Defending and indemnifying officers and employees of the State involved in litigation

Defending and indemnifying officers and employees of the State involved in litigation

Public Officers Law §§17 and 19

In the event an officer or an employee of the State as the employer is sued in connection some alleged act or omission in the performance of his or her official duties, he or she may seek representation by the State and indemnification in the event he or she is held liable for damages and fees under certain circumstances.*

§17 of the Public Officers Law applies with respect to civil proceedings and provides for the defense and indemnification of officers and employees as defined in Subdivision 1 of §17 in the event such an individual is in a civil action or proceeding in any state or federal court arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the individual was acting within the scope of his or her public employment or duties; or which is brought to enforce a provision of 42 USC 1981 or 42 USC 1983 [Federal Civil Rights Acts]. This duty, however, does not arise where the civil action or proceeding is brought by or on behalf of the State.

The State’s duty to defend or indemnify and save harmless the individual is subject to the following conditions::

1. The individual’s delivery of the original or a copy of any summons, complaint, process, notice, demand or pleading within five days after he or she is served with such document to the Attorney General or an Assistant Attorney General at an office of the Department of Law in the State, and

2. The full cooperation of the individual in the defense of such action or proceeding and in defense of any action or proceeding against the State based upon the same act or omission, and in the prosecution of any appeal.

The timely delivery of such documents is deemed a request by the individual that the State provide for his or her defense and indemnification pursuant to §17.

§19 of the Public Officers Law applies in criminal actions and provides for the State to pay reasonable attorneys' fees and litigation expenses incurred by or on behalf of an officer or employee of the State as the employer in his or her defense of a criminal proceeding in a State or Federal court:

1. arising out of any act which the individual was acting within the scope of his or her public employment or duties upon his or her acquittal or upon the dismissal of the criminal charges against him or her or

2. incurred in connection with an appearance before a grand jury which returns no true bill against the individual where the individual's appearance was required as a result of any act which occurred while the individual was acting within the scope of his or her public employment or duties if such appearance did not occur in the normal course of the public employment or duties of the individual.

However, such reimbursement is also conditioned on (a) the individual’s timely delivery of a written request for such reimbursement of expenses together with, in the case of a criminal proceeding, the original or a copy of an accusatory instrument within ten days after he or she was arraigned pursuant to such instrument or, in the case of an appearance before a grand jury, written evidence of such an appearance. Such an item is to be delivered to the Attorney General or an Assistant Attorney General at an office of the Department of Law in the State.

In the event a request for reimbursement for reasonable attorneys' fees or litigation expenses or both made by, or on behalf of, the individual, the Attorney General is to investigate and review of the facts and circumstances involved and determine whether such reimbursement shall be paid. The Attorney General is to then notify the individual in writing of that determination.

Another condition to be met by the individual:seeking such reimbursement is his or her full cooperation in the defense of any action or proceeding against the State based upon the same act, and in the prosecution of any appeal.

* §18 of the Public Officers Law authorizes a political subdivision of the State to adopt a law, by-law, rule, resolution or regulation providing for the defense and indemnification of the entity’s officers and employees.
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An applicant for a preliminary injunction must satisfy two tests: a showing of irreparable injury if its application is not granted and its probability of success on the merits

An applicant for a preliminary injunction must satisfy two tests: a showing of irreparable injury if its application is not granted and its probability of success on the merits

Patrolmen's Benevolent Assn. of the City of New York, Inc. v City of New York, 2014 NY Slip Op 03464, Appellate Division, First Department

Three members of the Patrolmen's Benevolent Association of the City of New York, Inc. (PBA) were elected to four-year terms as the sole borough-wide PBA representatives for police officers assigned to the Bronx. The three were issued Release Time certificates pursuant to Mayor's Executive Order #75 (3/22/73) (EO 75) which provided the three elected PBA members with full-time leaves with pay and benefits.

A grand jury indicted the three members in connection with an alleged ticket-fixing scheme.* Pursuant to Civil Service Law §75(3-a), the three individuals were suspended without pay for 30 days, after which they were restored to modified duty. In addition the City rescinded their respective Release Time certificates. The PBA, however, declined the City’s offer to issue new Release Time certificates for three other employees of the union's choice, and filed a contract grievance with the City’s Office of Labor Relations.

After the grievance was denied, petitioners filed a demand for arbitration with the New York City Office of Collective Bargaining seeking to have the certificates reinstated on the ground that the rescission violated the parties' collective bargaining agreement and EO #75. In addition, the PBA filed an application in Supreme Court pursuant to CPLR Article 75 seeking a preliminary injunction barring the revocations of the Released Time Certificates pending arbitration.

Supreme Court granted the PBA a preliminary injunction enjoining the City from denying or revoking the "Release Time" certificates to the three PBA members pending resolution of arbitration proceedings.

CPLR §7502(c) provides that the Supreme Court "may entertain an application for ... a preliminary injunction in connection with an arbitration that is pending The party seeking the preliminary injunction must demonstrate a probability of success on the merits, a danger of irreparable injury in the absence of a preliminary injunction preliminary injunction being issued, and a balance of the equities in its favor.

The City appealed. The Appellate Division, Judges Tom and Gische dissenting, vacated the Supreme Court’s preliminary injunction, explaining that the PBA, even assuming that an arbitration award in its favor would be render ineffectual without such provisional relief, failed to establish a likelihood of success on the merits of the claim to be arbitrated.

* The Appellate Division's opinion states “The indictments of the [three members] on charges related to a ticket-fixing scheme ... include allegations of grand larceny, official misconduct, tampering with public records, and criminal solicitation ...."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03464.htm

Removal of volunteer officers and volunteer members of a volunteer fire department

Removal of volunteer officers and volunteer members of a volunteer fire department
2014 NY Slip Op 03521, Appellate Division, Second Department

The Board of Fire Commissioners expelled a member of the Fire Department. The member sued and Supreme Court annulled the Board’s determination and remitting the matter for a hearing and a new determination.*  thereafter, and the petitioner cross-appeals from so much of the order as failed to grant the petition in its entirety.

The Appellate Division affirmed the lower court’s ruling, explaining that as the member was entitled to a hearing “upon due notice and upon stated charge” under General Municipal Law §209-l but was not afforded one, “the Supreme Court properly annulled the determination and remitted the matter for a hearing and a new determination thereafter.”

GML §209-l addresses the removal of volunteer officers and volunteer members of volunteer fire departments and, in pertinent part, provides:

1. The authorities having control of fire departments of cities, towns, villages and fire districts may make regulations governing the removal of volunteer officers and volunteer members of such departments and the companies thereof.

2. Such officers and members of such departments and companies shall not be removed from office, or membership, as the case may be, by such authorities or by any other officer or body, except for incompetence or misconduct.**

3. Removals on the ground of incompetence or misconduct, except for absenteeism at fires or meetings, shall be made only after a hearing upon due notice and upon stated charges and with the right to such officer or member to a review pursuant to article seventy-eight of the civil practice law and rules. Such charges shall be in writing and may be made by any such authority. The burden of proving incompetency or misconduct shall be upon the person alleging the same.

* On a procedural note, in this instance, “on the Court's own motion,” the notice of appeal and the notice of cross appeal from the [Supreme Court’s] order was deemed to be applications for leave to appeal, and cross-appeal, respectively, and leave to appeal and cross-appeal is granted

** N.B. §209-l, however, further provides that  “The    provisions of this section shall not affect the right of members of any fire company to remove a volunteer officer or voluntary member of such company for failure to comply with the constitution and by-laws of such company.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03521.htm

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Discourtesy and failure to obey a lawful order

Discourtesy and failure to obey a lawful order

OATH Index No. 851/14

A computer aide was charged with discourtesy, refusal to obey orders, and inefficient performance.

OATH Administrative Law Judge Faye Lewis found that the aide was guilty of misconduct when she was rude and unhelpful to a day care provider who repeatedly called her for assistance and when she frequently failed to return that provider's telephone calls.

The ALJ also found the aide guilty of misconduct when she closed a door in a colleague's face after the colleague approached to say that a client was waiting to see her, and when she failed to obey orders to provide her supervisor with a case folder and to resubmit a form.

Judge Lewis, however, concluded that it was not misconduct for the aide to tell her colleagues she was on her lunch break and did not want to be bothered, as meal periods are not work time.

As the aide did not have any history of formal discipline, ALJ Lewis recommended that she be suspended without pay for 12 days.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/00_Cases/14-851.pdf
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Acting beyond the scope of one's duties

Acting beyond the scope of one's duties

2014 NY Slip Op 03586, Appellate Division, First Department

The Police Commissioner of the City of New York terminated the employment of a New York City police officer [Plaintiff] based on substantial evidence Petitioner “unnecessarily acted outside his role as an undercover officer and discharged his firearm in violation of department guidelines.”

The Appellate Division sustained the Commissioner’s decision, commenting that under the circumstances “The penalty of termination is not so disproportionate to the offense as to shock the conscience,” citing Kelly v Safir, 96 NY2d 32.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03586.htm

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A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://booklocker.com/books/7401.html

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Home addresses of State employees and retirees may be excluded from disclosure in response to a FOIL request

Home addresses of State employees and retirees may be excluded from disclosure in response to a FOIL request

Empire Ctr. for N.Y. State Policy v New York State Teachers' Retirement Sys., 2014 NY Slip Op 03193, Court of Appeals

In Empire Center for New York State Policy the Court of Appeals held that the Freedom of Information Law, commonly referred to as “FOIL,” permits the names, but not the addresses, of retirees who receive benefits from public employees' retirement systems to be disclosed in response to a FOIL request.

Empire Center submitted a FOIL with the New York State Teachers' Retirement System and the Teachers' Retirement System of the City of New York seeking the names of the retired members of the systems. When the retirement systems refused to provide the names, Empire Center filed CPLR Article 78 petitions to compel disclosure. Supreme Court dismissed both petitions, and the Appellate Division affirmed in each case.*

The Court of Appeals reversed the lower courts’ rulings, explaining that the controlling FOIL provision, Public Officers Law  §89(7), provides, in pertinent part, that:

"Nothing in this article [i.e., FOIL] shall require the disclosure of the home address of an officer or employee, former officer or employee, or of a retiree of a public employees' retirement system; nor shall anything in this article require the disclosure of the name or home address of a beneficiary of a public employees' retirement system ….”**

Thus the home address of a retiree – but not his or her name – fall within the available enumerated exceptions to disclosure set out in FOIL. In contrast, the court noted the name and, or, the home address of  "a beneficiary of a public employees' retirement system" – a person entitled to benefits upon the death of the retiree – may be excluded from disclosure in response to a FOIL request.

The release of some public records is limited by a statute such as Education Law, §1127 - Confidentiality of records or §33.13, Mental Hygiene Law - Clinical records; confidentiality. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute. A FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the record. It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

Addressing the retirement systems’ argument that disclosure should be denied as an "unwarranted invasion of personal privacy" within the meaning of Public Officers Law §87 [2] [b]), the court concluded that  “the idea that anyone's privacy will be invaded is speculative” but in the event a FOIL request that seems to have such a purpose is made, that would be the time to consider the effect of the privacy exemption, including the provision addressing the "sale or release of lists of names and addresses if such lists would be used for solicitation or fund-raising purposes."

* See Matter of Empire Ctr. for N.Y. State Policy v New York State Teachers' Retirement Sys., 103 AD3d 1009 [3d Dept 2013]; Matter of Empire Ctr. for N.Y. State Policy v Teachers' Retirement Sys. of the City of New York, 103 AD3d 593 [1st Dept 2013]

** The Freedom of Information Law does not bar an employee organization, certified or recognized for any collective negotiating unit of an employer pursuant to Article 14 of the Civil Service Law, “to obtain the name or home address of any officer, employee or retiree of such employer, if such name or home address is otherwise available under this article."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03193.htm

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A complaint asserting a claim under Labor Law §740.(2) -- the Whistle Blower Law -- need not identify the specific "law, rule or regulation" allegedly violated by the employer

A complaint asserting a claim under Labor Law §740.(2) -- the Whistle Blower Law -- need not identify the specific "law, rule or regulation" allegedly violated by the employer

Webb-Weber v Community Action for Human Servs., Inc., 2014 NY Slip Op 03428, Court of Appeals

Civil Service Law §75-b* and Labor Law §740(2)** are commonly referred to as "whistleblower statutes,” and prohibit the employer from taking retaliatory personnel action against an employee because the employee discloses, or threatens to disclose to a supervisor or to a public body, an activity, policy or practice of the employer that is in violation of law, rule or regulation.

In Webb-Weber the “narrow issue” before the Court of Appeals was whether a complaint asserting a claim under §740(2) must identify the specific "law, rule or regulation" allegedly violated by the employer. 

The Court of Appeals concluded that there is no such requirement, holding that  “[t]he reasonable interpretation is that, in order to recover under a §740 claim, a plaintiff must show that [he or] she reported or threatened to report the employer's "activity, policy or practice." Quoting Richard A. Givens’ statement in Practice Commentaries,*** the Court of Appeals said that “the practice --- not the legal basis for finding it to be a violation — appears to be what must be reported."

Thus, for pleading purposes, the court ruled that the complaint need not specify the actual law, rule or regulation violated, although it must identify the particular activities, policies or practices in which the employer allegedly engaged, so that the complaint provides the employer with notice of the alleged complained-of conduct.

The Court of Appeals observed that in order to recover under a Labor Law §740 theory, the plaintiff has the burden of proving [1] that an actual violation occurred, in contrast to merely establishing that the plaintiff possessed a reasonable belief that a violation occurred, citing Bordell v General Elec. Co., 88 NY2d 869, and [2] that the violation must be of the kind that "creates a substantial and specific danger to the public health or safety," citing Remba v Federation Empl. & Guidance Serv., 76 NY2d 801.

* Civil Service Law 75-b.2(a) provides as follows: A public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding the employee's employment because the employee discloses to a governmental body information: (i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or (ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action. "Improper governmental action" shall mean any action by a public employer or employee, or an agent of such employer or employee, which is undertaken in the performance of such agent's official duties, whether or not such action is within the scope of his employment, and which is in violation of any federal, state or local law, rule or regulation.

** Labor Law §740(2) provides as follows: Prohibitions. An employer shall not take any retaliatory personnel action against an employee because such employee does any of the following: (a) discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety, or which constitutes health care fraud; (b) provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any such violation of a law, rule or regulation by such employer; or (c) objects to, or refuses to participate in any such activity, policy or practice in violation of a law, rule or regulation.

*** Givens, Practice Commentaries, McKinneys Cons Laws of NY, Book 30, Labor Law §740, at 549 [1988 ed].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03428.htm
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Dishonesty ruled incompatible with individual’s employment as a peace officer

Dishonesty ruled incompatible with individual’s employment as a peace officer

OATH Index No. 1186/14

Disciplinary charges were filed against an enforcement agent [Employee] alleging that he failed to report a missing chemical spray canister and other agency equipment, and making false statements about what happened to them.

The agency’s attorney contended that in view of Employee’s status with the agency as a peace officer, the appropriate penalty was termination because of Employee’s admitted dishonesty is incompatible with his law enforcement position.

Noting that Employee persistently refused to provide a truthful explanation for the loss of the equipment, Oath Administrative Law Judge John B. Spooner recommended termination of employment as "integrity is vital" to Employee's job duties as a peace officer, which include providing truthful and accurate testimony at hearings.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/00_Cases/14-1186.pdf
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The 2014 Anderson Series Seminar’s Education Reform and The Common Core session is scheduled for May 20, 2014

The 2014 Anderson Series Seminar’s Education Reform and The Common Core session is scheduled for May 20, 2014

Source: Government Law Center, Albany Law School

The Albany Law School’s Government Law Center will host the next 2014 Annual Warren M. Anderson Breakfast Seminar Series, a nonpartisan hour-long breakfast program, on May 20, 2014 from 8-9 a.m. in the Assembly Parlor, at the State Capitol, 3rd FL. The program continues to be offered free of charge, but space is limited.

The speaker will discuss Education Reform and The Common Core.

For those interested, each seminar is accredited for one hour of transitional and non-transitional CLE credit in the area of “Professional Practice.”

To register or to obtain more information, contact Ms. Amy Gunnells at agunn@albanylaw.eduor telephone 518-445-2329. 

The Comptroller has the authority to review and report on the billing practices of a medical provider not a participating physician within the NYSHIP Empire Plan network

The Comptroller has the authority to review and report on the billing practices of a medical provider not a participating physician within the NYSHIP Empire Plan network

Martin H. Handler, M.D., P.C. v DiNapoli, 2014 NY Slip Op 03191, Court of Appeals

Among the patients treated by a physician and a medical group [Providers] were individuals insured by the Empire Plan, New York State's primary health benefit plan. The Empire Plan pays about 80% of the charges billed for the medical services provided to individuals covered by the Empire Plan. Providers challenged the authority of the State Comptroller to review their records as part of an audit of billing practices in the health care industry for claims paid by the Empire Plan

The Comptroller contended that he had the authority to review and otherwise report on medical provider’s billing practices as part of its audit of State expenditures. The Court of Appeals agreed.

Among the issues considered by the court were “co-payments” incorporated in the fee structure.

Participating providers have an agreement with United that specifies the fees they may charge. These providers bill claims, less a patient “co-pay,” to United Healthcare Insurance of New York [United] which processes and pays claims made by Empire Plan beneficiaries. In contrast, non-participating providers charge market rates for their services and bill the patient directly. United then reimburses the patient 80% of either the actual fee charged or the "customary and reasonable charge" for the service, whichever is lower. The patient is responsible for paying the provider’s bill, including the 20% that is not paid by United, from his or her personal funds.

Non-participating providers have a legal duty to collect patients' co-payments and failure to collect these fees can result in civil and criminal penalties for insurance fraud.*  

According to the decision, the non-participating provider's failure to collect a co-payment from an Empire Plan member inflates a claim's cost and adversely impacts the State's fisc. A provider that charges $100 for a service, and who collects $80 in State money, must collect $20 from the Empire Plan member. In the event that the provider does not collect the co-payment, it has provided a medical service for $80, not $100, and the State should have paid only $64 of that cost.

After the Comptroller had examined Providers billing records for certain periods of time, the auditors found Providers routinely waived the co-pay that was to be paid by Empire patients and that this resulted in more than $1.500,000 in overpayments by United during this period. The Comptroller recommended that United recover the overpaid sums of money, advise Providers of the advantages of participating in the Empire Plan, and contact the Department of Civil Service to develop a plan for preventing future waiver of required co-payments. The Comptroller took no independent enforcement action.

Providers then filed separate combined Article 78 and declaratory judgment actions against the Comptroller and United, challenging the Comptroller's authority to audit their books and sought judicial relief that included enjoining publication of the results of the audit and enjoining United from collecting any alleged overpayments.

Supreme Court granted the petitions in part and enjoined United from taking action based on the Comptroller’s audit results. In separate decisions, Supreme Court concluded that the Comptroller lacked constitutional authority to audit Providers because Providers are "not a political subdivision of the State."

The Appellate Division found the Comptroller has a constitutional duty to audit payments made by the State, and, as a part of that duty, the Comptroller has the authority to conduct post-audit reviews of payments made to Providers. The Appellate Division explained that were the Comptroller to lack authority to audit health care providers' payment records, "no other entity . . . would retain oversight" to prevent overpayments that result from waived co-insurance fees. The Appellate Division remitted the cases to Supreme Court for further proceedings to address Providers’ claims that the audit findings were arbitrary and capricious and lacked a rational basis. Supreme Court dismissed Providers’ petitions and they appealed to the Court of Appeals ”as of right under CPLR 5601(d), bringing up the prior orders of the Appellate Division, which involved a substantial constitutional question.” 

Providers contended that the Comptroller's audits exceeded the constitutional limitations on its powers because, as non-participants in the Empire Plan, they neither have a contract with the State nor receive State funds, and the Comptroller cannot audit them. 

Under the current provisions of law, the Comptroller is to audit State payments and receipts and the Legislature is prohibited from assigning administrative tasks to the office in order to protect "the independent character of the Comptroller's audit function."

Further, Civil Service Law §167 (7), provides that the Comptroller is to audit payments to the State's health insurance vendors whereby "The amounts required to be paid to any contracting corporation under any contract [with NYSHIP] shall be payable from such health insurance fund as audited by and upon the warrant of the comptroller[.]"

Thus, said the court, both the Constitution and statutes require the Comptroller to ensure proper billing and payment for the Empire Plan. In order to accomplish its legally mandated duties to prevent unauthorized payments and overpayments, the Comptroller must perform both pre- and post-audit review of Empire Plan payments.

The Court of Appeals rejected Providers’ theory that United’s role as a conduit severs any connection between the State funds and the their billing practices, putting the records beyond the Comptroller's reach, explaining that the Constitution does not limit the Comptroller's authority in this way and the fact that the State relies on a third-party conduit, United, does not change the character of the funds.

Holding that the Comptroller's limited examination of Providers' billing records amounted to a post-audit of State payments and was permitted by the Constitution, the Court of Appeals ruled that the judgments of Supreme Court and the prior orders of the Appellate Division reviewed should be affirmed, with costs.

* (see Insurance Law §403 [c]; Penal Law § 176.05 [2]).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03191.htm
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