Law enforcement officers may be held to higher standards of conduct than other civil service employees
2014 NY Slip Op 04297, Appellate Division, Fourth Department
A County Correction Officer [Petitioner] was alleged to have violated departmental rules and regulations and, after an advisory arbitration hearing, was suspended from his position without pay for 45 days.
Petitioner initiated an Article 78 proceeding seeking a court order annulling the appointing authority’s determination. Supreme Court confirmed the determination with respect to two of the three charges. The third charge, which alleged misconduct with respect to Petitioner's voluntary, off-duty attendance at a social event hosted and, or, sponsored by the Hells Angels Motorcycle Club was annulled and the matter remitted to the appointing authority "to determine whether the penalty should be adjusted as a result" of the annulling of the finding of guilt with respect to the third charge.
The Appellate Division thought differently, concluding that the determination should be confirmed in its entirety; that the petition should be dismissed and the judgment of the Supreme Court modified accordingly.
The court said that the proper standard of review is whether there is a rational basis for the determination or whether it is arbitrary and capricious, and not whether the determination is supported by substantial evidence.
The Appellate Division explained that the hearing was mandated by a collective bargaining agreement and not required by statute or law. Thus  the “substantial evidence” test was not applicable in this instance and  both the determination of guilt and the penalty imposed are subject to judicial review.
Turning to the merits of the appeal, the court said that "[a]n action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts." Further, an agency’s determination "is entitled to great deference" if the reviewing court finds that the determination is supported by a rational basis and it “must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the agency."
The Appellate Division also commented that “it is well settled that law enforcement officers may be ‘held to higher standards than ordinary civil service employees’ and that an administrative determination regarding discipline will be afforded heightened deference where a law enforcement agency . . . is concerned."
Finally, the court said that the penalty is not "so disproportionate to the offense as to be shocking to one's sense of fairness," citing Matter of Pell, 34 NY2d at 222. In view of the fact Petitioner was a law enforcement officer with over 20 years of experience, the Appellate Division said that he should have known that his participation in a Hells Angels-sponsored event would raise, at the very least, an appearance of impropriety, and that such participation could potentially jeopardize his authority and effectiveness as a correction officer.
Noting that Petitioner was "unrepentant, insisting that his personal opinion of [Hells Angels] and its members was the only criterion upon which his conduct should be judged," the court said it found no basis to disturb the penalty imposed by the appointing authority.
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