Thursday, September 05, 2013

Accused employee’s threat to kill the presiding disciplinary arbitrator does not constitute “free speech” within the ambit of the First Amendment

Employee’s threat to kill the presiding disciplinary arbitrator does not constitute “free speech” within the ambit of the First Amendment
2013 NY Slip Op 05765, Appellate Division, First Department

In the course of a disciplinary hearing, the accused employee [Petitioner] had made death threats against the arbitrator during a telephone conversation with the attorney who was then representing him in the proceeding.

When the arbitrator learned of the death threats, he recused himself and was replaced by a second arbitrator, who found Petitioner guilty of failing to properly supervise students and excessive absences. As a result, Petitioner was suspended without pay for one year.

After investigating the alleged death threats made against the first arbitrator, the appointing authority filed disciplinary charges based on that event. In the second disciplinary action the arbitrator found that the evidence supported the alleged death threats and recommended that Petitioner be terminated from his position.

The Appellate Division sustained the arbitration award, finding that it was made in accord with due process, was supported by adequate creditable evidence, was rational and was not arbitrary and capricious. Further, said the court, “hearsay evidence can be the basis of an administrative determination … and each of the specifications upheld by the arbitrator was supported by testimony of witnesses having personal knowledge of the material facts or hearsay evidence that substantiated the basis for the charges.”

As to Petitioner’s claim that the second disciplinary proceeding and the ultimate disciplinary penalty imposed against him – termination -- violated his right to free speech under the First Amendment to the United States Constitution, the Appellate Division said that “Supreme Court properly deferred to the arbitrator's finding that [Petitioner’s statements are exempt from First Amendment protection because they constitute ‘true threats.’"

The Appellate Division said that Petitioner’s former attorney “only disclosed the [death] threats because he believed that Petitioner's increasingly erratic behavior rendered him genuinely dangerous.” Under the circumstances, said the court, "it cannot be argued that Petitioner’s speech implicates matters of public concern … [n]or can it be disputed that Petitioner’s death threats disrupted the initial arbitration proceeding."

The decision is posted on the Internet at:

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Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

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Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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