In the Matter of Gary Salino,
Respondent,
v.
Robert J. Cimino, &c., et al.,
Appellants.
2003 NY Int. 151
Suffolk County Code § 35-3 (A) obligates the County to
provide a defense to its employees in any civil action "arising
out of any alleged act or omission which occurred or is alleged
in the complaint to have occurred while the employee was acting,
or in good faith purporting to act, within the scope of his
public employment or duties or which is brought to enforce any
provisions of Section 1981 through 1988 of Title 42 of the United
States Code." The County Code further provides that "[t]he
determination of an issue of whether or not an employee was
In this article 78 proceeding brought by a Suffolk County police officer, the issue is whether the County Attorney's denial of petitioner's request for a legal defense under Suffolk County Code § 35-3 (A) -- on the ground that he was not acting within the scope of employment in connection with the incidents that formed the basis of the complaint -- was arbitrary or capricious. We conclude, as did the trial court, that the County Attorney's decision was not arbitrary or capricious.
The action for which petitioner seeks a taxpayer-paid
defense grew out of a long feud between petitioner and his
neighbor, Corey Kay, over Kay's use of his property. Brought in
the United States District Court for the Eastern District of New
York under 42 USC § 1983 1985 and 1986, Kay's complaint,[1]
served in March 2000, was lodged against the County of Suffolk,
and against petitioner and a fellow Suffolk County police
officer, personally and in their official capacity. According to
the complaint, in July 1996 Kay purchased property next door to
petitioner in Mt. Sinai, New York, and leased two cottages on the
After the realtor's acquittal, and again at petitioner's behest -- the complaint continues -- a warrant was issued for Kay's arrest on similar charges; those charges also were dismissed. Kay alleged that the arrests were based on false statements provided by petitioner, and that as a police officer petitioner used his position and contacts to harass, annoy and alarm Kay and to "cause a reign of terror upon" him, including proceedings instituted before Town boards and Supreme Court over use of his property. Kay asserted that petitioner's actions constituted a deprivation of constitutional rights, malicious prosecution and false arrest, and other wrongdoing.
Kay's lawsuit actually followed by months a similar
action filed in the same court by the realtor ( see Joan Van
Middelem v County of Suffolk, Civil Action No. 99-2707). Shortly
after the Van Middelem action was instituted, petitioner
"[T]he facts as presently known to the committee show that [petitioner] did not act in his capacity as a police officer in pursuing this matter. Rather, he acted as a concerned homeowner, and utilized resources, including FOIL, available to any private citizen, in bringing this matter to the attention of responsible authorities. Stated differently, [petitioner] did not act in the scope of his duties or authority as a police officer. He sought to protect his private interests as a homeowner in engaging in the course of conduct."
The Committee noted its reliance on a Police Department
Internal Affairs report which explained that, through his own
FOIL requests, petitioner learned that there had been no zoning
change for the cottages from summer to year-round occupancy, and
that the Town's Certificate of Zoning Compliance had been based
on affidavits (allegedly false) secured by the broker from two
elderly neighbors. Petitioner's persistence included commencing
administrative proceedings and litigation.[2]
According to the
Petitioner did not pursue the County Attorney's denial of his request for a legal defense in the Van Middelem action.
After Kay commenced his federal court action,
petitioner asked that the County provide for his defense in that
case because the Kay complaint alleges that he was acting as a
police officer, and because Department directives required all
"[n]otwithstanding the boilerplate allegations in the complaint, the operative facts, as distinguished from the legal conclusions asserted in the complaint do not establish that [petitioner] was acting within the scope of his employment. For example, the complaint recites [petitioner's] private litigation, which was clearly not brought by him in his official capacity."
Petitioner then instituted this article 78 proceeding
arguing that a plain reading of Suffolk County Code § 35-3 (A)
obligates the County to provide him with a defense. Supreme
Court agreed with the County's determination that the acts
attributed to petitioner were not committed while he was acting
in furtherance of his public employment. The Appellate Division,
however, reversed and found that the "clear and unambiguous
language" contained in the legislation obligated the County to
afford petitioner a defense because "[s]ome of the acts asserted
Discussion
Suffolk County Code § 35-3 (A) was enacted in 1981 to provide for the defense of its employees who may be charged in civil actions with violating the law "in the performance of their duties" (Suffolk County Code § 35-1). The Legislature viewed the provision as a way to encourage qualified applicants to accept employment with the County, without burdening them with legal expenses incurred in defense of allegations of misconduct "in office" ( id.).
As the Appellate Division noted, the Code provides for
a defense, in clear and unambiguous language, for acts alleged in
the complaint to have occurred while the employee was acting
within the scope of his public employment, or actions brought to
enforce any provisions of 42 USC § 1981-1988. But that is not
the end of the matter, or the section. The Code goes on to
provide, in equally clear and unambiguous language, that the
While the two provisions of Section 35-3 (A) are
seemingly at odds with each other, in fact they are fully
reconcilable. Clearly, the Suffolk County Legislature by this
provision did not commit public funds to an employee's defense
based solely on the words chosen by a plaintiff in framing a
complaint. Allowing a plaintiff to dictate whether Suffolk
County must provide an employee with a defense would indeed be an
unintended result of section 35-3 (A) ( see Bestafka v County of
Suffolk, 121 AD2d 670, 671 [2d Dept 1986], lv denied , 68 NY2d 610). The reconciling principle between the provision for a
public defense protecting employees, and the provision for review
by the County Attorney, is that the action of the County Attorney
must not be arbitrary or capricious, or it will be set aside ( see
Williams v City of New York, , 64 NY2d 800, 802 [1985]).[5]
Here, the factual record supports the County Attorney's determination that petitioner's alleged acts of wrongdoing against Kay were the consequence of his private interest as a property owner, not his public responsibility as a police officer.[6] That he was acting to protect and advance his private self-interest is demonstrated, for example, by his individual FOIL requests, by his statements submitted as a long-time community member, not as a police officer, in support of criminal charges against Kay, and by the proceedings in his name challenging Kay's use of the property. Plainly, the County Attorney's determination denying him a defense was neither arbitrary nor capricious.
Finally, we do not reach petitioner's alternative argument that Suffolk County Code § 35-3 (A) is preempted by General Municipal Law § 50-m. Preemption was not raised in the petition, or before Supreme Court. Petitioner raised preemption for the first time in his motion for "reargument and/or renewal," which Supreme Court denied. Neither court below having addressed preemption, we will not be the first to do so ( see Bingham v New York City Tr. Auth., , 99 NY2d 355, 359-360 [2003]).
Accordingly, the order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court dismissing the petition, reinstated.
Footnotes
1 Winfield Properties, Ltd., is also a named plaintiff. Kay is its sole shareholder.
2 ( see e.g. Matter of Gary Salino v Town of Brookhaven et al., Sup Ct, Suffolk County, June 10, 1999, Seidell, J., Index No. 24221/98 [remitting the matter to the Town's Zoning Board of Appeals for further hearing and findings of fact to determine the nonconforming status of the property]).
3 Though these complaints were for the most part ultimately found unsubstantiated, petitioner was relocated because of ongoing disputes with civilians in his patrol area. The Internal Affairs documents also show that petitioner and the arresting officer were exonerated by the Department for the arrests of Kay and Van Middelem, which were found to have been supported by probable cause.
4 Similar "first instance" clauses are found elsewhere ( see e.g. General Municipal Law § 50-k [2] [as determined by Corporation Counsel]; Code of the City of Buffalo § 35-28 [same]; Code of the City of Albany § 38-7 [A] [same]).
5 So long as the County Attorney's determination has a factual basis, it will be sustained. As counsel recognized at oral argument, however, should the factfinder in the federal action ultimately determine that petitioner was indeed acting within the scope of his public employment, as Kay alleges, an issue regarding petitioner's right to indemnification might arise ( see Jeffreys v Griffin, NY2d , 2003 Slip Op 17895 [Oct. 30, 2003] [collateral estoppel is a flexible doctrine]).
6 According to petitioner's Memorandum of Law submitted in Supreme Court, his fellow officer was advised that Suffolk County would provide for his defense in the federal litigation.