfully discharged his service weapon into the air while off duty and intoxicated; and [2] was convicted of a misdemeanor [prohibited use of a weapon]. As a result of that incident, Officer lost his privileges to carry a weapon for approximately one year, was demoted, and was required to complete an alcohol treatment program.

With respect to the 2016 incident, which did not involve aggression or violence towards another person, the Employer contended the event "was insufficient to put the City on notice that [Officer] was disposed to engage in the type of violent behavior that occurred [in the course of the subject] incident."

In opposition to the motion, the Security Guard argued, among other things, that the 2016 incident provided the City with sufficient notice of Officer's violent tendencies and that the City was negligent in retaining Officer and restoring him to active duty with firearms.

Supreme Court granted that branch of the City's motion seeking summary judgment dismissing the cause of action alleging it negligently retained Officer as an employee insofar as asserted against it. Officer appealed Supreme Court's ruling.

The Appellate Division said "[U]nder the theory of negligent hiring and retention, an employer may be liable for the acts of an employee acting outside the scope of his or her employment. A cause of action for negligent retention, however, requires proof that [1] the employer knew or should have known of the employee's harmful propensities; [2] that it failed to take necessary action; and [3] that this failure proximately caused the plaintiff's injuries."

Addressing the City's motion, the Appellate Division opined that City "established its prima facie entitlement to judgment as a matter of law" by demonstrating that it did not know or have reason to know of Officer's propensity to caused injury as the result of its knowledge of the 2016 incident.

In the course of the 2016 incident Officer discharged his firearm into the air while intoxicated. Such action, opined the Appellate Division, "was insufficient to put the City on notice of any propensity of [Officer] to act violently or aggressively in the manner that he did towards the Security Guard."

The Appellate Division then ruled that Supreme Court "properly granted that branch of the City's motion" seeking summary judgment dismissing the cause of action alleging negligent retention of Officer insofar as asserted against City.

Click HERE to access the Appellate Division's decision posted on the Internet.

New Attendance and Leave Bulletins promulgated by the New York State Department of Civil Service posted on the Internet

Policy Bulletin 2024-07, addressing Paid Parental Leave for Council 82 – Security Supervisors Unit (SSpU) Employees and Policy Bulletin 2024-08, addressing Attendance and Leave Items – 2023–2026 State-District Council 37 (DC-37) Negotiated Agreement have been posted on the Internet by the New York State Department of Civil Service.

The URL for accessing the text of Policy Bulletin 2024-07 is  https://www.cs.ny.gov/attendance_leave/PolBull24-07.cfm

Also available for downloading is a version of Policy Bulletin 2024-07 in PDF format at: https://www.cs.ny.gov/attendance_leave/PB2024-07Combined.pdf

Text of Policy Bulletin 2024-08 is posted on the Internet at:
https://www.cs.ny.gov/attendance_leave/PolBull24-08.cfm

Policy Bulletin 2024-08 in PDF format is posted on the Internet at:
https://www.cs.ny.gov/attendance_leave/PB2024-08.pdf

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Submission of an incomplete record to the Appellate Division results in the court dismissing the appeal

In a proceeding pursuant to CPLR Article 78 to review a determination dated terminating the petitioner's [Member] membership in the respondent Fire Department [Department], the Member appealed from a judgment of the Supreme Court denying Member's Article 78 petition and dismissing the proceeding.

Member challengd the Supreme Court's decision but the Appellate Division dismissed Member's appeal to it, with costs.

Citing Klein v Richs Towing, 213 AD3d 920, the Appellate Division noted "CPLR 5526 requires that a record on appeal contain the papers and exhibits upon which the order appealed from was founded".

Here, said the Appellate Division, the record does not contain the member's underlying reply affirmation or the audio recording of the meeting at which her membership was terminated, both of which were considered by Supreme Court in rendering its determination with respect to Member's petition. 

Although Member's argument before the Appellate Division was that the Supreme Court should have annulled Department's termination of her membership, the Appellate Division opined that it is "the obligation of the appellant to assemble a proper record on appeal", explaining "the record is inadequate to allow it to render an informed decision" and thus Member's appeal must be dismissed.

Click HERE to access the Appellate Division's decision posted on the Internet.

Judicial review of arbitration awards

The Employer [Agency] suspended Petitioner [Employee] from his position without pay and charged him with three disciplinary charges alleging misconduct (Charge 1); sexual harassment in violation of the civilian manual and respondent's sexual harassment policy (Charge 2); and sexual harassment in violation of the state employee handbook (Charge 3). Employee grieved the charges and, after a hearing before an arbitrator, Employee was found guilty of charge 1 but Employee was found not guilty as to charges 2 and 3.

With respect to Charge 1, the arbitrator imposed a penalty of a six-month suspension without pay and, because Employee had already been suspended without pay in excess of "one month", the arbitrator ordered that Employee be reinstated to his position with back pay. 

Employee filed a CPLR §7510 petition seeking to confirm the arbitration award after Agency failed to reinstate him to the position. In response to Employee's petition, Agency sought to vacate the arbitration award with respect to Charges 2 and 3 and to impose a penalty of termination.

Supreme Court confirmed the award with respect to Charge 1 and vacated the award with respect to Charges 2 and 3 as irrational and against public policy. Supreme Court then found Employee guilty of Charges 2 and 3 and remitted the matter to a different arbitrator for the imposition of a new penalty. Employee appealed the Supreme Court's decision.

The Appellate Division observed:

1. "Judicial review of arbitral awards is extremely limited and, thus, arbitration awards may only be vacated in limited circumstances, including where the 'arbitrator . . . exceeded his [or her] power'"; and

2. "[A]rbitrators exceed their power within the meaning of the CPLR only when they issue an award that violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power".

The Appellate Division opined that "An arbitrator that 'imposes requirements not supported by any reasonable construction of the [contract]' has, 'in effect, made a new contract for the parties' rendering the award subject to vacatur as irrational." 

Here, said the Appellate Division, when evaluating Charges 2 and 3, "the arbitrator was required to consider the definition of sexual harassment as provided in the civilian manual and in the employee handbook." In making the ultimate determination as to Counts 2 and 3, the Appellate Division said the arbitrator "disregarded the definition of sexual harassment as contained in the manual and the handbook and supplied additional requirements not contained in either".

Noting that courts can neither "substitute judicial opinion for the arbitrator's decision" nor "rule on either the merits of the underlying allegations or impose a remedy [that  it] feel is appropriate", the Appellate Division opined that "we must reverse those aspects of Supreme Court's order that did both".

Citing CPLR §7511 [d], the Appellate Division vacated "the portions of the award finding [Employee] not guilty of sexual harassment under [Charges] 2 and 3 and remit the matter to a new arbitrator for a new determination as to those charges and the imposition of an appropriate penalty". 

Click HERE to access the Appellate Divisions decision posted on the Internet. 

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A Reasonable Penalty Under The Circumstances - This e-book focuses on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service of the State of New York or a political subdivision of the state found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html.  

Municipal and School District audits released by the New York State Comptroller

On August 23, 2024, New York State Comptroller Thomas P. DiNapoli announced the following Municipal and School District audits were posted on the Internet.

Click on the text in COLOR to access the text of the audit.

Northeastern Clinton Central School District – Transportation State Aid (Clinton County)

District officials did not accurately apply for all applicable transportation aid. As a result, the district was at risk of losing aid totaling $391,494. However, once auditors informed officials of this risk, the school business manager promptly filed accurate aid applications with the State Education Department, and the aid was subsequently approved. Had officials established procedures to ensure transportation aid applications were accurately filed, the district’s aid may not have been delayed.

Northeastern Clinton Central School District – Foster Care Tuition Billing (Clinton County)

District officials did not properly bill tuition for nonresident foster care students enrolled at the district. As a result, as of June 30, 2023, officials had not billed $95,210 of the $129,538 in tuition to which it was entitled for the 2020-21 through 2022-23 school years and made tuition calculation errors totaling $3,036 in the amounts billed.

Campbell-Savona Central School District – Student State Aid (Steuben County)

District officials did not properly claim a total of $65,953 in potential state aid for special education and homeless students, including $29,939 of potential aid the district will not receive because officials did not file claims within the filing timeframes. Specifically, $57,176 in estimated state aid was not properly claimed by the district for some special education students and $8,777 in potential state aid was not properly claimed for some students classified as homeless.

Town of Summit – Town Clerk (Schoharie County)

Although fees were properly recorded, the town clerk did not always deposit or remit fees in a timely manner. Specifically, the clerk did not deposit 98% of the fees collected in accordance with state law which requires the clerk to deposit fees within three business days after total collections exceed $250. The clerk also did not perform monthly bank reconciliations or accountability analyses during the audit period.

Erie 2-Chautauqua-Cattaraugus Board of Cooperative Educational Services (BOCES) – Building Access Badge Accounts

BOCES officials did not properly manage and monitor badge accounts used to access BOCES buildings. Badges that remain active without a purpose can be lost, stolen or misused, potentially resulting in unauthorized building access. BOCES officials did not deactivate 48 badges that were no longer needed out of the 87 active non-employee individual badge accounts. They also created 25 duplicate accounts in the building access system and physical badges for current BOCES employees who already had badges. In addition, they did not deactivate and could not physically locate the badges for 15 of 25 shared accounts selected for testing. Lastly, an additional 48 shared accounts were discovered and deactivated because the badges were lost.

Town of Harpersfield – Claims Auditing (Delaware County)

The board did not properly audit claims to determine whether the claims represented actual and necessary expenditures and whether proposed payments were for valid purposes. Of the 428 claims totaling $478,628 that were paid during the audit period, auditors reviewed 124 claims totaling $400,604 and determined that the board did not properly audit individual claim packets and supporting documentation. Rather, the board reviewed only an abstract of unaudited claims each month and approved the abstracts for payment. Auditors found 30 claims totaling $69,281 were improperly paid before board approval and 22 claims were paid that included sales tax totaling $460.

Town of Otselic – Audit Follow Up (Chenango County)

Town officials have made almost no progress on implementing corrective action proposed in the original audit. Of the 11 audit recommendations, one was fully implemented, one recommendation was partially implemented, and nine recommendations were not implemented, including the recommendation that the board should require the supervisor to provide accurate monthly financial reports.

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