Friday, August 20, 2010
Pre-determination hearings not required unless a deprivation of a property or liberty interest is threatened
Taylor v NYS Dept. of Correctional Services, 248 A.D.2d 799
A psychologist advised a correctional facility’s superintendent that State Corrections Officer Mark Taylor “was dangerous and may lose impulse control at any time.” Taylor “became belligerent and abusive” when the psychologist refused to give him a copy of a report that he had prepared for Family Court. Taylor refused repeated requests to leave the psychologist’s office and ultimately police officers were called and escorted him from the office.
The superintendent then prohibited Taylor from carrying a concealed weapon while off-duty.*
Taylor complained that he was denied due process because he was not provided with a “predetermination hearing” before the superintendent prohibited him from carrying a weapon while he was off duty
The rules of the state Correctional Services Department allow it to prohibit an employee from carrying a weapon while off duty if it determines “the employee’s mental or emotional condition is such that his or her possession of a weapon represents a threat to the safety of the employee, the facility or the community.”
According to the Appellate Division’s ruling in the Taylor case, the right to a pre-determination hearing depends on whether or not the individual can demonstrate that administrative decision constituted involved some deprivation of a “property interest” or a “liberty interest.” The Appellate Division said the superintendent had not deprived Taylor of any such “liberty interest.”
The Court next addressed the “property interest” aspect of the case. How does an individual establish a property interest? By showing, said the Court, that he or she has a “legitimate claim of entitlement to it.”
The Appellate Division pointed out that it had previously ruled that the exemption set out in Section 265.20 “is not a vested right.” Accordingly, it did not constitute a property interest for the purposes of invoking claims to any right of due process.
Finding that the superintendent had a rational basis for the action and thus was neither arbitrary nor capricious, the Appellate Division dismissed Taylor’s appeal.
* Section 265.20 of the State Penal Law gives State correction officers a statutory exemption from prosecution for criminal possession of a weapon.
Electronic books [e-books] focusing on New York State and Municipal Public Personnel Law:
A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://nypplarchives.blogspot.com/
The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. 2100+ page e-book. For more information click on http://thedisciplinebook.blogspot.com/
The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://nylayoff.blogspot.com/
General Municipal Law §§207-a and 207-c - Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://section207.blogspot.com/
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