Employer's liability for employee’s off-duty conduct

Employer's liability for employee’s off-duty conduct
Perez v City of New York, App. Div., 1st Dept., Docket #1973

In Donahue v Young, Appellate Division, Second Department, Docket 2001-09542, the court held that a municipal employer was not liable under the doctrine of respondent superior[1] when one of its firefighters, while off duty, assisted in extinguishing a fire and in the course providing such assistance, injured a third party. However, the Perez ruling suggests that the courts may view this type of situation differently when the employee in question is a police officer.

In essence, the doctrine "respondeat superior" embraces the concept that the employer is responsible for the actions of its employees.

In the process of making an arrest while off-duty, a New York City police officer, shot and killed an innocent bystander. While not specifically holding that the City was liable for the police officer's action, the Appellate Division did say that the fact that the officer was making an arrest was in and of itself enough to raise a "triable issue" as to whether the City was liable under the theory respondent superior.

The court indicated that "there were substantiated complaints pre-dating the shooting of Perez lodged against the police officer with the Civilian Complaint Review Board." Accordingly, said the Appellate Division, there were issues of fact as to whether the City negligently trained the officer and, or, negligently retained him in its employ.

The Legislature has often provided special benefits for law enforcement and firefighting personnel. For example, Article 14 of the New York State Civil Service Law provide unionized firemen and unionized police the right to interest arbitration regarding terms and conditions of employment whereby other unionized public employees do not. Also, both law enforcement and firefighting personnel enjoy eligibility for special benefits under Sections 207-a and 207-c of the General Municipal Law if they are injured in the course of their employment.

As in Donahue, the police officer was performing a duty he would otherwise perform if officially on duty in the course of which a third party was injured or otherwise harmed. While the Court did not affirmatively decide that the City was culpable, it is clearly stating that there is a legitimate question as to whether the doctrine of respondeat superior applied.

New York State courts have long held that police officers are legitimately held to a higher standard than other public employees for the purposes of discipline. This decision suggests that a law enforcement agency may also be held to a higher standard than other public employers when one of its officers causes an injury to someone while the employee was off duty.

[1] In essence, the doctrine "respondeat superior" expresses the concept that the employer is responsible for the actions of its employees performed in the course of their regular duties.

Public employee must serve in a “safety-sensitive” position in order to be subject to random testing for alcohol or unlawful drugs

Public employee must serve in a “safety-sensitive” position in order to be subject to random testing for alcohol or unlawful drugs

New York City Department of Transportation v R.B., OATH Index #1215/11

R.B., a maintenance worker employed by the Staten Island Ferry Division of the Department of Transportation was served with disciplinary charges after testing positive for marijuana in a random drug test.

R.B. challenged the Division’s subjecting him to a random drug and alcohol test that led to the disciplinary action, contending that as he did not serve in a “safety-sensitive” position as he did not perform work on the ferries or on ferry equipment and thus subjecting him to such testing was an unreasonable search under the Fourth Amendment to the United States Constitution.

OATH Administrative Law Judge Faye Lewis agreed, holding that because R.B. duties were custodial in nature, performed in the ferry buildings and grounds under direct supervision, subjecting him to such random testing violated his rights under the federal Constitution. Judge Lewis sustained R.B.'s motion to dismiss the disciplinary charges filed against him.

The Court of Appeals had approved random drug testing in specific instances such as the testing of law enforcement personnel assigned to narcotics interdiction [see Caruso v Ward, 72 NY2 432]. In contrast, in the Patchogue-Medford Congress of Teachers case, 70 NY2d 57, the court held that reasonable expectations of privacy required probable cause to permit the school district to require probationary teachers to undergo random testing for unlawful drugs.

As the Court of Appeals held in Delaraba v Nassau County Police Department, 83 N.Y.2d 367, “[i]t is well established law that random drug screening constitutes a search and seizure within the meaning of the Federal and State constitutions (National Treasury Employees Union v Von Raab, 489 US 656; Matter of Caruso v Ward, 72 NY2d 432). The guarantee against unreasonable searches and seizures found in both the State and Federal Constitutions (NY Constitution, Article 1, 12; US Constitution, 4th Amend) is designed to protect the personal privacy and dignity of the individual against unwarranted intrusions by the State (Matter of Abe A., 56 NY2d 288; Matter of Patchogue-Medford Congress of Teachers v Board of Education of the Patchogue-Medford Union Free School District, 70 NY2d 57, 64).

“A three-pronged standard of review was articulated in Patchogue-Medford as it related to all probationary teachers eligible for appointment to submit to a urine test for the purpose of detecting potential drug abuse. This Court, invalidating the plan, held that a drug screening plan must be closely scrutinized and permitted only where: (1) the individual's privacy interests are minimal, (2) the government's interests are substantial, and (3) safeguards are in place to ensure that the individual's reasonable expectations of privacy are not subject to unregulated discretion (Patchogue-Medford, supra at 70).”

The general rule in New York State with respect to requiring a "non-security or safety sensitive" public employee to submit to random drug tests is that except where a negotiated agreement or statute authorizes or requires random drug testing, a public employer must have reasonable cause or justified suspicion to require an employee to take an involuntary drug test.

The R.B. decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-1215.pdf

Individual disciplined for off-duty misconduct

Individual disciplined for off-duty misconduct
Mahadio v Kerik, 298 A.D.2d 305

New York City police officer was served with disciplinary charges that alleged that while he was off-duty, he "wrongfully and without just cause displayed his weapon while making a threatening remark to a civilian" ... and that he addressed persons ... in an ethnically offensive manner.

Found guilty, Police Commissioner Bernard B. Kerik imposed the penalty of a forfeiture of 25 vacation days. The officer appealed, only to have the Appellate Division unanimously confirmed the Commissioner's determination.

The court said that substantial evidence supported the Commissioner's decision and that there was no basis to disturb his determination concerning the credibility of the witnesses testifying. As to the penalty imposed, the Appellate Division said that the forfeiture of 25 days of leave did not shock its sense of fairness, citing Kelly v Safir, 96 NY2d 32.

Determining member service credit for retirement

Determining member service credit for retirement
Panigrosso v McCall, 298 A.D.2d 797

The Panigrosso case concerned determining the eligibility of a disabled individual for ordinary disability retirement benefits.

Vincent A. Panigrosso, Jr., was employed in the Putnam County Highway Department as a mechanic's helper. In November 1996, while attempting to remove a tire, another tire, which had been leaning against a wall, began to fall toward him. Panigrosso attempted to catch the falling tire and in so doing he injured his back to the extent that he required surgery.

On June 24, 1997, while again attempting to remove a tire from its rim, Panigrosso experienced pain in his back, left work and never returned. He filed an application for accidental disability retirement benefits contending that he was permanently disabled as a result of his November 1996 and June 1997 "accidents."

Panigrosso subsequently filed a second application, this time seeking ordinary disability retirement [ODR] benefits. He claimed eligibility for ODR benefits because he said that he had completed 10 years of service credit and thus was not required to show that he was disabled as the result of a job-related accident.

Ultimately both applications were rejected. The Retirement System decided that:

1. Both of Panigrosso injuries occurred while he was performing the customary duties of his employment and, hence, the underlying incidents could not be deemed "accidents" within the meaning of Retirement and Social Security Law Section 605(b)(3); and

2. Panigrosso had not accumulated the required ten years of member service credits to be eligible for ordinary disability retirement. [Also, it should be noted that Panigrosso was not actually "in service" at the time he applied for ODR benefits.]

As to Panigrosso's accidental disability claim, the Appellate Division ruled that the November 1996 and June 1997 incidents did not constitute "accidents" within the meaning of Section 605(b)(3). In the words of the court:

An "accident" is a sudden, fortuitous, out of the ordinary and unexpected event that does not result from an activity undertaken in the performance of ordinary employment duties. Here, the record reveals that ... both incidents in question occurred while [Panigrosso] was performing his usual employment duties.

As to Panigrosso's eligibility for ODR claim, the court said that the record clearly indicated that Panigrosso did not accumulate 10 years of service credit with the Retirement System.

Panigrosso had begun his employment with Putnam County in January 1990 and was removed from the payroll in August 1997. Once petitioner was off the payroll, he stopped accumulating service credit. Not having at least 10 years of member service credit, the Appellate Division ruled that he was clearly ineligible for an ordinary disability retirement allowance.

Union animus

Union animus
CSEA Local 1000 and Town of North Hempstead, 35 PERB 3027

PERB rejected its Administrative Law Judge's conclusion that the Town of North Hempstead was guilty of union animus based on a finding that "but for" the union's president using "union business" release time, he would not have been involuntarily transferred to another unit because the Town's explanation for the transfer -- the need to reorganize a department -- was "largely unrebutted by the Union" and thus there was no basis to hold that the transfer was the result of improper motivation on the part of the Town. 

Basis for workers' compensation award

Basis for workers' compensation award
Scofield v City of Beacon Police Dept., 290 A.D.2d 845

A police officer is awarded a "scheduled loss" by the Workers' Compensation Board. As the Scofield decision demonstrates, under certain circumstances the employer may be entitled receive all or a portion of the award granted to the police officer in consideration of the salary payments it made to the officer as a result of his or her injury.

City of Beacon police officer Glenn Scofield suffered a work-related injury to his left knee. A year later he injured the same knee at work. In both instances he was "paid his regular wages pursuant to Section 207-c of the General Municipal Law" [GML].

The two relevant statutes in Schofield's case: GML Section 207-c and Section 30 of the Workers' Compensation Law [WCL].

GML Section 207-c provides for the continuation of a police officer who is injured in the line of duty on the payroll at full salary. WCL Section 30 provides that "(3) ... any salary or wages paid to, or the cost of any medical treatment or hospital care provided ... pursuant to [GML Section 207-c] shall be credited against any award of compensation ... under this chapter."

This provision, said the court, was added to the WCL to avoid any duplication of benefits paid to an injured police officer, as the combined total of GML and WCB benefits might exceed the salary the officer would have received for the period had the injury not occurred.

Following the second injury, the Workers' Compensation Board granted Schofield a 15% schedule "loss of use award" for the injury to his left leg. Beacon, citing WCL Section 30, asked for reimbursement from Schofield's schedule award for the compensation it had paid to Schofield after both injuries.

Although the award was based on Schofield's physician's opinion that his second injury "was caused entirely by the first injury," Schofield argued that Beacon's right to reimbursement from the award was limited solely to the wages Beacon paid to him prior to his second injury.

The Workers' Compensation Board disagreed. It said that the second injury was a consequence of the initial injury, not a new injury, and therefore, the two files should be combined. As a result, Beacon was held entitled to Section 30 reimbursement for all the wages it paid to Schofield "on the combined files."

The Appellate Division affirmed the Board's determination since "[w]hether a second injury is a consequence of an earlier one is a factual issue for the Board to resolve."

The court said that while a finding of consequentiality does not necessarily resolve the issue of reimbursability, "where, as here, both injuries were directly related to the impairment upon which the schedule award was based, full reimbursement is appropriate."