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Monday, November 07, 2011

Bringing discredit on the employer

Wilburn v McMahon, 296 AD2d 805

From time to time disciplinary charges alleging misconduct because the employee's actions discredited the employer in the eyes of the public are filed against an employee. The Wilburn case is an example of such a case.

Douglas A. Wilburn, a New York State Trooper, was charged with, among other things, "engaging in conduct that tended to discredit [the] Division of State Police." Other charges alleged that Wilburn had left his assigned post without the approval of his superiors and that he used his position as a member of the Division of State Police to obtain information for a personal reason.

Wilburn admitted that he had obtained the e-mail addresses of two college students who had asked him for directions. He also admitted that he had sent e-mail to the students using the name "like2tryu2" with a subject heading of "BI MALE HERE."

Wilburn conceded that he had no "law enforcement" reason to obtain the names of the students nor their e-mail addresses and further acknowledged that the students had probably divulged their names to him only because he was a State Trooper.

The students became upset, angry and alarmed by these messages, especially since "like2tryu2" indicated that he knew the students. When they discovered Wilburn's identity, the students registered complaints with the Division of State Police.

Wilburn's defense: his motivation was altruistic and, at worst, constituted excusable poor judgment. Found guilty of the charges, Wilburn was dismissed from his position. He then initiated an Article 78 action, claiming that (1) there wasn't substantial evidence in the disciplinary record to support a determination of guilt and (2) the penalty imposed -- termination -- was too harsh.

The Appellate Division found that there was substantial evidence in the record to support the Superintendent's determination and, further, under the circumstances termination did not violate the Pell standard [Pell v Board of Education, 34 NY 2d 222] in that it was not so disproportionate as to shock one's sense of fairness.

The court said that regardless of the merit of Wilburn's testimony regarding his motivation, which, in fact, was specifically rejected by the disciplinary hearing panel, "the fact remains that he used his position as a State Trooper to obtain information for personal reasons, i.e., purposes unrelated to his law enforcement duties." Further, one of the students he contacted testified that he "didn't expect that to happen from a State Trooper" and the other "wonder[ed] what kind of people they hire if they're going to do that". Such testimony, said the Appellate Division, supported a finding that Wilburn's conduct tended to discredit the State Police.

As to Wilburn's argument that the penalty imposed, dismissal from the service, was disproportionate to the offenses he had committed, the court noted that the Division "did not rely solely upon the subject charges in determining the penalty." Rather, said the court, the Division "properly considered [Wilburn's] employment record over 10 years which contained approximately 16 founded complaints, including, neglect of duty and incompetence."

The court commented that the Superintendent "properly considered" Wilburn's employment history with the Division in setting the penalty.

Sometimes the use of the employee's personnel record by the disciplinary hearing officer or arbitrator to determine the severity of the penalty to be imposed on an employee found guilty of one or more of the charges filed against him or her is challenged by the individual.

The general rule applied by the courts when asked to determine if the employee's personnel record was lawfully considered in setting the disciplinary penalty is that the employee's personnel records may be considered in setting a penalty, provided the employee is advised that this will be done and is given an opportunity to comment on the contents of his or her personnel file.

The case usually cited as authority for this proposition is Bigelow v Trustees of the Village of Governour, 63 NY2d 470.

Further, the employee's consent is not required in order for the hearing officer or arbitrator to consider the employee's personnel record in determining an appropriate penalty.

In some cases the employee's work history may serve to mitigate the imposition of a harsher penalty than would be appropriate under the circumstances because of the individual's otherwise exemplary performance record. Sometimes the individual may request that his or her entire personnel record be considered in order to mitigate the penalty to be imposed.

In contrast, a history of a series of petty offenses by the individual may have a cumulative impact in the determining the appropriate penalty to be imposed. For example, courts have sustained the dismissal of an employee for a series of misdeeds that if considered individually would not have been viewed as justifying termination.

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

The Discipline Book at

A Reasonable Penalty Under The Circumstances at

The Disability Benefits E-book: at

Layoff, Preferred Lists at


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