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November 4, 2011

Termination following off duty conduct that violated disciplinary probation settlement agreement.


Sills v Kerik, Appellate Division, First Department, 5 A.D.3d 247

The Appellate Division sustained a ruling by Supreme Court that rejected a former police officer’s attempt to annul his termination while he was on a disciplinary probation.

Edward Sills, dismissed while serving a one-year dismissal probation period. This probationary period reflected a settlement of disciplinary charges based on allegations of driving while intoxicated and being unfit for duty due to consumption of alcohol. Sills sued the New York City Police Department alleging his termination constituted a violation of the Human Rights Law.

According to the ruling, Sills alleged that he is an alcoholic and thus disabled within the meaning of the Human Rights Law (Executive Law §296 [1] [a]). However, the opinion indicates that Sills did not allege that he was seeking rehabilitation at the time of his termination, nor that his drinking at a party in a parking lot just prior to his termination, and then driving home, provided the Department with a basis to believe that his last attempt at rehabilitation, completed less than four months earlier, was unsuccessful.

In the words of the Appellate Division:

The Human Rights Law does not, as in the case herein, protect an individual who, subsequent to the completion of rehabilitation, suffers a relapse and is found guilty of, and is dismissed for, misconduct.

Supreme Court Justice Heitler approved the termination of Sills’ termination from his position pursuant to a "Terminate Probation Agreement." Sills had signed the agreement in settlement of an earlier disciplinary action. The agreement included the following terms and conditions agreed to by Sills:

The Police Commissioner may impose punishment of dismissal or any lesser penalty he deems appropriate at any time during such period [of probation].

I am fully aware of the fact that I am entitled to a Disciplinary Hearing pursuant to applicable laws of the City and State of New York in which I would be entitled to representation, to confront witnesses against me and to appeal an adverse decision rendered after such hearing to a Court or Administrative Agency of proper jurisdiction.

If this penalty is approved by the Police Commissioner, I accept said decision, and as a condition of accepting such decision of the Police Commissioner, I hereby waive any and all rights granted to me under all applicable laws of the City and State of New York and acknowledge that this acceptance is the same as a finding of guilt after a hearing.

Sills and the Department had entered into the agreement after Sills conceded he was guilty of disciplinary charges alleging that he:

1. Wrongfully operating a motor vehicle while under the influence of alcohol or drugs;

2.Wrongfully and without just cause refusing to submit to a Breathalyzer test; and

3.Was unfit for duty due to having consumed an unknown quantity of an intoxicant

rather than proceed to a disciplinary hearing where the penalty sought by the Department was dismissal from the service.

While on disciplinary probation Sills participated in "off duty" beer drinking with some fellow police officers. Citing the terms of the agreement, the Commissioner terminated Sills from his position without a hearing. Sills sued, seeking a court order annulling his termination and reinstating him to his former position with back salary and benefits.

Sills argued that "he did not commit any misconduct and, as such, there was no reason for his termination." He contended that his drinking beer was done on private property and that off-duty police officers are not prohibited from drinking alcohol as long as they remain fit for duty. Sills also claimed employment discrimination, alleging that the Department "sought to rid itself of an employee with a previously admitted drinking problem and used his probation agreement as a pretext for his termination so that he would not be entitled to a hearing.

The Department, on the other hand, argued that at the time it terminated Sills he was under disciplinary probation that provided for his termination "without a hearing and without a statement of reasons absent a constitutional or statutory violation."

Justice Heitler said that a court must consider whether or not Sills termination was unjustified, unduly harsh, arbitrary, capricious or made in bad faith. Justice Heitler concluded that "[a]s long as the dismissal is not made in bad faith, a probationary employee may be dismissed for any reason or for no reason without a hearing or statement of reasons."

According to the decision, Sills had the burden of showing bad faith by the Department and he was unable to meet this burden.

The court also commented that "even in the case of a non-probationary officer, the Commissioner has the right to terminate for purposes of maintaining the integrity of the police department."

The court dismissed Sills petition, stating that as "a policeman with a history of intoxication, ... [he] ignored his history with alcohol; he further didn't appreciate the fact that, despite this history, he was given a second chance ... his being put on probation."

As to Sills claim of unlawful discrimination because of a disability, Justice Heitler said that because "his admitted conduct demonstrates that he is an alcoholic who continues to drink and is not in a rehabilitation program," he cannot claim protection under §296(1) of the Executive Law as that provision only applies in cases of rehabilitated and rehabilitating drug abusers.

Further, said the court, even if [Sills] did fall within the scope of §296, the reason offered by the Police Department for its terminating him "is the maintenance of the integrity of the Police Force, and legitimate and non-discriminatory in nature."

Justice Heitler said that, under the "totality of the circumstances," he found that Sills failed to meet his burden and dismissed his petition in its entirety. As noted above, the Appellate Division dismissed Sills’ appeal in its entirety.

Public Personnel Law E-books

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A Reasonable Disciplinary Penalty Under the Circumstances - A 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. For more information click on

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