Tuesday, July 03, 2012

A police force is a semi-military organization and the appointing authority has “great leeway” is determining an appropriate disciplinary penalty


A police force is a semi-military organization and the appointing authority has “great leeway” is determining an appropriate disciplinary penalty
Smeraldo v Rater, 55 AD3d 1298

Timothy J. Smeraldo brought an Article 78 proceeding challenging the penalty of termination of his employment with the Jamestown Police Department after he was found guilty of conduct that was disrespectful of a superior officer. Smeraldo contended that the penalty of termination is so disproportionate to the offense as to be shocking to one's sense of fairness. In addition, Smeraldo alleged that the Hearing Officer improperly relied upon facts that were not in evidence.

The Appellate Division rejected Smeraldo’s claim that penalty imposed was “shocking to one’s sense of fairness. The court said that it is well established that courts must uphold the disciplinary penalty imposed by an appointing authority unless, as a law, it is an abuse of discretion, citing Kelly v Safir, 96 NY2d 32.

The Appellate Division said that "A police force is a quasi-military organization demanding strict discipline" and "great leeway” must be accorded to “determinations concerning the appropriate punishment, for it is the [Chief of Police] . . . who is accountable to the public for the integrity of the Department."

In this instance the Hearing Officer found that Smeraldo had made a remark in front of several other officers that was disrespectful of a superior officer. Further, said the court, “the record establishes that [Smeraldo] has a prior disciplinary record, including a 30-day suspension and a demotion in rank that occurred less than one year prior to the present offense. In addition, the decision reports that Smeraldo that settlement agreement with the Department for the charge resulting in that suspension and demotion, Smeraldo expressly stated that "he will endeavor not to violate any other Department policy in the future" and that there was evidence at the hearing that he had previously been counseled on the issue of making inappropriate comments, including comments that demonstrated insubordination.

Noting that the settlement agreement was received as evidence in the course of the disciplinary hearing, the Appellate Division concluded that there was no basis for Smeraldo’s claim that the Hearing Officer improperly relied upon facts not in evidence.

The full text of the decision is posted on the Internet at:

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