Employee may be subject to discipline for "off the job" misconduct

Employee may be subject to discipline for "off the job" misconduct
Rivera v Farrell, NYS Supreme Court, Justice Stallman, [Not selected for publication in the Official Reports]

From time to time an employee is served with disciplinary charges alleging that his or her off-duty conduct violated a rule or regulation of the employer. The Rivera case involves such a situation.

Rivera, a New York City Department of Sanitation [DOS] supervisor, was “moonlighting” as an income tax adviser. According to the decision, Rivera “promoted a tax-evasion scheme, informed other DOS workers about how to evade taxes, and filled out their payroll forms so that taxes would not be withheld, in return for a fee.”

Served with disciplinary charges, Rivera was terminated after being found guilty of violations of the DOS Code of Conduct by his filing a W-4 tax withholding allowance certificate falsely claiming exemptions to which he was not entitled, falsely claiming “tax-exempt status” and failing to a file a tax return for the tax year 1994.

The decision indicates that Rivera had earlier pled guilty to failing to file a tax return for the tax year 1994, a misdemeanor.

DOS alleged that Rivera violated Code of Conduct 3.2, by engaging in conduct prejudicial to good order and which tends to discredit the City or Department, and Code of Conduct 4.4, filing false records or statements.

Rivera appealed, contending that dismissal “was disproportionate compared to sanctions imposed in similar cases.” He claimed that (1) others similarly situated, with worse disciplinary records, received suspensions, not termination and (2) three sanitation workers who failed to pay taxes and filed false W-4 forms received 30-day suspensions.

Judge Stallman, after distinguishing the misdeeds of the other DOS workers cited by Rivera with respect to the disciplinary penalties imposed, upheld Rivera's termination. The court said that Rivera had failed to meet his burden of proving that DOS acted arbitrarily, capriciously or contrary to law. Under the circumstances, said the court, the penalty of termination “does not shock the judicial conscience; it was thus not an abuse of discretion.”

As an alternative argument for overturning his termination, Rivera submitted a Certificate of Relief from Civil Disabilities he had obtained pursuant to Section 701 of the Corrections Law. Judge Stallman, after commenting that Rivera failed to demonstrate the relevance of the Certificate insofar as this case was concerned, indicated that even if it were relevant, such a certificate does not exempt a civil servant from administrative discipline.

As to a court's authority to overturn or modify an administrative disciplinary decision or a disciplinary penalty imposed on a worker, the Court of Appeals, in its March 22, 2001 decision in Kelly v Safir, 96 N.Y.2d 32, [decided with Elliott v City of New York], said that:

1.The courts may not modify such a determination if substantial evidence supports it; and

2.A court must uphold an administrative penalty unless it finds that it is so disproportionate to the offense as to be shocking to one's sense of fairness -- the Pell standard [Pell v Board of Education, 34 NY2d 222].

Kelly was terminated after being found guilty of unauthorized “off-duty employment” and falsifying records. Meagher was penalized ten vacation days after being found guilty of using excessive force in the course of making an arrest.

The Appellate Division ruled that the penalties imposes were “disproportionate” based on the officers' service records, notwithstanding the fact that substantial evidence supported the findings of fact.