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August 18, 2010

Disciplinary suspension without pay

Disciplinary suspension without pay
Empire Hook & Ladder Co. #1 v Nyack FD, [Not selected for publication in the Official Reports]

It is not at all unusual for an employee to challenge his or her disciplinary suspension by filing an Article 78 petition with a court.

In contrast, an Article 78 petition challenging the disciplinary suspension of a volunteer organization is not at all common. Yet a disciplinary suspension was the basis for a lawsuit filed by the Empire Hook and Ladder Company #1, a volunteer fire department, against the Nyack Fire Department.

The genesis of the action was the Village of Upper Nyack’s approval of a request submitted by a member of Empire to purchase a vehicle to be used to transport Empire members to fires as well as certain non-fire details.

The Nyack Fire Department, however, said that the member who submitted the request to the village had violated Nyack’s rules because the member had appeared before the village board without first obtaining permission to do so from Nyack’s chief. The chief declared that unless Empire apologized within 10 days “the matter would be reopened and appropriate action would be taken.”

No apology was received and Nyack told Empire it was suspended from service for 30 days for violating the department’s rules. The suspension, however, “did not include fires, emergencies or funeral detail.”

Empire sued, contending that its suspension was arbitrary and capricious. It argued that (1) it was never presented with written charges specifying the Nyack rule or regulation which it allegedly violated and (2) the penalty imposed -- suspension for 30 days -- violated General Municipal Law Section 209-i because it had not been given a hearing on the charges.*

According to the ruling, Empire was a member of the Nyack Fire Department. One of Nyack’s rules prohibited “an individual or company ... from communicating or asking to go before any village body for any type of equipment or any other reason without obtaining permission from the Chief of the Nyack Fire Department.”

Based on this prohibition, Acting Justice Weiner dismissed Empire’s petition, ruling that:

1. GML Section 209-i did not apply in this situation and therefore no “pre-suspension” hearing was required; and

2. The discipline imposed on Empire was not so disproportionate to the offense committed as to shock one’s sense of fairness.

* GML 209-i authorizes fire departments to make regulations governing removal of volunteer officers and volunteer members of such departments and member companies for incompetence or misconduct. The Section also requires “notice and hearing” before a member may be removed from his or her position. In Armstrong v. Centerville Fire Company, 83 NY2d 937, however, the Court of Appeals decided that in adopting Section 209-i the legislature did not intend to interfere with discipline in connection with the conduct of the internal affairs of a fire department.

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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