September 30, 2010

Determining if there is a basis for disciplinary charges

Determining if there is a basis for disciplinary charges
Waters v Fire Commissioners, Supreme Court, [Not selected for publication in the Official Reports]

The Waters case concerned a rather rare issue: whether or not the activities underlying disciplinary action provide any basis for bring disciplinary action against an individual.

As State Supreme Court Justice Lockman saw it, “[t]he issue to be resolved is not whether Captain Michael Waters, a decorated volunteer firefighter, performed the underlying acts alleged, but whether those acts constitute a violation of the by-law of the Massapequa Fire District with which he has been charged.”

On January 18, 1999, Waters telephoned other fire captains concerning a new driving policy that was of concern to the membership of the fire company. Fire Department Chief Michael Gange was very interested in this issue. However, instead of telling Waters that he wanted to be present at any discussion of the driving policy, Gange suspended him for making the calls after the two had “exchanged words.”*

Subsequently Chief Gange advised the Fire Commissioners that Waters “has been” relieved of duty, as he “admitted ... that he attempted to call a meeting of the officers ... without checking with or scheduling it through the Chiefs office.”

Ultimately Waters was served with disciplinary charges alleging that he violated department by-law Section 3.1(a), which, in relevant part, provide that “[t]he Chief shall be chairman of the meetings of the Department....” Found guilty of the charges, Waters was suspended for sixty days.

The court found this determination troubling. In addition to noting a number of significant procedural errors that constituted a denial of due process, Justice Lockman said that there was no evidence of any “meeting of the department”. Commenting that “there was no evidence of any meeting at all, departmental or otherwise, and no allegation that a meeting was ever held,” the court noted that the disciplinary decision itself merely states that “Captain Michael Waters’ acts constituted an attempt to schedule a meeting.”

As the evidence shows that the only act Waters took, and the only act which is supported in the record, was to place telephone calls to the district’s several firehouses to request that the officers present come over and discuss driver policy, Justice Lockman concluded that “there is no evidence, substantial or otherwise, to support the charge that Waters violated the by-law which states that the Chief shall chair department meetings.” The court annulled the disciplinary determination.

In such situations, courts would usually remand the matter back to the agency for a new hearing. Here, however, Justice Lockman said that there were multiple procedural irregularities which, when taken together, present a due process violation, as well as a “record utterly lacking in evidence of a violation of the by-laws.” Accordingly, the court elected to rescind the disciplinary action rather that return it for further proceedings.

* Chief Gange testified “I contacted Captain Waters on Tuesday, January 19. I asked him if he was calling an officers meeting. He said yes, he was. I said ‘Without my knowledge?’ He goes, ‘That’s correct’. I asked him if he was looking for a suspension of time. He said, ‘Do whatever you have to do’ and I said ‘You’re relieved of duty.”

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If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
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