In the Matter of Robert W. Kowal, Appellant,v.Thomas P. DiNapoli, et al., Respondents.BriefN.Y.February 7, 2018tate of Jleto §ÿork appellate JBtPtgton -Wyith IBcpartment IN THE MATTER OF THE APPLICATION OF ROBERT W.KOWAL, Petitioner, FOR A JUDGMENT UNDER ARTICLE 78 OF THE CIVIL PRACTICE LAW AND RULES -AGAINST- THE NEW YORK STATE COMPTROLLER AND THE NEW YORK STATE AND LOCAL EMPLOYEES’ RETIREMENT SYSTEM, Respondents. BRIEF FOR RESPONDENTS ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondents The Capitol Albany, New York 12224-0341 (518) 776-2016 VICTOR PALADINO KATE H. NEPVEU Assistant Solicitors General of Counsel Dated: May 11, 2016 “Reproduced on Recycled Paper” TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ii PRELIMINARY STATEMENT 1 QUESTION PRESENTED 1 STATEMENT OF THE CASE 2 A. Background 2 B. Administrative Proceedings 2 C. Administrative Decision 5 ARGUMENT SUBSTANTIAL EVIDENCE SUPPORTS THE DETERMINATION THAT PETITIONER’S INJURIES AROSE FROM CONTROLLING A DISRUPTIVE INDIVIDUAL AND NOT AN ASSAULT 6 CONCLUSION 12 i TABLE OF AUTHORITIES CASES PAGE Ammann, Matter of v. N.Y. State Comptroller, 13 A.D.3d 858 (3d Dep’t 2004), Iv. denied, 5 N.Y.3d 702 (2005) 7, 8,9 Beckley, Matter of v. Nitido, 123 A.D.3d 1330 (3d Dep’t 2014) 8 Berbenich, Matter of u. Regan, 81 A.D.2d 732 (3d Dep’t), affd, 54 N.Y.2d 792 (1981) 8 Boncimino, Matter of v. N.Y. State Comptroller, 125 A.D.3d 1089 (3d Dep’t 2015) 7, 8, 9, 10 Emerson, Matter of v. DiNapoli, 115 A.D.3d 1145 (3d Dep’t 2014) 8,9 Kutzma, Matter of, H.C. No. 08-0149 9 Roberts, Matter of v. DiNapoli, 117 A.D.3d 1166 (3d Dep’t 2014) 7,9 Thorp, Matter of, H.C. No. 10-0106 9 Totesau-Johnson, Matter of, H.C. No. 07-0353 9 STATE STATUTES C.P.L.R. article 78 1 Retirement and Social Security Law § 605 § 605-a 11 1,2 ii PRELIMINARY STATEMENT Petitioner Robert W. Kowal was a Court Officer Sergeant who shot an individual who fired a shotgun into a courthouse. He was later diagnosed with post-traumatic stress disorder and applied for accidental disability retirement benefits. Respondent New York State and Local Retirement System denied the application on the ground that petitioner was acting within his regular employment duties during the incident, and therefore was not injured in an accident within the meaning of section 605-a of the Retirement and Social Security Law. Petitioner filed this article 78 proceeding challenging the determination, which was transferred to this Court by order of Supreme Court, Albany County (McDonough, J.), entered August 19, 2015. The determination should be confirmed, because substantial evidence supports the determination that petitioner was injured while providing security to the courthouse and responding to a disruptive individual, which was part of his regular employment duties as a Court Officer Sergeant. QUESTION PRESENTED Was petitioner not injured in an accident within the meaning of section 605-a of the Retirement and Social Security Law, where petitioner’s undisputed job duties as a Court Officer Sergeant included providing security, restraining disruptive individuals, and handling emergency responses to situations, and where petitioner shot an individual who fired a shotgun into the courthouse? STATEMENT OF THE CASE A. Background In 2012, petitioner was a Court Officer Sergeant and had been a state court officer for fifteen years. (Record on Appeal at 49, 121.) After an incident that year, petitioner was diagnosed with post-traumatic stress disorder and applied for accidental disability retirement. (R. 121.) His application was denied on the threshold ground that the incident was not an accident within the meaning of section 605-a of the Retirement and Social Security Law.1 (R. 208.) Petitioner requested a hearing and redetermination of his application. (R. 25.) B. Administrative Proceedings Petitioner testified that on February 8, 2012, he was on duty at the Middletown City Court. (R. 50.) At about nine in the morning, petitioner was in the courthouse lobby with two other court officers. (R. 50-51.) An individual, later identified as Timothy Mulqueen (R. 141), shot a hole in the Respondents therefore take no position as to whether petitioner is disabled or whether any disability was caused by the 2012 incident. i 2 courthouse door with a shotgun and fired an additional two times into the courthouse (R. 51-52). Petitioner returned fire using his work-issue handgun (R. 84-85), from about fifteen feet away (R. 53). Mulqueen was struck by the officers’ bullets and collapsed. (R. 53, 69.) When petitioner approached him, he found that Mulqueen had approximately forty rounds of additional ammunition in his pockets. (R. 69.) Mulqueen later died. (R. 53.) Petitioner agreed that the official job description for his position described his basic duties, and that he performed other duties that were not specifically listed in the description. (R. 80, 82.) The job description included the following duties: • “Provides security in the courtroom and throughout court facilities and offices.” (R. 217.) • “Assumes a post or patrols the courthouse and maintains order by removing or calming disruptive individuals.” (R. 217.) • “Physically restrains, removes or arrests persons causing or attempting to cause disturbances.” (R. 217.) • “Provides assistance and assumes other appropriate responsibilities in emergency situations.” (R. 218.) • “Administers first-aid and assistance to individuals during emergencies, accidents or illness.” (R. 218.) As the job description noted, “The above statements are intended to describe the general nature and level of work being performed by persons assigned to 3 this title. They do not include all job duties performed by employees in this title, and every position does not necessarily require these duties.” (R. 218.) Further, the official job description also required specific “knowledge, skills, and abilities,” which included: • “Knowledge of search, arrest, and ‘use of force’ guidelines and procedures.” (R. 219.) • “Knowledge of proper operation/use of radio communications, security equipment, and security screening operations (e.g., handcuffs, batons, magnetometer, and hand scanners).” (R. 219.) • “Knowledge of rules and procedures for the possession, control, use, registration, inspection, and safeguarding of firearms.” (R. 219.) • “Knowledge of procedures for handling emergency responses in situations such as fires, aided cases (including, but not limited to, a sick or injured person, a mentally ill or emotionally disturbed person, a lost person, a neglected, abandoned, destitute or abused child, or a maternity case), bomb threats, hostage situations, crowd control, and hazardous materials.” (R. 219.) • “Knowledge of facility lock-down and building evacuation procedures.” (R. 219.) • “Ability to recognize and evaluate situations, events, and conditions related to observable ongoing activities.” (R. 219.) ® “Ability to handle conflict situations.” (R. 219.) 4 Petitioner testified that he had never received any training in dealing with a terrorist attack (R. 75), but conceded that he was responsible for the safety of all persons in the courthouse, was expected to provide security in the courthouse, and was required to respond promptly to all emergency situations (R. 89-90). Further, petitioner was aware that shootings had occurred at courthouses around the country. (R. 91-92.) As stated in the Unified Court System’s Court Officers Rules and Procedures Manual, which petitioner had read “[m]any times” (R. 77), “[i]n the complex environment in which court officers work, they are confronted daily with situations where control must be exercised in order to protect themselves and the public safety” (R. 242). Accordingly, as petitioner testified, he was trained in the use of physical force, including deadly physical force, and in determining when the use of force was appropriate (R. 88, 101-102). Petitioner received yearly training in handguns (R. 76, 86), which court officers carried “to protect ourselves and the public” (R. 93), and which petitioner was required to carry fully loaded while on duty (R. 61, 225, 229). C. Administrative Decision The hearing officer determined that the February 2012 incident was not an accident within the meaning of the Retirement and Social Security Law, because petitioner was injured “from a foreseeable event occurring 5 during the performance of an ordinary employment duty or from a risk inherent in such employment.” (R. 174.) Specifically, the hearing officer found that when petitioner and his fellow court officers “subdued and killed the gunman, secur[ing] the safety of the public, themselves, and the court facility,” petitioner “was implementing his ordinary employment duties as a Court Officer Sergeant and should be commended for his actions and conduct, under the circumstances, in executing his duties as instructed and trained.” (R. 174.) The Deputy Comptroller of the New York State and Local Retirement System accepted the hearing officer’s findings and conclusions and denied petitioner’s application for accidental disability retirement benefits. (R. 177.) This proceeding followed. ARGUMENT SUBSTANTIAL EVIDENCE SUPPORTS THE DETERMINATION THAT PETITIONER’S INJURIES AROSE FROM CONTROLLING A DISRUPTIVE INDIVIDUAL AND NOT AN ASSAULT It is well established that injuries do not qualify a court officer for accidental disability retirement benefits when they are sustained during the officer’s regular employment duties of providing security and controlling disruptive individuals. Substantial evidence supports the determination that petitioner was acting within his regular employment duty during the incident 6 and therefore was not injured in an accident. Contrary to petitioner’s claims, court officers’ duties are the same whether the disruptive individual attempts a novel form of disruption or is characterized as a terrorist. The determination below should be confirmed. “For purposes of accidental disability retirement benefits, the underlying accident must be a sudden, fortuitous, out of the ordinary and unexpected event that does not result from an activity undertaken in the performance of regular or routine employment duties.” Matter of Boncimino v. N.Y. State Comptroller, 125 A.D.3d 1089, 1090 (3d Dep’t 2015) (internal quotation omitted). As this Court has explained, “the Comptroller draws a distinction between injuries received by a court officer as the result of an assault and injuries received as the result of an attempt to restrain a disruptive individual while performing the duties of a court officer.” Matter of Ammann v. N.Y. State Comptroller, 13 A.D.3d 858, 858 (3d Dep’t 2004), Iv. denied, 5 N.Y.3d 702 (2005). An assault “constitutes a compensable accident,” while an injury received performing the duties of a court officer “constitutes a risk inherent in the course of the court officer’s employment.” Id. As a result, this Court has repeatedly and consistently held that court officers’ regular job duties include controlling, restraining, or removing disruptive individuals, and thus when court officers are injured performing 7 those duties, their injuries are not accidental in nature. E.g., Ammann, 13 A.D.3d at 859; Boncimino, 125 A.D.3d at 1090; Matter of Roberts v. DiNapoli, 117 A.D.3d 1166, 1166 (3d Dep’t 2014); Matter of Emerson v. DiNapoli, 115 A.D.3d 1145, 1145 (3d Dep’t 2014). In this case, it is undisputed that petitioner’s regular job duties included controlling, restraining, or removing disruptive individuals. (R. 80, 82, 217-219, 242.) Petitioner was trained in the use of physical force, including deadly physical force, and required to carry a loaded handgun while on duty. (R. 61, 88, 101-102, 225, 229.) Mulqueen, having fired a shotgun into the courthouse (R. 51-52), was unquestionably a disruptive individual who posed a threat to the safety of those in the courthouse. As in the cases cited above, this constitutes substantial evidence to support the Comptroller’s determination that when petitioner shot Mulqueen, he was— commendably— performing his regular job duties. (R. 174.) See also Matter of Berbenich v. Regan, 81 A.D.2d 732, 732 (3d Dep’t), affd, 54 N.Y.2d 792 (1981) (holding that where police officer accidentally killed civilian and became emotionally disabled, substantial evidence supported determination that injuries arose from officer’s “expected and foreseeable duties” and not an accident); Matter of Beckley v. Nitido, 123 A.D.3d 1330, 1330-31 (3d Dep’t 2014) (holding that where police officer fired gun as trained, post-traumatic stress disorder did not arise from accident). 8 To the extent there may be “evidence in the record from which one could conclude that petitioner was injured during the course of an assault,” that does not require the annulment of respondent’s determination. Ammann, 13 A.D.3d at 859. Where a finding is supported by substantial evidence, “[t]he mere presence of such proof . . . simply does not negate the Comptroller’s finding.” Id.; accord Boncimino, 125 A.D.3d at 1090; Roberts, 117 A.D.3d at 1166-67; Emerson, 115 A.D.3d at 1145-46. Therefore, the determination should be confirmed. Petitioner makes no persuasive arguments to the contrary. First, petitioner claims (Br. at 14-15) that the Comptroller has departed from his own distinction between accident and assault. Some of the determinations cited by petitioner are not on point. See Matter of Thorpe, H.C. No. 10-0106 (applicant was Mental Health Therapy Aide rather than law enforcement officer) (annexed to petitioner’s brief at Add. 7); Matter of Kutzma, H.C. No. 08-0149 (issue was cause of condition, and incident was not described) (R. , 187); Matter of Totesau-Johnson, H.C. No. 07-0353 (issue was whether applicant was permanently incapacitated, and incidents were not described) (R. 193-194). With regard to the remainder of the determinations, petitioner simply disagrees with the Comptroller over where the fine between accident and assault is drawn in different cases. Since a determination need not be 9 annulled merely because evidence exists from which one could draw a different conclusion, petitioner’s claim is without merit. Petitioner also places great weight on his characterization of Mulqueen’s actions as something that “has never happened before” and as a terrorist attack (Br. at 17 (emphasis in original), 20, 25). But petitioner confuses the unexpected nature of the event with the entirely expected nature of petitioner’s response to it. The question is not whether someone had ever before disrupted a courthouse in New York in exactly the same way as Mulqueen. The question is whether petitioner’s activity in response was “undertaken in the performance of regular or routine employment duties.” Boncimino, 125 A.D.3d at 1090. And while petitioner claims that his duties did not include responding to a terrorist attack (Br. at 21, 25), petitioner was required to provide security in the courthouse (R. 217); was required to know emergency procedures for handling situations “such as . . . bomb threats, hostage situations . . . and hazardous materials,” and to know “facility lock- down and building evacuation procedures” (R. 219); and was expected to be “confronted daily with situations where control must be exercised in order to protect [court officers] and the public safety” (R. 242). Whatever label is put on Mulqueen’s actions, then, it was rational for the Comptroller to conclude that when Mulqueen fired a shotgun into the courthouse, petitioner acted within his duties when he responded. 10 Finally, petitioner argues that not awarding accidental disability retirement benefits here would act as a financial disincentive to law enforcement officers responding to potentially dangerous incidents, which would be an “absurd situation” (Br. at 24). Petitioner is correct only to the extent that he calls this hypothesis “absurd.” It is indeed absurd to argue that dedicated law enforcement officers would weigh, in an emergency situation, whether responding might entitle them to accidental disability retirement benefits as opposed to other disability retirement benefits. See Retirement and Social Security Law § 605. Indeed, as petitioner himself testified, he did not see the actions of civilians around him: “my focus was on the shooter.” (R. 54.) The determination should therefore be confirmed. 11 CONCLUSION The determination should be confirmed and the petition dismissed. Dated: Albany, New York May 11, 2016 Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondents By: -----KATE H. NEWEUAssistant Solicitor General Office of the Attorney General The Capitol Albany, New York 12224 (518) 776-2016 VICTOR PALADINO KATE H. NEPVEU Assistant Solicitor General of Counsel 12