New York Public Personnel Law: Discipline involving alleged off-duty misconduct

August 24, 2012

Discipline involving alleged off-duty misconduct

Discipline involving alleged off-duty misconduct
Local 342 v Town of Huntington, 52 AD3d 720

Local 342 brought an Article 75 action seeking to vacate an arbitrator’s award based on a “finding that the Town had just cause for suspending [an employee] from his position with the Town."

The genesis of the Town’s action: An Ordinance Inspector from the Town cited a building owned by the accused employee and his wife for numerous violations of the Huntington Town Code. Local 342 had appealed the ruling, contended that the award was irrational because the employee’s performance of his duties was completely unrelated to the off-duty misconduct of which he was accused.

Supreme Court vacated the arbitration ward on the ground that it was irrational and, therefore, the arbitrator had exceeded her authority. The Appellate Division sustained the lower court’s ruling.

The Appellate Division ruled that while the charges against the employee emanating from his ownership of premises situated in the Town were "substantial and directly affect the safety of the public," they did not relate to his character, neglect of duty, or fitness to properly discharge the duties of his position. In this regard the Appellate Division decided that the Local had met its burden of showing that the award is irrational because there was "no proof whatever” to justify the award in view of the fact that the employee’s performance of his official duties “were completely unrelated to the off-duty misconduct of which he is accused.”

If an arbitrator's award is completely irrational, "it may be said that [s]he exceeded [her] power" and thus, said the Appellate Division, Supreme Court properly vacated the award.

NYPPL Comments: In New York State, unless otherwise provided by a collective bargaining agreement or by statute, typically only incompetence or misconduct related to job performance or off-duty misconduct adversely reflecting on the public employer [see, for example, Smith v Kerick, 292 A.D.2d 223 and Wilburn v McMahon, 296 A.D.2d 805] may serve as a lawful basis for an appointing authority initiating disciplinary action against a public officer or employee.

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/discipline-related-to-alleged-off-duty.html

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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.