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http://thedisciplinebook.blogspot.com/2009/03/discipline-book.html

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Monday, November 3, 2008

Misuse of an agency’s computers

Misuse of an agency’s computers
Bedford v Raymond W. Kelly, as Police Commissioner, 2008 NY Slip Op 08272, Decided on October 30, 2008, Appellate Division, First Department

Tinel Bedford, an employee of the New York City Police Department, was served with disciplinary charges alleging that he had utilized Police Department computers for a non-Department use and that he failed to properly supervise members of the service subordinate to him.

Found guilty of the charges, the Commissioner imposed a penalty consisting of (1) a one-year disciplinary probation, (2) a 30-day suspension and (3) Bedford’s forfeiture of 30 vacation days. Bedford appealed the Commissioner’s determination.

The Appellate Division sustained the Commissioner’s finding that Bedford was guilty of the charges, noting that the determination was supported by substantial evidence. As to the penalty imposed, the court said that it did not “shock our sense of fairness,” citing Matter of Kelly v Safir, 96 NY2d 32.

Typically, a disciplinary probation provides for the summary termination of the probationer in the event he or she violates any of the terms or conditions of the probation.

The courts, however, have view termination from a disciplinary probationary period narrowly.

For example, in Taylor v Cass, 505 NYS2d 929, a Suffolk County employee won reinstatement with full retroactive salary and contract benefits after he was dismissed while serving a disciplinary probation. Although the terms of his probation subjected Taylor to summary termination if his work was “adversely affected” by his being “intoxication on the job,” the reason given for his dismissal during the probationary period was that he failed to give “a fair day’s work” and was “sleeping during scheduled working hours.” The Appellate Division said the dismissal was improper because Taylor was not terminated for the sole reason specified in the earlier disciplinary settlement -- intoxication on the job.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_08272.htm
By Public Employment Law Press on Monday, November 03, 2008
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Source: Initially published on the Internet in New York Public Personnel Law. Reproduced with permission. Copyright© 2006, 2007, 2008, 2009 by the Public Employment Law Press.