Tuesday, September 08, 2015

Police officer suspended without pay pending a determination of criminal charges filed against him and any administrative disciplinary action taken against him


Police officer suspended without pay pending a determination of criminal charges filed against him and any administrative disciplinary action taken against him
2015 NY Slip Op 06729, Appellate Division, Second Department

In February 2013 a City of Mount Vernon police officer [Officer] was suspended without pay by the Commissioner of the City of Mount Vernon Police Department [Commissioner] pending a determination of the criminal charges and any administrative disciplinary action taken against him as the result of Officer’s arrest and being charged with falsifying business records in the first degree. It was alleged that Officer had submitted false overtime slips indicating that he had worked overtime during certain periods when he had not, in fact, worked overtime.

Before any administrative disciplinary charges were filed against Officer he commenced a proceeding pursuant to CPLR Article 78 alleging that the Mount Vernon City Charter did not authorize the Commissioner to impose punishment on a police officer unless the police officer had been found guilty after a disciplinary hearing.Officer asked Supreme Court for an order reinstating to his position as a police officer with back pay. 

Supreme Court, concluding that the Commissioner exceeded his authority under the City Charter by suspending Officer indefinitely without pay, granted Officer’s petition to the extent of limiting the period of suspension without pay to 30 days, restoring Officer’s salary pending a final determination of any administrative disciplinary charges, and awarding Officer back pay from March 15, 2013.

Citing Coscette v Town of Wallkill, 281 AD2d 479, the Appellate Division revered the Supreme Court’s ruling. The court explained that the Mount Vernon City Charter was enacted prior to Civil Service Law §§75 and 76 and thus the provisions of the City Charter governing the discipline of police officers are controlling with respect to matters concerning police discipline.

The Mount Vernon City Charter §116, said the court, provides that the Commissioner "is authorized and empowered to make, adopt, promulgate and enforce reasonable rules, orders and regulations for the government, discipline, administration and disposition of the officers and members of the Police Department, and for the hearing, examination, investigation, trial and determination of charges made or prepared against any officer or member of said Department" for certain specific offenses"

Pursuant to the delegation of rule-making authority in City Charter §116, the Commissioner had, in fact, promulgated a disciplinary procedure, which includes a regulation providing that "[m]embers of the [Police] Department may be suspended from duty, whenever in the opinion of the Commissioner . . . such action is appropriate." The Commissioner relied on this regulation in suspending Officer without pay pending a determination of the criminal charges and any future disciplinary charges.

The Appellate Division held that given the broad delegation of authority in City Charter §116, the disciplinary procedure regulation allowing the Commissioner to suspend members of the Mount Vernon Police Department has a rational basis and was not unreasonable, arbitrary and capricious, or contrary to the statute under which it was promulgated.

Thus, said the court, the Commissioner did not exceed his authority under the City Charter in relying on this regulation to suspend Officer without pay pending a determination of the criminal charges and any future administrative disciplinary action and, accordingly, the judgment of the Supreme Court must be reversed.

The decision is posted on the Internet at:

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The Discipline Book - a 448 page e-book focusing on disciplinary actions involving State, municipal and school district public officers and employees. For more information click on http://thedisciplinebook.blogspot.com/
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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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