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December 28, 2011

A formal rule or regulation describing the alleged act of misconduct is not required in order to file disciplinary charges against an employee

A formal rule or regulation describing the alleged act of misconduct is not required in order to file disciplinary charges against an employee
Matter of Matter of Foster v Aurelius Fire District, 2011 NY Slip Op 09483, Appellate Division, Fourth Department

Kevin Foster commenced a CPLR Article 78 proceeding challenging the determination finding him guilty of misconduct based upon actions constituting insubordination and failure to follow the chain of command. The penalty imposed: suspension and then reinstatement subject to a probationary period.

When Supreme Court transferred, the Appellate Division addressed the merits of Foster’s arguments “in the interest of judicial economy.”*

As to the merits of the issues raised by Foster, the Appellate Division rejected his argument that the charge against him should have been dismissed because it failed to specify any rule, regulation, policy or bylaw that he violated.

Noting that Forster had conceded at the administrative hearing that he was aware of Fire District's policies with respect to the chain of command, the court said that record establishes that Foster “deliberately circumvented that chain of command to undermine the authority of his superior officer.”

Citing Murphy v County of Ulster, 218 AD2d 832, leave to appeal denied 87 NY2d 804, the Appellate Division held that under the facts of this case Foster’s contention that “a specific act or misdeed must be embodied in a formal rule or regulation before it may serve as a basis for disciplinary action is unavailing."

The court also rejected Foster’s claim that the penalty imposed, which includes suspension followed by a probationary period, is "so disproportionate to the offense as to

* The Appellate Division commented that as Foster did not raise a substantial evidence issue, Supreme Court erred in transferring the proceeding to it.

The decision is posted on the Internet at:

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