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Tuesday, October 20, 2015

Disclosing information that a "whistle-blower believes constitutes an improper governmental action


Disclosing information that a "whistle-blower believes constitutes an improper governmental action
Gaffney v Addison, 2015 NY Slip Op 07372, Appellate Division, Fourth Department

The chief operator of the water treatment plant for the City of Watertown, Brian D. Gaffney, was served with disciplinary charges alleging that after his supervisor made certain operational decision, Gaffney reported the supervisor’s decision to the New York State Department of Health [DOH] without notifying his supervisor.

Such action allegedly violated prior directives concerning the “chain of command.” Gaffney’s supervisor said that Gaffney “stated that he had intended for DOH to 'intervene' in the operational decision, and that, given the same circumstances, he would take the same action again in reporting the decision to DOH. The disciplinary hearing officer found Gaffney guilty of the charges filed against him and recommended that he be terminated from his position. The City adopted the hearing officer’s findings and recommendation and dismissed Gaffney from his position.

Gaffney then initiated a CPLR Article 78 proceeding seeking a court order annulling the determination finding him guilty of misconduct and his termination from his position. The Appellate Division sustained both the finding that he was guilty of misconduct and the penalty imposed by the City.

The court explained that the determination that Gaffney had engaged in insubordination was supported by substantial evidence.*  In addition, said the court, “substantial evidence supports the finding of the Hearing Officer, which [the City] adopted, that [Gaffney] failed to make a good faith effort to notify the City of the information to be disclosed and, therefore, [Gaffney’s] disclosure to DOH was not protected by Civil Service Law §75-b.”

§75-b of the Civil Service Law, the so-called “whistle-blower law,” provides, in pertinent part, that prior to disclosing information to a governmental body "(i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or (ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action," the employee shall make a good faith effort "to provide the appointing authority or his or her designee the information to be disclosed and shall provide the appointing authority or designee a reasonable time to take appropriate action unless there is imminent and serious danger to public health or safety.”

While Gaffney contended that “such an effort would have been futile,” the Appellate Division concluded that Gaffney’s testimony to that effect merely raised an issue of credibility that the Hearing Officer was entitled to resolve against him.

Turning to the penalty imposed by Gaffney’s employer, the court said it had concluded that the penalty of termination is not "so disproportionate to the offense as to be shocking to one's sense of fairness and thus does not constitute an abuse of discretion as a matter of law … particularly in light of [Gaffney’s] statement that he would take the same action again if he were placed in the same situation.”

* Substantial evidence was described by the court as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."

The decision is posted on the Internet at:
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The Discipline Book, - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html

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