The River Reporter, October 10, 1996

Monticello police must pay own legal bill

MONTICELLO - Three Monticello police officers must pay their own legal fees, according to a recent NYS Supreme Court decision.

Loran Shlevin, as lawyer for the Monticello Police Benevolent Association, had filed suit on behalf of police officers Roger Bisland, Salvatore Accamando, and Gerard Dietz. NYS supreme court justice Vincenet Bradley of Kingston dismissed the case.

The three officers were suspended without pay as a resul tof an investigation into the beating of James Tomlinson that was conducted first by the Village of Monticello and then the Sullivan County district attorney.

The officers sued the village for $17,370, claiming the right to an attorney of their choosing, Henri Shawn of Monticello. They had turned down an offer for free representation by then-village attorney Martin Miller, who advised them in a letter that he did not have a conflict of interest.

The decision read in part: "In this Court's view, indemnification statutes such as those at issue here contemplate coverage for the defense of actions brought by parties other than the municipality, and therefore, do not include misconduct proceedings. To do otherwise would violate public policy since it would, in effect, require taxpayers to subsidize the employee's defense against the municipality's allegations of misconduct against him or her."





STATE OF NEW YORK
SUPREME COURT CHAMBERS
ULSTER COUNTY COURT HOUSE
KINGSTON, NY 12401

September 18, 1996

Michael Davidoff, Esq.
265 Broadway, PO Drawer 1069
Monticello, New York 12701

Loran Shlevin, Esq.
87 Main Street, PO Box 417
Callicoon, New York 12723

Re: Bisland et al. v. Village of Monticello et al. Sullivan County Special Term
RJI# 52-14325-96
Return date: 6/18/96

Dear Counselors:

This letter represents the decision of the Court in the above matter. Defendants have moved pursuant to CPLR 3211(a)(7) and CPLR 3211(a)(1) to dismiss plaintiffs' declaratory judgement action on the grounds that it fails to state a cause of action and that it is barred by documentary evidence. After reviewing the parties' submissions, the Court concludes that the motion must be granted.

Plaintiffs claim that they are entitled, pursuant to section 8-2 of the Village of Monticello Code to reimbursement for attorneys fees each expended in retaining an attorney to represent them in an investigation conducted by the Village of Monticello and, subsequently, the Sullivan County District Attorney. The investigations apparently arose from allegations of misconduct made by a citizen complainant relating to an incident which occurred at the Village police station.

Although the District Attorney decided not to present the complaint to the Grand Jury, and although no misdemeanor charges resulted, the Village Police conducted an internal investigation and/or brought disciplinary proceedings against the plaintiffs which were settled by mutual consent. Part of the fees for which plaintiffs seek reimbursement were, it appears, incurred in defending against the disciplinary charges. The terms of the settlement included suspensions without pay.

The provisions of the Village Code on which plaintiffs rely only apply when Village employees such as plaintiffs must defend against a civil action or proceeding. The investigations and proceedings described above, however, did not constitute civil proceedings or actions. The investigation by the Village and the District Attorney, whose office became involved at the request of the Village had as its purpose determining whether criminal charges against plaintiffs were appropriate. It was, therefore, criminal in nature. Furthermore, in this Court's opinion, an investigation does not constitute an action or proceeding as these terms are used in the Code.

As to the disciplinary proceedings which resulted in suspensions, they do not fall into the category of the civil actions or proceedings. IN this Court's view, indemnification statutes such as those at issue here contemplate coverage for the defense of actions brought by parties other than the municipality, and, therefore, do not include misconduct proceedings. To do otherwise would violate public policy since it would, in effect, require taxpayers to subsidize the employee's defense against the municipality's allegations of misconduct against him or her (1983, Op St. Compt. File #83-191).

Accordingly, the motion is granted. Mr. Davidoff shall submit a single order consistent herewith.

Very truly yours,
VINCENT G. BRADLEY
Justice of the Supreme Court
VGB/mu
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