Employee conduct must be “in furtherance of the employee’s business” for it to be held liable for the employee’s negligent acts as Respondeat Superior

Employee conduct must be “in furtherance of the employee’s business” for it to be held liable for the employee’s negligent acts as Respondeat Superior
Perez v City of New York, 2010 NY Slip Op 09237, Decided on December 14, 2010, Appellate Division, Second Department

New York City police officer Javier Colon accidentally discharged his weapon in the course of unloading it while off-duty and engaged in "personal business," mortally wounding George Perez.

The City of New York and Colon were named as respondents in the lawsuit filed by Kristin Perez on behalf of Perez's estate seeking to recover damages for wrongful death.

Supreme Court granted the City’s motion to dismiss it from the action and denied Perez’s motion for summary judgment against the City on the issue of whether the Colon was acting within the scope of his employment at the time of the accident.

The Appellate Division affirmed the lower court’s ruling.

Pointing out that under the doctrine of respondeat superior, an employer is vicariously liable for an employee's tortious acts when those acts "were committed in furtherance of the employer's business and within the scope of employment," here, said the court, Colon's actions were undertaken “for wholly personal reasons” that were not job related. Accordingly, Colon’s conduct that resulted in the accident “cannot be said to fall within the scope of employment"

Finding that City met its prima facie burden of demonstrating that Colon was not acting within the scope of his employment as a police officer when he unloaded his service weapon and it accidentally discharged, the Appellate Division concluded that Colon’s actions were wholly personal in nature as “he was off duty, engaged in a social activity at his friend's apartment, where he planned to consume alcohol and, concerned about his comfort and the fact that he would consume alcohol, determined that unloading his firearm would be the best method to secure the weapon.”

As Perez failed to demonstrate the existence of a triable issue of fact as to whether Colon was acting within the scope of his employment at the time of the shooting, the Appellate Division decided that Supreme Court properly granted the City's motion for summary judgment dismissing the complaint insofar as asserted against it.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09237.htm

Random searches at work

Random searches at work
Morris v NY-NJ Port Authority, 290 AD2d 22

Robert Morris and the Port Authority Police Benevolent Association [PBA] sued the Port Authority in an effort to obtain a judicial declaration that random searches of the Port Authority police officers’ lockers were (1) unconstitutional and (2) a breach of a Memorandum of Agreement [MOA] between the PBA and the Authority.

The lockers in question are owned by the Authority and were being used by Authority police officers. A search on October 13, 1999 found radios belong to the Authority in the lockers of two officers in violation of its directive to pass the radios on to their shift replacements. The officers were disciplined for violating the directive.

The court dismissed the complaint citing the Appellate Division’s ruling in Moore v Constantine, 191 AD2d 769. Moore challenged his termination as a result of the search of his personal locker and “the seizure of evidence ... which was admitted in evidence” at a disciplinary hearing. The court said that the seizure of evidence from Moore’s locker did not violate his rights under the 4th Amendment.

According to the decision, in order to be entitled to assert a violation of the 4th Amendment, the individual must establish that he or she possessed a reasonable expectation of privacy as to the searched premises.

The right to privacy in the workplace asserted Moore’s situation, said the court, must bend to the superior governmental-societal interest of efficiency in the State Police. All public employees, especially police officers, have a diminished expectation of privacy in the work place.

As the U.S. Supreme Court said in O’Connor v Ortega, 480 US 709, when a public employer conducts such a search, the court must balance the invasion of the employees’ legitimate expectations of privacy against the government’s need for supervision, control, and the efficient operation of the workplace.

The court’s conclusion: “In light of the foregoing, the searches in question, whether they were consensual or not, did not violate plaintiffs’ constitutional rights, and therefore plaintiffs’ claim that they have a likelihood of success on this issue is unpersuasive.”

As to the PBA’s claim that the Authority violated provisions of the MOA, the court ruled that the question was for the arbitrator to determine, as it appears that this dispute is governed by the collective bargaining agreement.

Requests for union leave

Requests for union leave
Matter of the Erie County Sheriff’s Police Benevolent Association, 33 PERB 4570

Provisions for union leave are included in many Taylor Law agreements.

Here the collective bargaining agreement between the Erie County Sheriff’s Police Benevolent Association [SPBA] and the Erie County Sheriff’s Department [department] included a provision allowing specified SPBA members to be absent on union leave. The contract also set out the total number of union leave days available and the procedure to be followed in requesting approval for such leave.

SPBA filed an improper practice charge with PERB in which it alleged that the department had violated Civil Service Law Sections 209-a.1(b) [prohibiting employer attempts to dominate or interfere with the ... administration of any employee organization] and 209-a.1(d) [barring employers from refusing to negotiate in good faith] when it unilaterally decided to require unit members to include an explanation for their absence when requesting union leave.

SPBA also claimed that if the department disapproved of the explanation given by the member, it withheld its approval of the request for the leave. According to SPBA, this was a contract violation in as much as the agreement also provided that requests for union leave shall not be unreasonably withheld.

PERB’s administrative law judge Monte Klein dismissed the charge. Klein said that PERB did not have any jurisdiction to consider such a complaint in view of the fact that the union leave provision was a contract benefit.

Where, said Klein, a right or benefit emanates from the collective bargaining agreement, and the agreement provides a reasonably arguable source of right with respect to the subject matter, a charge alleging improper unilateral action with respect to such a right or benefit is beyond PERB’s jurisdiction. Kline decided that there appeared to be an alternative procedure available to SPBA to resolve its complaint under the terms of the collective bargaining agreement.

In other words, SPBA’s allegations might constitute a breach of the collective bargaining agreement.

Although Klein did not suggest that any specific procedure available to the SPBA to challenge the department’s action, his language suggests that the SPBA could file a contract grievance concerning its allegations. Thus, if SPBA’s allegations constitute a grievance under the collective bargaining agreement, it might allow it to ultimately demand arbitration as to whether the department violated the agreement by:

1. Requiring explanations in connection with requests for union leave; or

2. Unreasonably withholding its approval of requests for union leave by eligible SPBA unit members.

In a similar type of situation, Matter of Suffolk Detectives Association, 33 PERB 4573, the Association initially filed an improper practice charge with PERB alleging that Suffolk County had violated Civil Service Law Sections 209-a.1(a) [the employer has interfered with, coerced or restrained public employees from exercising their rights under the Taylor Law] and 209-a.1(e) [employer to continue all of the terms of an expired collective bargaining agreement until a new agreement is negotiated].

The basis for the Association’s charge: Suffolk issued a memorandum changing the terms under which unit members would receive payment when recalled to duty. PERB administrative law judge Philip L. Maier conditionally dismissed the charge after the parties advised him that they had submitted the matter to binding arbitration.