In the Matter of Nicholas Lemma, Appellant,v.Nassau County Police Officer Indemnification Board, et al., Respondents.BriefN.Y.May 2, 2018To be Argued by Mitchell Garber Time Requested: 20 minutes Court of Spprate State of New York APL-2017-00092 in the Matter of the Application of NICHOLAS LEMMA, Petitioner-Appellant, For a Judgment under Article 78 of the Civil Practice Law and Rules, -against- NASSAU COUNTY POLICE OFFICER INDEMNIFICATION BOARD, LAWRENCE MULVEY, as Commissioner, NASSAU COUNTY POLICE DEPARTMENT and NASSAU COUNTY, Respondents-Respondents. REPLY BRIEF OF PETITIONER-APPELLANT NICHOLAS LEMMA WORTH, LONGWORTH & LONDON, LLP Attorneys for Nicholas Lemma 111 John Street, Suite 640 New York, New York 10038 (212) 964-8038 Fax (212) 964-8164 Brief Completed November 27, 2017 APPELLATE MANAGEMENT SERVICES (640) 522-3834 (Reproduced on Recycled Paper) i TABLE OF CONTENTS TABLE OF AUTHORITIES ....................................................................... iii PRELIMINARY STATEMENT ................................................................... 1 ARGUMENT ................................................................................................ 2 POINT I THE LANGUAGE OF GENERAL MUNICIPAL LAW §50-L IS INDISPUTABLY AMBIGUOUS (REPLYING TO RESPONDENTS’ BRIEF, POINT I & IA. AT PP. 11-14) .............. 2 POINT II THE NASSAU COUNTY POLICE INDEMNIFICATION BOARD WAS UNABLE TO PROPERLY DETERMINE WHETHER THE CONDUCT WAS COMMITTED DURING THE “PROPER DISCHARGE OF HIS DUTIES” AND “WITHIN THE SCOPE OF HIS EMPLOYMENT” (REPLYING TO RESPONDENTS’ BRIEF, POINT IB. AT PP. 15-16) ........................... 4 A. The Board member’s subjective application of the term “proper discharge” renders its decision arbitrary and capricious. ............................................................................... 4 B. The term “proper discharge of duties” in §50-l is impermissibly vague. ..................................................................... 7 POINT III THE RESTRICTIVE INTERPRETATION OF THE MEANING OF THE WORD “PROPER” IN §50-L URGED BY RESPONDENTS IS INCONSISTENT WITH THE LEGISLATIVE INTENT AND LEGISLATIVE HISTORY (REPLYING TO RESPONDENTS’ BRIEF, POINT IC. AT PP. 15-22) .......................................................................................... 9 ii POINT IV THE COURT OF APPEALS HOLDING IN SAGAL-COTLER IS CONTROLLING (REPLYING TO RESPONDENTS’ BRIEF AT PP. 24-28) ........................................................................... 15 POINT V THE DETERMINATION OF THE NASSAU COUNTY POLICE INDEMNIFICATION BOARD IS INCONSISTENT WITH ITS OWN PRIOR DECISIONS RENDERING IT ARBITRARY AND CAPRICIOUS (REPLYING TO RESPONDENTS’ BRIEF AT PP. 29-32) ............................................. 17 A. The Board’s determination in the Buonora case. ........................ 18 B. The Board’s determination in Johanna Bird case. ....................... 19 CONCLUSION ........................................................................................... 20 iii TABLE OF AUTHORITIES Case Page(s) 164th Bronx Parking, LLC v. City of New York, 862 N.Y.S.2d 248 (N.Y. Sup. Ct. 2008). ................................................. 8 Joseph v. City of Buffalo, 83 N.Y.2d 141 (1994) ............................................................................ 15 Laurie Marie M. v. Jeffrey T.M., 159 A.D.2d 52 [3d Dept.1991] .............................................................. 12 Matter of Nicholas v. Kahn, 47 N.Y.2d 24 (1979). ........................................................................... 8, 9 Matter of Raritan Dev. Corp. v. Silva, 91 N.Y.2d 98 [1997] ................................................................................ 3 Matter of Sagal-Cotler v. Board of Educ. of the City of N.Y., 20 N.Y.3d 671 (2013). ............................................................... 15, 16, 17 Matter of Williams v. City of New York, 64 N.Y.2d 800 (1985) ............................................................................ 15 Matter of Yong-Myun Rho v. Ambach, 74 N.Y.2d 318 [1989]. ............................................................................. 3 Timber Point Homes, Inc. v. County of Suffolk, 155 A.D.2d 671 (2d Dept. 1989). ............................................................ 8 Statute CPLR 7803(3) ............................................................................................... 7 McKinney's Consol. Laws of NY, Book 1, Statutes § 73 ............................ 3 McKinney's Consol.Laws of N.Y., Book 1, Statutes §94 ............................ 3 McKinney's Consol.Laws of N.Y., Book 1, Statutes § 111 ......................... 3 iv McKinney's Consol.Laws of N.Y., Book 1, Statutes § 120 ......................... 4 General Municipal Law § 50-l ............................................................. passim Secondary Sources Lane, Eric (1999) “How to Read a Statute in New York: A Response to Judge Kay and Some More,” Hofstra Law Review: Vol. 28: Iss.1. Article 3 ................................................................. 13 1 PRELIMINARY STATEMENT This brief is submitted by Petitioner-Appellant, Nicholas Lemma (“Appellant” or “Lemma”) in reply to the arguments contained in Respondents’ brief. 2 ARGUMENT POINT I THE LANGUAGE OF GENERAL MUNICIPAL LAW §50-L IS INDISPUTABLY AMBIGUOUS (REPLYING TO RESPONDENTS’ BRIEF, POINT I & IA. AT PP. 11-14). Respondents boldly assert that the language of General Municipal Law §50-l (“§50-l”) is “unequivocally clear,” an interpretation specifically rejected by the Appellate Division. (Respondents’ brief, hereinafter “RB” at p. 11) The ambiguity in the statute recognized by the Second Department has particular meaning because, as conceded by Respondents, while the courts have had numerous occasions to define the term “scope of employment,” … “neither the courts nor legislature have set forth any specific definition of the term “proper discharge of his duties.” (RB at 13) As amply demonstrated to the courts below, left without any instruction of the definition of this statutory requirement, the Board improperly substituted its own, rendering its determination arbitrary and capricious as a matter of law. In arguing for a “plain reading” interpretation of §50-l, Respondents state that since the “exact words of the statute” contain both the phrases “proper discharge of his duties” and “scope of employment,” it is “clear and unambiguous.” (RB at 12) This argument is misleading because it implies that the 3 word “both” is present in the statute, which it is not. It is precisely this lack of clarity or definition that was recognized by the Appellate Division. Under the “plain meaning” rule, when the language of a statute is clear, the courts give effect to the plain and ordinary meaning of the words. (See, McKinney's Consol.Laws of N.Y., Book 1, Statutes §94) However, when aid to construction of the meaning of words or phrases as used in a statute are available, there is no rule of law which forbids their use, no matter how clear the words may appear on initial examination. (See, Matter of Raritan Dev. Corp. v. Silva, 91 N.Y.2d 98 [1997]) Moreover, the “plain meaning rule” will not apply where a reading gives use to absurd or mischievous consequences or thwarts a manifest purpose. Id. In such cases, contextual approach directs that courts will construe the details of a statute in conformity with its dominating general purpose and will read a text in light of context and will interpret the text so far as the meaning of the words fairly permits as to carry out in particular cases the generally expressed legislative policy. (See, McKinney's Consol.Laws of N.Y., Book 1, Statutes § 111) Therefore, courts may look behind the words of a statute when the law itself is doubtful or ambiguous. (See, Matter of Yong-Myun Rho v. Ambach, 74 N.Y.2d 318 [1989]) The purpose and object of a statute may properly be considered as an aid to its interpretation. (See, McKinney's Cons Laws of NY, Book 1, Statutes § 73) Further, statements of the draftsman of the statute are properly considered in 4 determining the legislative intent. (McKinney's Consol.Laws of N.Y., Book 1, Statutes § 120) Here, in the face of the ambiguity in the statute, the Appellate Division properly considered, but, as set forth below, misinterpreted the legislative history, of §50-l. POINT II THE NASSAU COUNTY POLICE INDEMNIFICATION BOARD WAS UNABLE TO PROPERLY DETERMINE WHETHER THE CONDUCT WAS COMMITTED DURING THE “PROPER DISCHARGE OF HIS DUTIES” AND “WITHIN THE SCOPE OF HIS EMPLOYMENT” (REPLYING TO RESPONDENTS’ BRIEF, POINT IB. AT PP. 15-16) Respondents assert that “if there was an ambiguity which required interpretation, the Board would be responsible for such interpretation.” (RB at 15) Given that the term “proper discharge of his duties” is not defined by the statute, the Rules and Regulations of the Board, or by the legal instructions given by the Assistant County Attorney acting as their legal advisor, the Board members were left to improperly rely upon their own subjective beliefs in making their determination. A. The Board member’s subjective application of the term “proper discharge” renders its decision arbitrary and capricious. Respondents contend that the “Board, with its mandated and varied/professional members, certainly knew what it was reviewing.” (RB at 17) The trial record directly contradicts this notion. Board member former 5 Commissioner Mulvey defined the term “proper discharge of duties” as performing the duties of a police officer properly, consistent with their sworn oath of office. (R.-481) Board member former Deputy County Executive Ryan understood the term “proper discharge of duties” to mean “the officer performing his task as a police officer and performing those tasks … in the line of duty.” (R. – 583) Based upon Ryan’s understanding of the term, so long as an officer was acting as a police officer he was within the proper discharge of duties. (R. – 583) Ryan testified that he believed the fact that Appellant made a mistake “took his conduct outside the protection of § 50-l,” thereby disqualifying him from representation. (R. – 593- 594) Board member former Legislative appointee Kreitman testified at trial that he did not have a specific understanding of the definition of the term proper discharge of duties at the time he served as board member, but, rather, “everyone used their common sense and general background and knowledge.” (R. – 611, 613) Reflecting his subjective belief in the absence of adequate instruction of the statutory criteria, Kreitman testified that he “felt [Appellant’s answer at the deposition] was a little arrogant … and disingenuous,” thereby justifying revocation of indemnification. (R. – 616) Given the ambiguity in the language of §50-l, the failure of the legal advisor 6 of the Board (the County Attorney’s Office) to define the requisite terms or give adequate instructions regarding the factors to be considered makes meaningful review of the factual basis for the Board’s determination impossible. While indisputably under §50-l intentional conduct or acts which could give rise to punitive damages are not excluded from coverage, the Rules and Regulations of the Board do not contain these provisions (R. – 537, 541, 543) and (according to the transcripts of both Board proceedings) the Board was never instructed as to Appellant’s statutory entitlement to coverage for these types of acts. These omissions are particularly important given that the Board reversed its initial decision to represent and indemnify Appellant based on its interpretation of his answer to a question during his deposition in the underlying civil proceeding. Mulvey testified at trial that “he focused completely and based his decision on [Appellant’s] answer,” which he characterized as a “mistake of the heart,” bringing it out of the “context of the scope of employment.” (R. – 505) By the failure to be instructed that intentional conduct could still entitle Appellant to the protection of § 50-l, Mulvey lacked a sufficient basis to make a rational determination. Equally egregious, Ryan testified at trial that based upon his knowledge of §50-l at the time of the May 22, 2009 board proceeding, intentional conduct would preclude an officer from representation pursuant to the statute. (R. – 604) 7 Clearly, the failure to instruct the Board of Appellant's statutory entitlement to coverage for intentional conduct or for acts potentially giving rise to punitive damages deprived Appellant of lawful procedure and rendered the Board’s determination arbitrary and capricious within the meaning of CPLR 7803(3). The record amply demonstrates that because the legal advisor failed to properly perform her function by defining the operative terms “proper discharge of duties” and “within the scope of employment” or instructing the Board of the criteria to be applied in its analysis, the Board members were left to apply their own subjective definitions and personal notions. Under these circumstances, the Board was unable to meet its statutory obligation to review the conduct at issue and, as such, its determination lacked a rational basis and its arbitrary and capricious within the meaning of CPLR 7803(3). B. The term “proper discharge of duties” in §50-l is impermissibly vague. It is undisputed that §50-l does not define the term “proper discharge” of a police officer’s duties. In the absence of a definition, the Board created its own. In rejecting Appellant’s arguments, the lower court defined the term as “performing one’s duties correctly or appropriately.” (R. - 21)1 By failing to define the term, the Legislature left it to both the Board and the courts below to guess at its 1 Appellant has consistently maintained that it is not the act that is required to be “proper” or “appropriate,” but that the act itself took place while the police officer was properly discharging or conducting his duties. (See, Appellant’s main brief at pp. 17-18). 8 meaning. As a result, § 50-l, which mandates that “proper discharge and scope shall be determined by a majority vote” of the Board is impermissibly vague on its face and as applied. Legislative delegation is permissible “only if the legislature limits the field in which the agency’s discretion is to operate and provides standards to govern its exercise.” 164th Bronx Parking, LLC v. City of New York, 862 N.Y.S.2d 248, 257 (N.Y. Sup. Ct. 2008). In exercising the authority delegated an administrative agency pursuant to enabling legislation, the agency must “articulate objective standards against which an ultimate determination could be measured.” In the Matter of Nicholas v. Kahn, 47 N.Y.2d 24 (1979). The “promulgation of adequate standards [serves] to safeguard against arbitrary administrative action and to ensure meaningful judicial review.” Timber Point Homes, Inc. v. County of Suffolk, 155 A.D.2d 671 (2d Dept. 1989). In the absence of statutory or judicial definition of “proper discharge” of a police officer’s duties or adequate guidance regarding the standards to be applied in making their determination, the Board members impermissibly relied upon their subjective beliefs. As set forth above, Board member Mulvey defined the term as performing the duties of a police officer, consistent with their sworn oath of office. Board member Ryan understood the term to mean “the officer performing his task as a police officer and performing those tasks … in the line of duty.” Moreover, 9 based upon his understanding of the term, so long as an officer was acting as a police officer he was within the proper discharge of duties. Board member Kreitman did not have a specific understanding of the definition of the term but “everyone used their common sense and general background and knowledge.” As proven by Appellant at trial, the Legislature and the Board have failed to articulate objective standards by which their ultimate decision could be evaluated. See In the Matter of Nicholas v. Kahn, 47 N.Y.2d 24, 33 (1979). It is this lack of direction, or vagueness on its face and as applied, which renders its decision arbitrary and capricious as a matter of law. POINT III THE RESTRICTIVE INTERPRETATION OF THE MEANING OF THE WORD “PROPER” IN §50-L URGED BY RESPONDENTS IS INCONSISTENT WITH THE LEGISLATIVE INTENT AND LEGISLATIVE HISTORY (REPLYING TO RESPONDENTS BRIEF, POINT IC. AT PP. 15-22) The restrictive interpretation of “proper” argued by Respondents renders the legislative intent of §50-l to include imperfect conduct meaningless. Using Respondents definition, no conduct giving rise to civil liability could ever be “proper” because, by definition, it would not be correct. Although the statutory language is ambiguous, as recognized by the Appellate Division, the legislative intent is clear. During the discussion of §50-l in the New York State Senate 10 immediately prior to passage, the bill’s sponsor, John R. Dunne, explained to his colleagues that “[i]t provides that, where a police officer is sued for damages arising out of the course of his employment as a police officer, the county of Nassau will not only commit to represent and defend the officer but also to indemnify him against any award that will be made as a result of those proceedings.” (R.- 61) During the bill’s debate, Senator Dunne dispelled any doubt about the legislative intent to include imperfect or improper conduct when he replied affirmatively that the bill would indemnify even if the actions of the officer were wrong. (R.-62). Senator Dunne went even further, stating that the bill covered “willful misconduct,” which he admitted in response to a colleague’s question was unprecedented [in comparable representation and indemnification statutes]. (R.-62-63) Respondents argue in their brief that an officer could act negligently while acting within the scope of his or her employment and while properly discharging his or her duties and may be covered by § 50-l. (RB at pp. 19-20) This position is impossible to reconcile because, by definition, a negligent act giving rise to liability can never be considered “correct” or “appropriate.” Applying this twisted logic, §50-l would be effectively repealed because no act that gives rise to a finding of negligence, or determined to be “willful misconduct,” could ever be considered “correct” or “appropriate” under Respondents’ rules. To the extent that 11 Respondents contend that the Board could decide to cover an officer found to be negligent, this argument fails because of the complete lack of instruction or guidance regarding the meaning of “proper discharge of duties.” Without direction, the Board is left to the individual member’s subjective interpretation, which as here, compels an arbitrary and, therefore, improper decision. (See, Point II above). Contrary to Respondents’ characterization, Appellant does not assert that §50-l confers “blanket immunity” necessitating representation and indemnification of all police officers, irrespective of their actions. Appellant has consistently maintained, in accord with the intent of the drafters, that the phrases “proper discharge of duties” and “scope of employment” in §50-l are conflated, to be read interchangeably. It is not the act that is required to be “proper” or “appropriate,” but that the act itself took place while the police officer was properly discharging or conducting his duties.2 This is the only rational interpretation which gives 2 Two examples are illustrative of this interpretation: 1) A police officer on patrol in uniform and in a marked car continues to chase a fleeing vehicle, intentionally disregarding a supervisor’s radio call to terminate the pursuit. While driving in excess of the speed limit, he enters an intersection against a red light during rush hour and broadsides a vehicle, causing injury to its occupants. The officer arguably engaged in textbook reckless conduct because he consciously disregarded the risk that his actions could cause the accident. Under §50-l, he would be entitled to representation and indemnification because the act, although in violation of the Vehicle & Traffic Law and Department rules, took place while in the proper performance of his duties – namely uniform patrol in a police vehicle. 2) A police officer on patrol in uniform and in a marked car uses his authority as a police officer to pull over a female motorist for a traffic infraction and engages in improper sexual contact. Although the officer engaged in intentional conduct which is not excluded under §50-l, he would not be entitled to representation and indemnification because the act, pulling over the 12 meaning to the legislative intent to protect Nassau County police officers in civil actions, even for acts or omissions deemed intentional or giving rise to punitive damages. Here, the acts giving rise to the allegations in the civil action took place while Appellant was investigating a robbery, which indisputably is a required responsibility of a police detective and, accordingly, was in the “proper discharge” of his duties. Following the logic of Respondents’ “proper conduct” argument, virtually all civil judgments would preclude coverage under §50-l. An officer liable for assault and battery is, by definition, liable for “intentional wrongdoing,” which, of course, could never be considered “proper conduct” of a police officer. (See Laurie Marie M. v. Jeffrey T.M., 159 A.D.2d 52, 55 [3d Dept.1991][The elements of a battery claim are offensive bodily contact made with the intent to make contact.]). An officer found liable for false arrest or using unreasonable or excessive force would also not be entitled to the protection of the statute because clearly making an arrest without probable cause or using unnecessary force is not “performing one’s duties correctly or appropriately.” Respondents’ restrictive interpretation would give virtually unreviewable discretion to the Board to define what is “proper,” a result obviously inconsistent with the legislative intent. Given the specificity of the motorist under the guise of a traffic infraction for the purpose of a personal pursuit, can never be considered in the proper performance of his duties. 13 coverage provided, had the Legislature intended to restrict the benefits of §50-l to employees performing their duties “correctly” or “appropriately,” it certainly would have included the limiting language such as contained in the comparable representation and indemnification statute involving New York City employees, General Municipal Law §50-k.3 The failure to so limit evinces the legislative intent to include imperfect conduct. Respondents’ recitation of the legislative history to support its “proper conduct” argument is unpersuasive. It is axiomatic that not all pieces of legislative history are equally probative. As one commentator has remarked, “[f]or a piece of legislative history to be probative of legislative intent, it must bear a significant relationship to the enactment process.” See, Lane, Eric (1999) “How to Read a Statute in New York: A Response to Judge Kay and Some More,” Hofstra Law Review: Vol. 28: Iss.1. Article 3.4 Professor Lane distinguishes statements by the sponsor of the bill or the particular provision at issue and discussion between the 3 Under §50-k, the City is obligated to indemnify and hold harmless provided “that the act or omission from which such judgment or settlement arose occurred while the employee was acting within the scope of his public employment and in the discharge of his duties” and “was not in violation of any rule or regulation of his agency at the time the alleged damages were sustained.” (emphasis added) Moreover, the duty to indemnify and hold harmless “shall not arise where the injury or damage resulted from intentional wrongdoing or recklessness on the part of the employee” and if a disciplinary proceeding was brought, “representation …. and indemnification …. may be withheld (a) until such disciplinary proceeding has been resolved and (b) unless the resolution of the disciplinary proceeding exonerated the employee as to such act or omission.” (emphasis added) 4 Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol28/iss1/3. Last accessed: November 21, 2017. 14 legislators concerning a provision from materials generated post-passage contained in the Bill Jacket. Since almost all materials contained in the Bill Jacket are “executively generated passage documents,” they do not reflect the “institutional legislative history or even legislatively generated legislative history.” Id. Rather, the bill jacket, including the 10-day reports referred to by Respondents, are post facto statements on the meaning of the statute. Id. Here, the intent of Senator John R. Dunne, §50-l’s sponsor in the New York State Senate, is clear and unambiguous. In the colloquy with his Senate colleagues, Jenkins and Halperin, he unequivocally stated the bill’s intention to cover conduct found to be “wrong,” even if determined to be willful misconduct. In response to Senator Halperin’s question, Senator Dunne stated that the bill’s coverage of Nassau County police officers for “willful misconduct” was unprecedented compared to other public employees. (R.-62-63) Thereafter, the Senate Bill was passed by a vote of 47 in favor, 11 opposed, with the two Senators questioning the extent of the unprecedented coverage, Jenkins and Halperin voting against passage. (R. – 63) As “legislatively generated legislative history,” the legislative intent reflected in this dialogue is clear and compelling. Moreover, the letter of support of the bill by Senator Dunne, dated July 20, 1983, supports Appellant’s position that the phrases “proper discharge of duties” and “scope of employment” in §50-l were intended to be conflated and read 15 interchangeably. Senator Dunne, as the bill’s sponsor in the Senate, discussed the scope of the bill’s coverage and explained that its provisions were predicated on a determination by a three member panel “the police officer was acting within the scope of his employment at the time the acts complained of occurred. (R. – pp. 58- 59) This letter, combined with the other cited examples of the institutional legislative history, are the clearest indicia of the true legislative intent and must be given meaning by this Court. As demonstrated, the decision of the Appellate Division is inconsistent with the legislative history of § 50-l and must be rejected. POINT IV THE COURT OF APPEALS HOLDING IN SAGAL-COTLER IS CONTROLLING (REPLYING TO RESPONDENTS’ BRIEF AT PP. 24-28). In Sagal-Cotler, the Court of Appeals ruled unequivocally that the terms “scope of employment,” “discharge of duties” and similar phrases have long been regarded as interchangeable. Matter of Sagal-Cotler v. Board of Educ. of the City of N.Y., 20 N.Y.3d 671, 676 (2013). See Joseph v. City of Buffalo, 83 N.Y.2d 141, 145 (1994)[the Court made no distinction between the phrases in considering whether a police officer was acting “in the performance of his duties and within the scope of his employment” within the meaning of General Municipal Law § 50–j]; see also In Matter of Williams v. City of New York, 64 N.Y.2d 800, 802 (1985)[it 16 was a “single” issue whether petitioner's acts were committed within the scope of his public employment and the discharge of his duties.”]. Moreover, the legislative history of §50-l shows the intent to treat the terms as a single issue. As set forth above, Senator Dunne, in his own words, conflated the provisions when writing a letter in support of the bill. (See, R. – pp. 58-59) Based on the language of comparable representation statutes, the Sagal- Cotler Court concluded that it did not read the statutory words “discharge of ... duties” to restrict the right to a defense to cases where an employee acted in the proper and lawful discharge of his or her duties.” In concluding that the authors of the law intended to provide a defense even where an employee's conduct violated regulations, the Court reasoned that since the law required the City to provide counsel not just in civil but also in criminal cases, it evinced an intent to defend even employees who engaged in highly questionable conduct. Sagal-Cotler, 20 N.Y.3d at 676. Respondents’ attempt to distinguish the Sagal-Cotler holding is unpersuasive. Here, consistent with the reasoning of Sagal-Cotler, a police officer is entitled to be represented and indemnified even when engaged in “highly questionable conduct” that is (in the words of §50-l’s Senate sponsor) “wrong” or “willful.” Moreover, as admitted by the legal advisor to the Board at trial, intentional acts (the very type of acts that could lead to punitive damages) are not excluded from coverage under § 50-l. (R-537) 17 Respondents’ argument that the inclusion of the word “proper” in § 50-l limits the holding in Sagal-Cotler is equally unavailing (RB at p. 27). Had the legislature intended to exclude acts in violation of the employer’s rules, it would have done so explicitly. “Indeed, 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, 20 N.Y.3d at 676. Section §50-l contains no such language. The failure to so limit evinces the legislative intent to include imperfect conduct and this Court should reject Respondents argument in its entirety. POINT V THE DETERMINATION OF THE NASSAU COUNTY POLICE INDEMNIFICATION BOARD IS INCONSISTENT WITH ITS OWN PRIOR DECISIONS RENDERING IT ARBITRARY AND CAPRICIOUS (REPLYING TO RESPONDENTS’ BRIEF AT PP. 29-32) While the question of whether Appellant’s acts 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, it will be set aside if it was arbitrary and capricious or an abuse of discretion. Respondents assert that Board’s determination to revoke Respondents’ indemnification was supported by a rational basis, based on a plain reading of §50-l. (RB at p. 30) To the contrary, as set forth by the record, the Board held Appellant to a different standard than in at least two other cases and, as such, acted arbitrarily. 18 A. The Board’s determination in the Buonora case. A Nassau County Police Indemnification Board convened on November 16, 2007 to consider the representation and indemnification of a Nassau County Police Officer, Buonora, in a federal lawsuit alleging that he had falsely arrested, falsely charged, falsely detained and kept a person in jail by lying about the circumstances of the recovery of a firearm. (R. – 373-375; 511-518) Buonora was indicted by the Grand Jury for perjury based on his false testimony, under oath, before the grand jury. Buonora pled guilty to the crime of Perjury in the Third Degree, admitting that he lied under oath about the recovery of a firearm, resulting in the defendant being indicted for felony weapons possession. After the false testimony came to light, the criminal charges against the defendant had to be dismissed. Buonora was sentenced to three years probation in the criminal case and found guilty of departmental charges, resulting in severe discipline. Id. Although the Nassau County Police Indemnification Board initially declined to represent and indemnify Buonora under §50-l, on March 14, 2008, the Board reconsidered and granted Buonora's appeal, determining that his actions were in the proper discharge of his duties and in the scope of his employment, notwithstanding that he admittedly perjured himself regarding the circumstances of 19 the recovery of the firearm, resulting in his conviction of a crime and the dismissal of criminal charges against the defendant. Id. Mulvey, a Board member in Appellant’s case, was also a Board member in the Buonora matter. Id. There can be no argument that perjurious testimony by a police officer before a grand jury, resulting in a criminal conviction and departmental discipline, is “proper conduct” under any definition. Yet, the Board in Buonora, close in time to the Board’s determination in Appellant’s case, extended coverage to Buonora while denying Appellant the same. B. The Board’s determination in Johanna Bird case. On July 16, 2010, the Nassau County Police Indemnification Board convened to consider representation and indemnification of the officers named as defendants in a lawsuit alleging that the defendants were grossly negligent, reckless, indifferent and/or intentionally and recklessly breached their duty to plaintiff which directly caused her death. Mulvey, a Board member in Appellant’s case, was also a Board member in the Bird matter. (R. 520 – 523) As a result of the homicide of Johanna Bird, there were two investigations conducted into the death of [Johanna] Bird by the Nassau County Police Department Internal Affairs Unit, which resulted in disciplinary charges being filed against certain members of the Department. Id. Although some of the officers being considered for representation and indemnification had open 20 departmental disciplinary proceedings resulting from the investigation of their conduct, the Board granted those officers representation and indemnification. Id. Clearly, the actions of the officers resulting in disciplinary charges are not “correct” or “appropriate” but, as in the Buonora matter, the Board applied a different standard than that to Appellant. Respondents argue that §50-l requires that an officer’s conduct be “proper” in the sense that it be “correct” or “appropriate” and that the Board is charged with this determination. As demonstrated above, the Board determinations in Buonora and Bird, both rendered close in time to Applellant’s, cannot be reconciled with Respondents’ position, rendering the Board’s decision not to represent and indemnify Appellant arbitrary and capricious. CONCLUSION THE APPELLATE DIVISION’S DECISION DENYING APPELLANT REPRESENTATION AND INDEMNIFICATION SHOULD BE REVERSED Respectfully submitted, WORTH, LONGWORTH & LONDON, LLP Attorneys for Appellant Nicholas Lemma __________________________ Mitchell Garber Of Counsel New York, New York November 22, 2017 21 WORD COUNT CERTIFICATION The foregoing brief was prepared on a computer. A proportionally spaced typeface was used as follows: Name of typeface: Times New Roman Point Size: 14 Line Spacing: Double space. The total number of words in the brief inclusive of point headings and footnotes and excluding pages containing, table of contents, table of authorities, proof of service and questions presented is 4544. Respectfully Submitted, WORTH, LONGWORTH & London LLP Attorneys for Petitioner/Appellant Nicholas Lemma By: ________________________ Mitchell Garber, Esq. 111 John Street, Suite 640 New York, New York 10038 (212) 964-8038 Dated: New York, New York November 22, 2017