In the Matter of Nicholas Lemma, Appellant,v.Nassau County Police Officer Indemnification Board, et al., Respondents.

Brief

N.Y.May 2, 2018

To Be Argued By: Robert F. Van der Waag Time Requested: 20 minutes Court of Appeals H>tate of Jfteto |9ork In the Matter of the Application of NICHOLAS LEMMA, Petitioner-Appellant, For a Judgment Under Article 78 of the Civil Practice Law and Rules APL- 2017-00092 -against- NASSAU COUNTY POLICE OFFICER INDEMNIFICATION BOARD, LAWRENCE MULVEY, as Commissioner, NASSAU COUNTY POLICE DEPARTMENT and NASSAU COUNTY, Respondents-Respondents. BRIEF OF RESPONDENTS-RESPONDENTS CARNELL T. FOSKEY Nassau County Attorney Attorney for Respondents-Respondents One West Street Mineola, New York 11501 (516) 571-3954 Of Counsel: Robert F. Van der Waag Deputy County Attorney Appeals Bureau Chief Christi Kunzig James LaRusso Nicholas Vevante Deputy County Attorneys Brief Completed November 10, 2017 TABLE OF CONTENTS PRELIMINARY STATEMENT COUNTERSTATEMENT OF QUESTIONS PRESENTED . STATEMENT OF FACTS A. BACKGROUND B. SUPREME COURT TRIAL C. DECISION AND ORDER OF THE APPELLATE DIVISION, SECOND DEPARTMENT 1 1 2 2 5 9 SUMMARY OF ARGUMENT ARGUMENT IT IS UNEQUIVOCALLY CLEAR THAT GENERAL MUNICIPAL LAW §50-L PROVIDES INDEMNIFICATION FOR OFFICERS WHO ACTED BOTH IN THE PROPER DISCHARGE OF THEIR DUTIES AND WITHIN THE SCOPE OF THEIR EMPLOYMENT BUT DOES NOT PROVIDE BLANKET IMMUNITY.. 10 11 11 A. A PLAIN READING OF THE STATUTE REQUIRES THE OFFICER’S ACTS TO BE “PROPER” 14 B. THE NASSAU COUNTY POLICE INDEMNIFICATION REVIEW BOARD IS CHARGED WITH REVIEWING THE OFFICER’S CONDUCT UNDER GML §50-L AND DETERMINING WHETHER THE CONDUCT WAS COMMITTED DURING THE “PROPER DISCHARGE OF HIS DUTIES” AND “WITHIN THE SCOPE OF HIS EMPLOYMENT” 15 i C. THE LEGISLATIVE HISTORY EVINCES AN INTENT TO PROHIBIT BLANKET IMMUNITY AND PROVIDE INDEMNIFICATION ONLY WHERE AN OFFICER ACTED PROPERLY 17 THE INTENT TO REQUIRE THAT THE ACT BE COMMITTED WHILE IN BOTH THE PROPER DISCHARGE OF DUTIES AND THE SCOPE OF EMPLOYMENT IS FURTHER EVIDENCED THROUGH A COMPARISON OF SIMILAR STATUTES FOR NEW YORK CITY, WESTCHESTER COUNTY AND SUFFOLK COUNTY ... 22 APPELLANT’S RELIANCE ON THE COURT OF APPEALS’ INTERPRETATION OF EDUCATION LAW §3028 IN THE SAGAL- COTLER CASE IS MISPLACED AND IS IRRELEVANT TO THIS CASE 24 THE STANDARD OF REVIEW GOVERNING ARTICLE 78 CASES IS WHETHER THE DETERMINATION WAS ARBITRARY AND CAPRICIOUS; THE DETERMINATION OF THE NASSAU COUNTY POLICE INDEMNIFICATION REVIEW BOARD IS SUPPORTED BY ALL APPLICABLE RULES AND REGULATIONS AND THEREFORE WAS NOT ARBITRARY AND CAPRICIOUS 29 32CONCLUSION CERTIFICATION OF COMPLIANCE 33 ii TABLE OF CASES AND AUTHORITIES 10-Day Budget Report on Bills, Bill Jacket, p. 9, L.1983, ch. 872 Albany Law School v New York State Off, of Mental Retardation and Dev. Disabilities. 19 NY3d 106 [2012] Civil Practice Law and Rules § 7803(3) Dileonardo v Nassau Countv Police Officer Indem. Bd.. 148 AD3d 701 [2d Dept 2017] Dunne Letter in Supp., Bill Jacket, p. 12, L.1983, ch. 872 Education Law § 3028 Frank v Meadowlakes Dev. Corn.. 6 NY3d 687 [2006] Galvani v Nassau County Police Indem. Review Bd.. 242 AD2d 64 [2d Dept 1998] General Municipal Law $ 50-k General Municipal Law $ 50-1 General Municipal Law § 50-m Kent v Lefkowitz. 27 NY3d 499 [2016] Kremer Letter in Supp., Bill Jacket, p. 14-15, L.1983, ch. 872 Matter of Pell v. Board of Educ. of Union Free School Dist. 18 14 29 ,29,30,31 ,18,19,20 ...passim 12 17 ,22,23,25,27.........passim 22,23 17,30 18,20 No. 1 of Towns of Scarsdale & Mamaroneck. Westchester County. 34 N.Y.2d 222, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974] McKinney's Consol.Laws of N.Y., Book 1, Statutes, § 232 Mem. in Support, Bill Jacket, L.1983, ch. 872 Peckham v Caloeero. 12 NY3d 424 [2009] Robins v Blanev. 59 NY2d 393 [1983] Saeal-Cotler v Bd. of Educ. of City School Dist. of City of New York. 31,32 13 .passim ..30,31 16 ,24,25,26,2720 NY3d 671 [2013] Steinbeck vGerosa. 4 NY2d 302 [1958] Superior Officers’ Association Letter in Supp., Bill Jacket, p. 22, L.1983, ch. 872 Yaniveth R. ex rel. Ramona S. v LTD Realty Co.. 27 NY3d 186 [2016] 13 18,20 13 iii Westchester Laws of 1948 § 604, Ch. 842, L.L. No. 12-1979 22 iv PRELIMINARY STATEMENT This Brief is submitted on behalf of Respondents-Respondents, Nassau County Police Officer Indemnification Board, Lawrence Mulvey, as Commissioner, Nassau County Police Department and Nassau County. Petitioner-Appellant, Nicholas Lemma, appeals from an Order of the Appellate Division, Second Department, entered on February 1, 2017, which affirmed the decision of the Supreme Court, Nassau County, dismissing Appellant’s Article 78 petition which challenged the determination by the Nassau County Police Officer Indemnification Board finding that Appellant was not entitled to defense or indemnification. COUNTERSTATEMENT OF QUESTIONS PRESENTED 1. Do the terms “proper discharge of duties” and “scope of employment” in General Municipal Law §50-1 have separate and distinct meanings? The courts answered in the affirmative. 2. Does the phrase “proper discharge of duties” require that one’s duties are discharged properly? The courts answered in the affirmative. 3. Is the Board’s determination founded on a rational basis, and thus not arbitrary and capricious? The courts answered in the affirmative. -1- STATEMENT OF FACTS A. BACKGROUND This case stems from a determination by the Nassau County Police Indemnification Review Board (hereinafter Board) that Nassau County would not defend or indemnify a police officer who knowingly withheld information which irrefutably showed that an incarcerated person could not possibly have committed the crime for which he was in custody. The Board was established in 1983 by an addition to the General Municipal Law. See, GML § 50-1. It is a creature of statute and this enactment sets forth the requirements for a board, its members, and their responsibility to make determinations. Id. GML § 50-1 states that whether an officer’s act/omission was committed within the “proper discharge and scope shall be determined by a majority vote of a panel...” Id. [emphasis added]. And, that panel shall “consist[] of one member appointed by the Nassau county board of supervisors, one member appointed by the Nassau county executive, and the third member being the Nassau county police commissioner or a deputy police commissioner.” Id. Appellant, a detective for the Nassau County Police Department (hereinafter referred to as “NCPD”), appeared before the Board seeking indemnification. Appellant was assigned to investigate a robbery which took place on March 26, -2- 2005. As a result of the investigation, Raheem Crews was arrested and later indicted as one of three (3) men involved in the robbery. R. 15. On June 1, 2005, Appellant learned that Crews was incarcerated on the date of the robbery, and, therefore, could not possibly have been involved in the commission of said robbery. R. 15. However, Appellant chose not to disclose this information to anyone. R. 15. Additionally, the arrest paperwork contained a typographical error, which indicated that the robbery in question took place on April 26, 2005, instead of March 26, 2005. R. 15. This error went unnoticed until September 2005, at which time Crews was released and the charges were dropped. R. 15. Thereafter, Crews commenced a lawsuit in the United States District Court, Eastern District of New York, against Respondents, alleging false arrest, false imprisonment, and various civil rights violations (“Crews Case”). R. 15. Initially, on July 28, 2006, the Board determined, pursuant to the authority granted to them by GML § 50-1, that the charges against Appellant were based on acts performed in the proper discharge of his duties and within the scope of his employment; at that time the Board was unaware that Appellant knowingly withheld Crews’ alibi. After Appellant was deposed in the Crews Case, it became apparent to the Board that Appellant failed to disclose exculpatory evidence; accordingly, the Board -3- reconsidered their initial determination and found that Appellant’s actions were not committed in the proper discharge of his duties. R. 16. During the deposition, Appellant testified that he knew on June 1, 2005, that Crews had an alibi for the robbery and chose not to inform anyone. R. 16. Specifically, he found out that Crews was incarcerated at the Nassau County Correctional Center and could not possibly have committed the robbery. R. 214-15. When asked what he did with the information, he stated “I kept it to myself’ and “[l]et the chips fall where they may.” R. 16. Based on this newly admitted fact, Lemma received a hearing, during which Lemma was represented by counsel. After the hearing, the Board reevaluated Appellant’s request for indemnification and found that the claims against Appellant were for acts not within the proper discharge of his duties and scope of his employment. R. 16; Letter from Board, R. 47-48 (dated April 8, 2009); Letter from Board, (dated May 22, 2009), R. 55. On May 22, 2009, after Appellant requested reconsideration, the Board upheld its finding that Appellant was not entitled to representation and indemnification. Letter from Board, R. 55 (dated May 22, 2009). Thereafter, on September 21, 2009, Appellant commenced an Article 78 proceeding in Supreme Court, Nassau County, challenging the Board’s decision and -4- requesting representation, indemnification, and reimbursement for legal fees. R. 16. On October 23, 2009, Respondents filed an Answer with Objections opposing the relief sought. See R. 64-77. On December 10, 2009, Justice Edward W. McCarty III held that the Board did not specifically enumerate the grounds for its determination and ordered a trial pursuant to CPLR 7804(h). R. 459-462; R. 14. B. SUPREME COURT TRIAL A full trial was conducted before the Supreme Court, Nassau County, from February 5, 2013 through February 7, 2013. R. 17. Five witnesses testified: Lawrence Mulvey, Francis Ryan, Stanley Kreitman, Susan Tokarski, and Appellant. R. 17. Commissioner Mulvey testified that in determining that the Board would not indemnify Appellant, Mulvey focused on Appellant’s statement that he kept the exculpatory alibi information to himself. R. 17, 505. Mulvey believed that the detective’s actions were not within the proper discharge of his duties or the scope of his employment. R. 17, 508. Moreover, “Mulvey specifically stated that he found [Appellant’s] words were an intentional choice to fail to act and, thus, not within the proper discharge of his duties, as opposed to [Appellant] having claimed he forgot to disclose the information.” R. 17. -5- Susan Tokarski, a Deputy County Attorney, testified that she was the legal adviser to the Board from 2003 to 2012. R. 17, 67. She said that it was the Board’s responsibility to carry out the purpose of General Municipal Law § 50-1- that is to determine whether to defend and indemnify a police officer. R. 529. She explained that to make that determination the Board must make a factual decision as to whether the officer acted in the “proper discharge of duties and scope of employment.” R. 530, 535. She testified that the terms “scope of employment” and “proper discharge of duties” were not defined in the relevant statute. R. 17-18, 531. Francis Ryan, a former Deputy County Executive and member of the Board, testified that “proper discharge of duties” meant acting as a police officer and performing while on duty. R. 18, 583, 585-86, 596. He further testified that Appellant’s failure to report information that could free a wrongly incarcerated person, was outside the scope of his duties and was not within the proper discharge of his duties. R. 18, 593-94, 597, 599. Ryan also testified that he found it significant that Appellant had opportunities to come forward before September 28, 2005, but failed to do so. R. 18, 594. Stanley Kreitman, the legislative appointee to the Board who has participated in over one-hundred (100) cases, testified that the two criteria for determining whether the County would provide representation and indemnification was to -6- determine whether there was a “proper discharge of duties” and whether the action was “within the scope of employment.” R. 611. Further, he testified that the Board’s determination was based on these two criteria and all the facts that were presented to the Board. R. 618. Appellant testified that he unintentionally forgot to follow up on the information that Crews was in jail the date of the robbery. R. 18. He testified that his statements at the deposition referred to his state of mind in 2009. R. 18-19. Appellant further stated that he had explained this to the Board during the hearing in April 2009. R. 19. Appellant testified that Crews was arrested based on information he received from Naquam Hughlett; that Crews was one of two other individuals involved in the robbery. R. 623. Crews was subsequently arrested on May 27th, 2005. R. 624. Appellant played no role in the arrest or arrest processing. R. 624. On June 1, 2005, the other suspect, Lorenzo Miller (“Miller”), was arrested. R. 625. During arrest processing Miller told Appellant that Crews was not present during the robbery. R. 626. As a result, Appellant checked the state computer system and found out that Crews was in jail on the date of the robbery. R. 626. However, Appellant decided not to relay this information to anybody. R. 627-7. He testified that instead of relaying said information, that he was concerned with -7- finishing the processing of Miller’s arrest and “unintentionally forgot” to come back to either investigate the exonerating evidence or let his supervisor know. R. 626- 627. Appellant further testified in the Article 78 proceeding that, on February 24, 2009, he testified in a deposition in the Crews Case. R. 629. When asked at the deposition what he did with the information he received that Crews was in jail on the date of the robbery, he stated, “I kept it to myself and said, ‘[l]et the chips fall where they may.’” R. 629-630. In a Decision and Order after trial, dated May 3, 2013, the Honorable Steven M. Jaeger dismissed Appellant’s petition, finding that there was a factual basis for Respondents denial of representation and indemnification. The Supreme Court rejected Appellant’s arguments and found that GML § 50-1 “gives the Board the responsibility to determine if an officer’s conduct occurred ‘in the proper discharge of his duties and within the scope of his employment” and that “proper discharge of duties” is “performing one’s duties correctly and appropriately.” Decision and Order after Trial (dated May 3, 2013), at 8, R. 21. The court further held that the “mere fact that an act was committed by an ‘on duty’ police officer does not mean it was committed in the proper discharge of his duties.” R. 21. Thereafter, on December -8- 18, 2013, Honorable Jaeger converted the decision and order after trial to a judgment, dismissing the petition. Appellant appealed to the Appellate Division for the Second Department. C. DECISION AND ORDER OF THE APPELLATE DIVISION, SECOND DEPARTMENT In its Decision and Order, the Appellate Division affirmed the decision of the Supreme Court, Nassau County. R. 715. The Appellate Division held that “[jjudicial review of administrative determinations not made after a quasi-judicial hearing is limited to whether the action taken by the agency was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion.” R. 716. They further held that Appellant identified an ambiguity but that “the legislative history of General Municpal Law § 50-1 and the enactment or amendment of other public employee indemnification statutes around the same time reveals that the Board’s interpretation is consistent with the legislative intent. The phrases ‘proper discharge of his duties’ and ‘within the scope of his employment’ were not intended to be interchangeable.” R. 717. Moreover, they held that the Board’s determination that Appellant’s “failure to notify anyone that an incarcerated arrestee could not possibly have committed the -9- robbery for which he was charged was not ‘committed while in the proper discharge of his duties’ was supported by the facts and was not arbitrary and capricious.” Moreover “[t]he statute vests the Board with the discretion to determine the issues of proper discharge of duties and scope of employment...” R. 718. Accordingly, the Appellate Division found that the Board’s determination was supported by a rational basis, and that “the Supreme Court properly denied the petition and dismissed the proceeding.” R. 718. By Order dated May 9, 2017, this Court granted Appellant leave to appeal. SUMMARY OF ARGUMENT The Appellant is seeking review of an Article 78 proceeding, which may only be reviewed to determine whether the Board’s decision was arbitrary and capricious. The Board’s determination is fully supported by a plain reading of § GML §50-1, its legislative history, and its decision is neither arbitrary nor capricious. Because GML § 50-1 is unambiguous and because the Board is charged with determining whether an officer’s acts/omissions are committed within the proper discharge of his duties and the scope of his employment, the Board’s determination must be upheld. -10- Appellant’s appeal, as limited by his brief, argues for a reversal on two points, namely, the holding of the Appellate Division is at odds with the precedent of this Court1; and, the legislative intent of the specific indemnification statute enacted for Nassau County mandates otherwise (See App. Brief at 16 et seq.). There is no merit to either claim. ARGUMENT IT IS UNEQUIVOCALLY CLEAR THAT GENERAL MUNICIPAL LAW § 50-L PROVIDES INDEMNIFICATION FOR OFFICERS WHO ACTED BOTH IN THE PROPER DISCHARGE OF THEIR DUTIES AND WITHIN THE SCOPE OF THEIR EMPLOYMENT BUT DOES NOT PROVIDE BLANKET IMMUNITY. There are no facts in dispute. The facts were, and are, conceded. The statutory and case law is succinct and clear. General Municipal Law § 50-1 states: Notwithstanding the provisions of any other law, code or charter, the county of Nassau shall provide for the defense of any civil action or proceeding brought against a duly appointed police officer of the Nassau county police department and shall indemnify and save harmless such police officer from any judgment of a court of competent jurisdiction whenever such action, proceeding or judgment is for damages, including punitive or exemplary damages, arising out of a negligent act or other tort of such police officer committed while in the proper discharge of his duties and within the scope of his employment. 1 Based on this Court’s holding in Saeal-Cotler v Bd. of Educ. of City School Dist. of City of New York. 20 NY3d 671 (2013). -11- Such proper discharge and scope shall be determined by a majority vote of a panel consisting of one member appointed by the Nassau county board of supervisors, one member appointed by the Nassau county executive, and the third member being the Nassau county police commissioner or a deputy police commissioner. A plain reading of GML § 50-1 clearly indicates that a Nassau County police officer shall be indemnified against judgments where the Board determines that the officer’s actions were both in “the proper discharge of his duties and within the scope of his employment.” GML§ 50-1. These are the exact words of the statute, not a judicial interpretation of when a police officer should be indemnified. It is well settled law that “[t]he legislative intent is to be ascertained from the words and language used, and the statutory language is generally construed according to its natural and most obvious sense, without resorting to an artificial or forced construction.” Frank v Meadowlakes Dev. Corp.. 6 NY3d 687, 692 (2006). In the instant matter, GML § 50-1 requires, in clear and unambiguous language, that the Board determine whether the officer’s act arose both in “the proper discharge of his duties” and “within the scope of his employment” as a basis for indemnification. See, GML § 50-1. Contrary to Appellant’s contentions, the two terms are not interchangeable. -12- The courts have routinely defined the term “scope of employment”, but neither the courts nor legislature have set forth any specific definition of the term “proper discharge of his duties”; therefore, the term must be defined by its common and ordinary meaning. The courts have consistently held that “[c]ommon words are to be given their commonly understood meaning unless another meaning is obviously intended.” Steinbeck v Gerosa. 4 NY2d 302 (1958) (citing to McKinney's Consol.Laws ofN.Y., Book 1, Statutes, s 232). See also. YanivethR. ex re?. Ramona S. v LTD Realty Co.. 27 NY3d 186 (2016) (holding that “we construe words of ordinary import with their usual and commonly understood meaning, and in that connection have regarded dictionary definitions as useful guideposts in determining the meaning of a word or phrase”). Furthermore, as the lower court held, “[t]here is nothing in the statute or its legislative history to suggest that any special or unique meaning should apply. Thus, ‘proper discharge of duties’ is performing one’s duties correctly or appropriately.” R. 21. Moreover, while the term “within the scope of his employment” may refer to acts performed while the officer is engaged in the business of his employer, “[t]he mere fact that an act was committed by an ‘on duty’ police officer does not mean it was committed in the proper discharge of his duties.” Id. -13- Appellant erroneously contends that the terms “proper discharge of his duties” and “within the scope of his employment” are interchangeable; however, this construction ignores a plain reading of the statute, is antithetical to the Board’s interpretation, and defies the legislative intent. A. A plain reading of the statute requires the officer’s acts be “proper”. As aforementioned, “the text of a provision ‘is the clearest indicator of legislative intent and courts should construe unambiguous language to give effect to its plain meaning.” Albany Law School v New York State Off, of Mental Retardation and Dev. Disabilities. 19 NY3d 106 (2012) (internal citations omitted). The language at issue is clear and unambiguous. Appellant’s argument, however, presumes an ambiguity in GML § 50-1. Appellant is really asking this Court to change the statute, ignore its directives, and to disregard the Board’s obligation to determine whether an officer is entitled to a defense and indemnification based upon the standard contained in the statute. Appellant argues for ignoring the presence of the term “proper” in order to homogenize the two (2) terms and eviscerate any distinguishing verbiage between “scope of employment” and “proper discharge of his duties.” -14- Appellant continuously utilizes the term “discharge of his or her duties” rather than the relevant term at issue, “proper discharge of his duties”. As set forth more fully below, the legislature intentionally inserted the term “proper” into the statute before the term “discharge of his duties”; and the Board properly considered the term when determining whether Appellant would be entitled to indemnification and defense. The Board’s interpretation of the statute requires an officer’s actions to be committed during the “proper discharge of his duties” as well as “within the scope of his employment”. B. The Nassau County Police Indemnification Review Board is charged with reviewing the officer’s conduct under GML § 50-1 and determining whether the conduct was committed during the “proper discharge of his duties” and “within the scope of his employment”. Because there is no ambiguity, there is no need to decipher what the legislature intended. They spelled it out. However, Appellant erroneously argues that this Court must consider the legislative intent to explain it. This is a red herring, pure sophistry, and a distraction from the obvious. If there was an ambiguity which required interpretation, the Board would be responsible for such interpretation. GML § 50-1 states that the “proper discharge and scope shall be determined by a majority vote of a panel...” - the Respondent Board is the panel. GML § 50-1. -15- It is settled law that “in case of doubt, or ambiguity ... the practical construction that has been given to a law by those charged with the duty of enforcing it, as well as those for whose benefit it was passed, takes on almost the force of judicial interpretation.” Robins v Blanev. 59 NY2d 393 (1983) (internal citations omitted). Appellant’s interpretation blatantly ignores the portion of the statute which states that “[s]uch proper discharge and scope shall be determined by a majority vote of a panel...” GML § 50-1. Appellant’s interpretation would provide blanket immunity for any officer on duty and would remove the need for a panel. This construction is averse to a plain reading of GML § 50-1. As previously stated, a plain reading of the statute reveals the clear legislative intent to require that an officer’s actions were committed both while in the “proper discharge of his duties” and “within the scope of his employment” and that the term “proper” meant the actions were correct or appropriate; similarly, the agency charged with interpreting and enforcing GML § 50-1 concluded that Appellant’s actions were not covered by GML § 50-1. Because the Board is charged with making the determination whether an officer fulfilled the statutory requirements, it cannot be overturned unless it is -16- arbitrary, capricious, and without rational foundation. This Board, with its mandated and varied/professional members, certainly knew what it was reviewing. See, eg, Kent v Lefkowitz. 27 NY3d 499 (2016) (courts have continuously held that agencies are entitled to deference in matters falling within its area of expertise, the Board’s determination must be upheld). C. The legislative history evinces an intent to prohibit blanket immunity and provide indemnification only where an officer acted properly. Although the Board’s interpretation is entitled to deference without any examination of legislative history, the Board’s interpretation is certainly supported, in fact bolstered, by a review of the legislative history. Because appellant argues in one of his only two points that the history of the statute requires a different conclusion than that of the Board and the two previous courts, Respondent is compelled to show otherwise. Contrary to Appellant’s argument, a legislative memorandum in support of GML § 50-1, justifying its enactment, states that “[t]his bill does not provide blanket immunity but would alleviate their concern that their actions, although proper, may subject them to personal liability.” Mem. in Support, Bill Jacket, p. 8, L.1983, ch. 872 [emphasis added]. See also. Galvani v Nassau County Police Indem. Review Bd.. 242 AD2d 64 (2d Dept 1998). This -17- memorandum in support evinces an intent to provide indemnification for police officers where their actions were proper, yet gave rise to personal liability. Furthermore, contrary to Appellant’s argument, it clearly states that GML § 50-1 would not provide blanket immunity. The legislative intent to require an officer’s actions to be proper can be further gleaned from the 10-Day Budget Report on Bills No. 3871-A of 1983, Senator John R. Dunne’s letter in support dated July 20, 1983, Assemblyman Arthur J. Kremer’s letter in support dated June 26, 1983, and a letter in support from the Superior Officers Association Police Department dated June 28, 1983. Looking first to the 10-Day Budget Report on Bills No. 3871-A of 1983, under section (4) “Arguments in Support” it states that “[b]y establishing a three-member panel to determine proper discharge and scope of a police officer’s duties, the County would retain local control over this issue. The panel would not prevent individuals from initiating court action against police officer, but would determine County liability for damages.” (10-Day Budget Report on Bills, Bill Jacket, p. 9, L.1983, ch. 872). In the case at bar, the Board determined that Appellant’s actions were improper thereby foreclosing his entitlement to indemnification and excluding the County from liability for damages. -18- In further support of Respondent’s arguments, Senator Dunne’s letter in support states that punitive damages have been included for consideration due to a reduced standard of proof required for punitive damages. Senator Dunne continues to say that [W]ith a reduced requirement of mens rea. more plaintiffs in such actions against police officers will be seeking awards of punitive damages. It is also probable that some jurors may have difficulty in understanding and applying the rather abstract distinctions between recklessness and negligence, and therefore may be more likely to award punitive damages in borderline situations.” (Letter in Supp., Bill Jacket, p. 12, L.1983, ch. 872). (emphasis in original). Senator Dunne’s letter evinces an intent to provide protection for officers who have acted properly, and within the scope of their duties, but may be liable for punitive damages because of the reduced standard of proof and abstract legal theories. Appellant fallaciously argues that punitive damages could never be awarded where an officer was properly discharging his duties. Contrary to Appellant’s conclusory assertion, as discussed above, an officer could act negligently while acting within the scope of his or her employment and while properly discharging his -19- or her duties; in such a situation, said officer may be covered by GML § 50-1.2 See. App. Brief 24. Furthermore, Assemblyman Kremer’s letter in support expressly contradicts Appellant’s argument. Assemblyman Kremer reiterated that “[t]he bill provides that the determination as to proper discharge of duty and scope of employment shall be made by majority vote of a panel...” and that the “bill does not provide a blanket immunity, but would alleviate the concerns of police officers that their action, although proper, may nevertheless subject them to personal liability...” (Letter in Supp., Bill Jacket, p. 14-15, L.1983, ch. 872) (emphasis added). In the case at bar, the Board voted and determined that the Appellant was not entitled to defense or indemnification. Finally, the Superior Officers Association’s letter in support states that “[t]he proposed bill does not provide blanket immunity so that a disregard for the consequence will result. The bill contains important safeguards against police officers abusing their authority. No action or omission occurring outside an officers fsicl proper performance of duty will be indemnified.” (Letter in Supp., Bill Jacket, p. 22, L.1983, ch. 872). (emphasis in original). This letter in support fully delves 2 Senator Dunne stated that GML § 50-1 includes punitive damages. See, App. Brief 24. -20- into the pitfalls of punitive damages which are unaccompanied by safeguards and “exacerbated by the fact that punitive damages are frequently based upon the caprice and prejudice of jurors.. Id. [internal citations omitted]. Officers may act properly yet be subject to “punitive damages fwhichl may be employed to punish unpopular defendants...” and because Uluries assess punitive damages in wholly unpredictable amounts bearing no necessary relation to the harm caused ... The police officer, as the most visible arm of government and upon whose shoulders rest the maintenance of peace and enforcement of laws is most open to the ingrained prejudice of the public. A jurors [sic] unfavorable decision could be based upon the receipt of an unrelated traffic citation and not necessarily the merits of the case before them. Id (emphasis in original). This letter clearly evinces an intent to ensure that the Board requires proper conduct on the part of the officer before they are shielded from “the possibility of damage awards unlimited by any harm they may have caused or foe feet that they acted with unquestioned good faith...” [Letter in Supp., Bill Jacket, p. 23, L.1983, ch. 872]. (emphasis in original). Contrary to the legislative history cited above, Appellant erroneously argues that the statute was devoid of any legislative history that equated proper discharge with proper conduct. See, App. Brief 23. Accordingly, the legislative history equates proper discharge of duties with proper conduct; officers are not provided -21- with blanket immunity but may be indemnified when the Board determines that their actions were proper. THE INTENT TO REQUIRE THAT THE ACT BE COMMITTED WHILE IN BOTH THE PROPER DISCHARGE OF DUTIES AND THE SCOPE OF EMPLOYMENT IS FURTHER EVIDENCED THROUGH A COMPARISON OF SIMILAR STATUTES FOR NEW YORK CITY, WESTCHESTER COUNTY AND SUFFOLK COUNTY A comparison of similar statutes from New York City, Westchester County and Suffolk County, further evidences Nassau County’s intent to indemnify a police officer who acted both in the proper discharge of his duties and within the scope of his employment. See. GML § 50-1; GML § 50-k; GML § 50-m; Westchester Laws of 1948 § 604, Ch. 842, L.L. No. 12-1979. Corresponding laws enacted for New York City and Westchester do not demonstrate the same concerted effort to require indemnification where an officer was acting both in the proper discharge of his duties and within the scope of his employment. Westchester only requires that the act occurred while the officer was “acting within the scope of his or her public duties.” Westchester Laws of 1948 § 604, Ch. 842, L.L. No. 12-1979. Westchester’s statute does not contemplate an officer’s discharge of duties, proper or otherwise. -22- New York City is governed by GML § 50-k, which was enacted in 1979, prior to the enactment of GML § 50-1 in 1983. GML § 50-k requires indemnification where an officer acted “within the scope of his public employment and in the discharge of his duties...” General Municipal Law § 50-k. The word “proper” is omitted from New York City’s governing statute and does not appear before the phrase “discharge of his duties”. Rather than mimic the language contained in GML § 50-k, the legislature made a concerted effort to insert the term “proper” before the phrase “discharge of duties”. Accordingly, Nassau County did not want the Board to indemnify employees who did not properly discharge their duties during the scope of employment. As aforementioned, the legislative history for GML § 50-1 is riddled with recommendations that consistently highlight that this indemnification legislation does not provide blanket immunity. Mem. in Support, Bill Jacket, p. 14-15, L.1983, ch. 872. Similarly, the GML provision which governs Suffolk County, mimics Nassau County’s indemnification legislation, requiring both proper discharge and within the scope of employment for indemnification. See. GML § 50-m. -23- Based on the forgoing, a comparison of Nassau County’s legislation with similar legislation of the surrounding counties further evinces Nassau County’s intent to require both “proper” discharge and within the scope of employment. The two phrases must be read as two distinctly definable clauses, that were not intended to be used interchangeably. By requiring the Board to judge an officer’s conduct through two prisms and find that both elements were met, the legislature ensured that Nassau County would not be burdened with liability, despite extending indemnification coverage to punitive damages on the rare occasion that arises out of proper, but negligent, conduct. APPELLANT’S RELIANCE ON THE COURT OF APPEALS’ INTERPRETATION OF EDUCATION LAW § 3028 IN THE SAGAL-COTLER CASE IS MISPLACED AND IS IRRELEVANT TO THIS CASE Appellant erroneously argues that the lower courts’ decision directly conflicts with this Court’s decision in the Matter of Saeal-Cotler. See. Saeal-Cotler v Bd. of Educ. of City School Dist. of City of New York. 20 NY3d 671 (2013). However, Appellant fails to properly distinguish the Court of Appeals ruling in Saeal-Cotler. and further fails to distinguish the distinction between Education Law § 3028 and General Municipal Law § 50-1. -24- Appellant’s argument is premised on the meritless theory that the statutory phrase “discharge of duties” seamlessly equates to the phrase “proper discharge of duties” and therefore, does not restrict the right of a defense to cases where an employee acted in the “proper and lawful discharge of his or her duties”. Furthermore, Appellant’s argument is based on the application of Education Law § 3028, which is irrelevant to the instant facts and further ignores the Court of Appeals’ reference to GML § 50-k, which is comparable to GML § 50-1. In Sagal-Cotler. it was undisputed that the petitioner had “no rights under section 50-k(2)...” which states that the city shall indemnify employees for acts that “corporation counsel finds occurred while the employee was acting within the scope of his public employment and in the discharge of his duties...” GML § 50-k(2). Even though said statute omits the term “proper”, the petitioner in Sagal-Cotler. would not have had a cause of action under GML § 50-k. Because that petitioner was not entitled to indemnification under GML § 50- k, that petitioner’s right to indemnification arose solely from Education Law § 3028, which is inapplicable to the case at bar. Education Law § 3028 provides, in pertinent part: Notwithstanding any inconsistent provision of any general, special or local law, or the limitations contained in the provisions of any city charter, each board of -25- education, trustee or trustees in the state shall provide for, and pay such attorney’s fees and expenses necessarily incurred in the defense of a teacher, member of a supervisory or administrative staff or employee, or authorized participant in a school volunteer program in any civil or criminal action or proceeding arising out of disciplinary action taken against any pupil of the district while in the discharge of his duties within the scope of his employment or authorized volunteer duties. Education Law § 3028. [emphasis added]. This Court has held “that the authors of Education Law § 3028 intended to provide a defense even where an employee’s [conduct] violated regulations.” Sagal- Cotler. supra. To support this decision, the Court explained that “[s]ection 3028 requires the City to provide an attorney not just in a civil case, but also in criminal cases, suggesting that the legislature wanted even employees who engaged in highly questionable conduct to be defended at public expense.” Sagal-Cotler. supra. It is evident that the Court of Appeals based its decision on the fact that the legislature included criminal actions in the law. On the contrary, GML § 50-1 contains no such language.3 The Court in Sagal-Cotler further states: 3 It goes without saying that punitive damages can arise from actions that are not criminal. Therefore, any attempt to equate these two statutes based on this variance in language would also be erroneous. -26- If the 1960 legislature meant to exclude cases in which [conduct] was forbidden by ... it could have done so explicitly. It could have said what the 1979 legislature said in General Municipal Law § 50-k (2): that there is no duty to provide a defense to an employee who has acted ‘in violation of any rule or regulation of his agency.’ Sagal-Cotler. supra. In enacting GML § 50-1, the legislature utilized language to ensure that there was no duty to provide a defense where an employee acted improperly. Unlike § 3028, but similar to GML § 50-k, GML § 50-1 describes the kind of duties an officer must discharge to be indemnified - “proper.” The Court of Appeals held that the isolated “statutory words ‘discharge of. . . duties’ do not restrict the right to a defense to cases where an employee acted in the proper and lawful discharge of his or her duties.” Sagal-Cotler. supra. By this reasoning alone, it is overwhelmingly clear, that the Court of Appeals based its decision on the wording of the law itself. Had the statute itself contained the word “proper” when describing how duties are to be discharged they certainly could not hold that the statute “does not restrict the right to a defense to cases where an employee acted in the proper and lawful discharge of his or her duties.” Sagal- Ortier. supra, [emphasis added]. If the legislature meant for the Board to provide a defense and indemnification to police officers for conduct that was against rules and regulations, that is, that was not proper, correct, or appropriate, they would have left the word “proper” out of the -27 - statute, as they did when they drafted Education Law § 3028. The word “proper” is not a mere appendix to a sentence. It is meant exactly as it is written and is the essence of the statute. While it is undisputable that investigating a robbery is a required responsibility of a police detective, it does not follow that a failure of a police officer to inform anybody that an innocent person has been incarcerated for a crime he did not commit was in the “proper” discharge of his duties. Conducting the investigation would be an example of the “discharge of his duties”, whereas, a police officer who ensures that innocent people are not incarcerated for crimes they did not commit and ensures that justice prevails, would be an example of proper discharge of duties. Appellant’s actions clearly show his conduct was not “proper.” Accordingly, Appellant’s erroneous and implausible attempt to correlate two entirely separate cases, on two very distinct statutes, must be rejected. -28- THE STANDARD OF REVIEW GOVERNING ARTICLE 78 CASES IS WHETHER THE DETERMINATION WAS ARBITRARY AND CAPRICIOUS; THE DETERMINATION OF THE NASSAU COUNTY POLICE INDEMNIFICATION REVIEW BOARD IS SUPPORTED BY ALL APPLICABLE RULES AND REGULATIONS AND THEREFORE WAS NOT ARBITRARY AND CAPRICIOUS. It should now be clear that appellant’s arguments are erroneous and intended to make this matter into something it is not. This is a review of an Article 78 proceeding, of a determination made by an agency after a complete presentation of all facts-a proceeding in which petitioner was represented by counsel and given every opportunity to present his case. It is well settled law that in a proceeding pursuant to CPLR §7803(3), a determination may only be set aside if it was “made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion...” CPLR § 7803(3). See also. Matter of D?Leonardo v. Nassau County Police Officer Indem. Bd.. 148 A.D.3d 701 (2d Dep’t 2017). This Court has held that “[a]n action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts”; however, “[i]f the court finds that the determination is supported by a rational basis, it must sustain the determination even if the court concludes that it would have reached a different result -29- than the one reached by the agency.” Peckham v Caloeero. 12 NY3d 424 (2009). Additionally, the courts have continuously held that agencies are entitled to deference in matters falling within its area of expertise. See, Kent v Lefkowitz. 27 NY3d 499 (2016). In the instant appeal, the Board’s determination to revoke Respondent’s indemnification was supported by a rational basis. As aforementioned, the Board is charged with interpreting GML § 50-1, and they made their determination based on a plain reading of the language contained with GML § 50-1. Similar to the holding in Dileonardo. infra, the “question of whether the [Respondent]ÿ acts which formed the basis of the [related] action were committed while in the proper discharge of his duties and within the scope of his employment is to be determined in the first instance by the Board.” Drlaonardo v Nassau Twiinty Police Officer Jndem. Bd.. 148 AD3d 701 (2d Dept 2017) (internal citations omitted). Additionally, the Board’s “determination may be set aside only if it was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion.” Id. (internal citations omitted). As was the case in Dileonardo. supra. “[t]hat standard was not met here. The record supports the Board's determination that the petitioner was not acting while in the proper discharge of his duties or within the scope of his employment, since there -30- is a factual basis for the conclusion that the alleged misconduct” was not undertaken in the appropriate discharge of Respondent’s duties. Dileonardo. supra. Based on a plain reading, the Board interpreted the term “proper discharge of his duties” to correlate to correct or appropriate discharge of one’s duties. Applying this interpretation to the undisputed facts of the case, the Board found that Respondent’s failure to alert anyone to the fact that “an incarcerated arrestee could not possibly have committed the robbery for which he was charged was not committed while in the proper discharge of his duties”. R. 715 (internal quotations omitted). That statutorily permitted conclusion by the Board is certainly rational and supported by the undisputed facts. The interpretation of GML § 50-1 is vested solely in the Board and “courts must defer to an administrative agency's rational interpretation of its own regulations in its area of expertise.” Peckham v Caloeero. 12 NY3d 424 (2009). In accordance with the Board’s interpretation, Respondent is not entitled to indemnification. Based on the foregoing, the Board’s decision to revoke Respondent’s indemnification was based on the facts and circumstances surrounding the instant case as well as a plain reading of the governing statute, GML § 50-1. And, as aforementioned, where there is a rational basis for the decision a Court may not disturb it. Matter of PeJ.1 v. Board of Educ. of Union Free School Dist. No. 1 of -31- Towns of Scarsdale & Mamaroneck. Westchester County. 34 N.Y.2d 222, 356 N.Y.S.2d 833, 313 N.E.2d 321 (1974). If a police officer’s utter disregard for a person’s freedom constitutes “proper” conduct, it is hard to ascertain what actions, if any, would constitute improper conduct. The lower courts’ findings and Orders must be affirmed. CONCLUSION The Order of the Appellate Division, Second Department, entered February 1, 2017, affirming the Order of the Supreme Court, County of Nassau, entered December 20, 2013, dismissing Petitioner-Appellant’s petition should be affirmed in all respects, together with costs and disbursements. Dated: November 08, 2017 Mineola, New York Yours, etc. Hon. Camell T. Foskey Nassau County Attorney Attorney for Respondents- Respondents 1/W (hvUjd ” Robert F. Van Der Waag Deputy County Attorney One West Street Mineola, New York 11501 (516)571-3954 aPBy: 6 -32- Certification of Compliance I hereby certify pursuant to § 500.l(j) of the Rules of this Court that this brief was prepared on a personal computer in Times New Roman True-Type 14 point font, double-spaced, with footnotes in Times New Roman True-Type 12 point font, single-spaced, and contains 6,861 words. Robert F. Van Der Waag, Esq. Signature on brief deemed a representation of the accuracy of this certificate per Rule 500.1(a). -33-