Termination of a firefighter from his position held to be a reasonable disciplinary penalty under the circumstances

Termination of a firefighter from his position held to be a reasonable disciplinary penalty under the circumstances
2014 NY Slip Op 04941, Appellate Division, Second Department

A hearing officer found a firefighter [Firefighter] guilty of misconduct* and imposed the penalty of termination from the Department. Firefighter appealed the penalty imposed by hearing officer.

Supreme Court granted Firefighter’s petition with respect to the penalty imposed by:

[1] annulling so much of the determination as terminated the petitioner's membership in the Department,

[2] reducing the penalty to a suspension for a period of 29 months, with credit for the period of suspension already served, and

[3] directing the Department to reinstate Firefighter as a member of the Department.

The Appellate Division revered the Supreme Court’s decision “on the law” and confirmed the penalty imposed by the hearing officer.

The court noted that an administrative penalty must be upheld unless it "is so disproportionate to the offense . . . as to be shocking to one's sense of fairness," thus constituting an abuse of discretion as a matter of law. Here, said the court, Firefighter’s conduct endangered himself and distracted his coworkers while they were fighting a fire, thus possibly endangering them as well.

Under these circumstances the Appellate Division held that the penalty of termination of membership was not shocking to one's sense of fairness. Thus Supreme Court should have denied that branch of the petition which sought to review the penalty, confirmed the penalty, and dismissed the proceeding on the merits.

* The hearing officer found Firefighter guilty of “verbally abusive conduct directed to fellow firefighters during the course of a fire,” and failing to follow direct orders, including an order directing him to leave the scene of an emergency because he was not attired in proper gear.”

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