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Wednesday, October 22, 2014

Employee improperly suspended without pay beyond the period permitted by Civil Service Law §75(3) credited with member service in a public retirement system


Employee improperly suspended without pay beyond the period permitted by Civil Service Law §75(3) credited with member service in a public retirement system
Battisti v City of New York, 2014 NY Slip Op 07065, Appellate Division, First Department

Anthony Battistiwas found guilty of misconduct after a disciplinary hearing and terminated from his employment with the New York City Police Department [NYPD]. He appealed NYPD’s determination and asked Supreme Court to [1] vacate the disciplinary action and [2] direct that NYPD “credit [him] with certain days withheld from the calculation of his service for pension purposes.”

Supreme Court transferred so much of Battisti’s petition that challenged the disciplinary determination to the Appellate Division and denied that part of Battisti’s petition that sought an order directing that he be credited with “certain days withheld from the calculation of his service for pension purposes.”

With respect to Battisti’s challenge to the disciplinary hearing proceeding, the Appellate Division held that “Substantial evidence supports the findings of the Assistant Deputy Commissioner for Trials that [Battisti] was guilty of the proffered charges,….”*

Addressing Battisti’s claims with respect his entitlement to member service credit in the retirement system, the court noted that in the course of the Battisti’ disciplinary action he was suspended without pay for a total of 99 days.

The initial 30-day suspension followed disciplinary charges that alleged that he had "knowingly associated with …. an individual reasonably believed to have engaged in criminal activity.” A second 69-day suspension without pay followed after the disciplinary charges were amended based on criminal charges filed against him as a result of an arrest in another jurisdiction.

Battisti argued that because Civil Service Law §75(3-a), as well as Administrative Code of City of NY §14-115, cap suspensions without pay of public employees awaiting hearing and determination of disciplinary charges at 30 days, he is entitled to be credited with 69 days of member service credit and thus is eligible for a retirement allowance based on his total member service.

NYPD’s answer on this point indicated that it had issued a check to Battisti reflecting its internal determination that he had been improperly suspended without pay for 39 days and was entitled to compensation for those days. This left just 60 days of suspension without pay. Further, said the Appellate Division, NYPD did not dispute the fact that all days for which a member of NYPD is paid are to be included in the calculation of time for purposes of all benefits, including pension.

The Appellate Division concluded that, assuming arguendo, that the NYPD properly suspended petitioner without pay for two 30-day periods based on distinct offenses resulting in 60 days of suspension without pay, based on NYPD's calculations it appears that Battisti had completed twenty years of creditable service as of the effective date of his termination.

Finding that NYPD had not set forth any legal basis for its subsequent internal determination to treat nine of the 39 days that had been credited to Battisti as suspensions without pay, notwithstanding the limit set by Civil Service Law §75(3-a), the Appellate Division ruled that “[a]bsent such explanation for excluding the nine days from the calculation of creditable service, the determination to deny [Battisti] a pension was arbitrary and capricious in that it was taken "without regard to the facts."

*The court said that Battisti’s“arguments concerning [a witness’s] credibility and motive to lie at the [disciplinary] hearing are beyond the review of this Court,” citing, Berenhaus v Ward, 70 NY2d 436.

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:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances 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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