Monday, September 26, 2011

Dismissal in consideration of the misconduct proven not a viewed as "shocking"


Dismissal in consideration of the misconduct proven not a viewed as "shocking"
Ortiz v Safir, App. Div., 1st Dept., February 5, 2002

The Appellate Division, First Department sustained New York City's for Police Commissioner Howard Safir's terminating police officer James Ortiz after finding Ortiz guilty of a number of charges of misconduct in the performance of his duties.

Applying the so-called "Pell Doctrine," [Pell v Board of Education, 34 NY2d 222], the court said that under the circumstances imposing the penalty of dismissal did not shock its sense of fairness.

Ortiz was found guilty of disciplinary charges that alleged that in the course of effecting an arrest of an individual for disorderly conduct, he "manhandled an unthreatening, nonresistant arrestee, shoved him down a subway stairway, flung his passport into his face, charged him with resisting arrest without probable cause and made false statements about the incident to the Civilian Complaint Review Board."

Disciplinary penalties imposed on public employees in New York State must meet the "Pell Doctrine." The standard applied: any permissible penalty may be imposed unless the court finds that under the circumstances such a penalty is "shocking to one's sense of fairness."

Typically an individual will appeal the disciplinary findings as to guilt as well as the penalty imposed. Once a court determines that the record supports a finding that the disciplinary determination was not arbitrary or illogical and that it is supported by substantial evidence, it will turn to the issue of whether the disciplinary penalty imposed should be upheld.

This is the point at which the court will apply the Pell Doctrine. The test used by courts: is the sanction imposed so disproportionate to the offense or offenses of which the individual has been found guilty as to be shocking to one's sense of fairness?

What constitutes a penalty judged to be so shocking? An example of the type of punishment that might be judged violating Pell would be to fire someone for a minor offense such as a single instance of smoking on the job.

On the other hand, everything depends on the circumstances. The unique conditions and requirements of a given workplace must be considered in determining the fairness of a penalty.

If, for example, a hospital employee was discovered smoking while working with a patient who was receiving oxygen therapy in violation of hospital rules and procedures, the danger of smoking in such a unique work site to the patient and others could justify the employer imposing a harsher penalty -- even termination -- than might be imposed for a smoking infraction by a hospital employee discovered to be smoking in another, but safer, "non-smoking area."

Another factor that goes hand-in-hand with Pell is the concept that judges are to give "deference" to the appointing authority's determination regarding the penalty to be imposed. Ahsaf v Nyquist, 37 NY2d 182, is a decision illustrating this point.

In short, a court will overturn the disciplinary penalty imposed by an appointing authority only in the event it perceives it to be essentially unfair when measured against the offense committed by the employee.

Further, as a general rule, courts are reluctant to substitute their judgment as to the appropriate penalty to be imposed for that of the employer, especially in disciplinary actions involving law enforcement personnel as law enforcement personnel are viewed as holding "quasi-military" status. As the court commented in Laspisa v Mahoney, 603 NYS2d 536, a law enforcement agency is a quasi-military organization which demanded strict discipline and "great deference is to be accorded a determination regarding the internal discipline of its members."



Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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