New York Public Personnel Law: Although individual acts of misconduct might not warrant termination of the individual, when considered in total dismissal could be the appropriate penalty to be impose

July 01, 2013

Although individual acts of misconduct might not warrant termination of the individual, when considered in total dismissal could be the appropriate penalty to be impose

Although individual acts of misconduct might not warrant termination of the individual, when considered in total dismissal could be the appropriate penalty to be impose

2013 NY Slip Op 04414, Appellate Division, Third Department

The Fire District’s Board of Fire Commissioners served one of members of the Fire Department with disciplinary charges pursuant to General Municipal Law §209-l which in pertinent part, provides for Removal of volunteer officers and volunteer members of fire departments for incompetence or misconduct.

Subdivision 5 of §209-l states that a member of the fire department [1] suspend a volunteer firefighter after charges are filed and pending disposition of the charges and [2] after the hearing may remove such person or may suspend him or her for a period of time not to exceed one year if he or she is found guilty of one or more of the charges served upon him or her.

§209-l further provides that “The provisions of this section shall not affect the right of members of any fire company to remove a volunteer officer or voluntary member of such company for failure to comply with the constitution and by-laws of such company.”

The Board of Fire Commissioner filed charges against one of the volunteer firefighters alleging that the volunteer [1] had engaged in misconduct, including violations of the Fire Department's bylaws and code of conduct. A hearing was conducted and the Hearing Officer found the volunteer guilty of the charges and recommended that he [1] be expelled from membership in the Fire Department and [2] removed from his position as an officer of the Fire Company.

The Board of Fire Commissioners adopted the Hearing Officer's findings of fact and conclusions of law and expelled the volunteer from the Fire Department and removed him from the office he had held.

In response to the individual’s challenge to the Board’s action the Appellate Division said that its determination that the individual was guilty of misconduct was supported by substantial evidence, noting that the Hearing Officer described volunteer's conduct as "persistently, repeatedly, intentionally, willfully, and incorrigibly insubordinate" based on the testimony of witnesses and the volunteer’s personnel records with the Fire Department.

Citing Matter of Kelly v Safir, 96 NY2d 32, the Appellate Division, noting that the volunteer’s acts of misconduct might not, individually, warrant expulsion from the Fire Department, said that “considering his conduct as a whole, we do not find the penalty of expulsion to be so disproportionate to the disciplinary charges as to be shocking to our sense of fairness.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_04414.htm

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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.