Wednesday, November 02, 2011

Imposing a disciplinary penalty

Toth v Nassau County Police Department, 302 AD2d 600
Was suspending a police officer found guilty of a number of charges of misconduct without pay for 270 days lawful? After all, the Section 75 of the Civil Service Law limits such a suspension without pay for a period not to exceed two months.

The Appellate Division, Second Department, said it was appropriate under the circumstances and the controlling law. It sustained the 270-day suspension without pay disciplinary penalty imposed by the appointing authority on Nassau County police officer Peter S. Toth after he was found guilty of:

1. Two counts of engaging in conduct unbecoming an officer,

2. One count of using departmental equipment other than in the course of official business,

3. Four counts of engaging in unlawful conduct,

4. Two counts of failing to treat as confidential the official business of the Nassau County Police Department, and

5. One count of making or submitting, or causing to be submitted, a false official communication, record, or statement.

The Appellate Division said that Toth's guilt with respect to these charges was supported by substantial evidence in the record. As to the nature of the penalty imposed, the court said that the Police Department's determination regarding appropriate internal discipline to be imposed is entitled to great deference and, "under the circumstances of this case, will not be disturbed."

Although §75 of the Civil Service Law limits the suspension without pay for a period of not to exceed two months, the Appellate Division, citing Coscette v Town of Wallkill, 281 AD2 479, ruled that the penalty of suspension without pay for 270 days was permissible pursuant to Civil Service Law §76(4) and Nassau County Administrative Code §8-13.0.

Section 76(4), in pertinent part, provides as follows:

Nothing contained in section seventy-five or seventy-six of this chapter shall be construed to repeal or modify any general, special or local law or charter provision relating to the removal or suspension of officers or employees in the competitive class of the civil service of the state or any civil division [emphasis supplied.]

In contrast to the “suspension without pay for a period not exceeding two months” cap set out in Section 75 of the Civil Service Law, §8-13.0(a)(3) of Nassau’s Administrative Code does not place any limitation on the length of any suspension, with or without pay, that may be imposed as a disciplinary penalty by he Commissioner of Police.*

* Nassau County Administrative Code §8-13.0 Discipline and punishment, in relevant part, provides as follows:
a. The Commissioner shall have power to discipline a member of the force by:

1. Reprimand;
2. Fine;
3. Suspension, with or without pay;
4. Dismissal or removal from the force; or
5. Reducing him to any grade below that in which he was serving. If he be above the grade of patrolman, after which his compensation shall be the same as that allowed to remembers [sic] of the grade to which he is reduced.

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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