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June 3, 2010

Quid pro quo in the nature of the withdrawal of disciplinary charges not required to validate disciplinary settlement agreement

Quid pro quo in the nature of the withdrawal of disciplinary charges not required to validate disciplinary settlement agreement
Matter of Newman v Fire Dept. of the City of New York, 47 A.D.3d 444

Joseph P. Newman settled pending disciplinary charges filed against him by entering into a “settlement agreement” with the New York City Fire Department. The agreement that he signed extended his one-year probationary period as a firefighter to 18 months.

The agreement also stipulated that Newman waived his right to a pre-termination disciplinary hearing in the event he tested positive for “the presence of alcohol in [his] blood or urine which could lead to termination.”

Rejecting Newman’s argument to the contrary, the Appellate Division said that it was not required that the settlement agreement constitute a quid pro quo for the dismissal of pending disciplinary charges, so long as Newman’s waiver of rights to a pre-termination hearing was knowingly and freely made.

Contrasting the “ineffective agreement” considered in Vega v Civil Service Commission, 385 F Supp 1376, an agreement that the Appellate Division characterized as “merely spelled out statutory rights not authorizing the appointee’s termination,” the court ruled that Newman had signed a settlement agreement that gave the Department new rights with respect to its ability to terminate him and thus it was enforceable.

Similarly, in Wilson v Jackson, 161 A.D.2d 652, a Section 75 disciplinary action was discontinued when Wilson agreed to a stipulation of settlement which, in part, provided that she waived her rights to any hearing concerning allegations that she violated any of the provisions of the stipulation.

Wilson was subsequently terminated "for having violated a provision of the stipulation,” and she appealed.

The Appellate Division upheld her dismissal despite the fact that she was not given a pre-termination Section 75 hearing.

The court said that Wilson was not entitled to a hearing as she had waived all such rights when she agreed to the terms of the settlement. The opinion again notes that "[p]rovided the waiver is freely, knowingly, and openly arrived at, without taint of coercion or duress, a party may, by stipulation, waive her right to the procedural due process to which she is otherwise entitled under New York State Civil Service Law."

Accordingly, the settlement must stipulate that the disciplinary charges are "withdrawn" there is no implied withdrawal of such charges upon execution of the agreement.

Citing Barry v City of New York, 21 AD3s 551, the court ruled that Newman was still a probationary employee at the time of his failed a test for “alcohol in his blood or urine,” and therefore he could be terminated by the Fire Department without a pre-termination hearing because he tested positive for such substance.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2008/2008_00172.htm

NEW YORK PUBLIC PERSONNEL LAW ELECTRONIC HANDBOOKS

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State. For more information click on http://booklocker.com/books/5215.html

A Reasonable Disciplinary Penalty Under the Circumstances - Determining an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

Disability Benefits for fire, police and other public sector personnel - Addresses retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information click on http://booklocker.com/books/3916.html

The Layoff, Preferred List and Reinstatement Manual -Focusing on relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

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Text prepared by Harvey Randall except as otherwise noted. Randall, former Principal Attorney, New York State Department of Civil Service, also served as Director of Personnel for the State University System; as Director of Research, Governor’s Office of Employee Relations; and as Staff Judge Advocate General, New York Guard. He has an MPA from the Maxwell School, Syracuse University and a J.D. from Albany Law School.