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Nominations sought for the Empire Star Public Service Award

This award recognizes exemplary employees of New York State serving in the Executive Branch.

Nominations must be submitted no later than December 15, 2017 and may be completed online.

For more information about the Empire Star Public Service Award, visit www.ny.gov/EmpireStarPublicService.

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Monday, January 04, 2016

The employee’s testimony at the hearing differed from statements he gave during an investigative raised a question of credibility for the hearing officer to resolve


The employee’s testimony at the hearing differed from statements he gave during an investigative raised a question of credibility for the hearing orfficer to resolve
Durudogan v City of New York, 2015 NY Slip Op 08947, Appellate Division, First Department

The New York City dismissed Agah Durudogan, a New York City police officer, from his position following a disciplinary hearing. This action also had the effect of denying him eligibility for vesting retirement benefits.*

Durudogan appealed and Supreme Court, New York County, granted City of New York’s motion to dismiss his Article 78 petition. The Appellate Division subsequently vacated the lower court’s ruling and treated the proceeding as if it had been transferred to it for a “de novoreview pursuant to CPLR 7804(g),” explaining that Durudogan petition had raised an issue of substantial evidence and should have been initially so transferred to it.

Reviewing the matter de novo, the Appellate Division found that substantial evidence supported the City’s determination that Durudogan was guilty of numerous violations demonstrating his inability to conform his conduct to police department regulations.

Durudogan's contention that "the hearing officer improperly relied on hearsay evidence in finding him guilty of engaging in a verbal and physical domestic dispute" is unavailing said the court, finding that the hearing officer's determination was based on Durudogan's inconsistent statements in that his testimony at the hearing differed from the statements that he gave during an investigative interview. Accordingly, said the Appellate Division, the administrative decision was based on the hearing officer's credibility findings which are entitled to deference.

Further, the Appellate Division noted that “an administrative tribunal can rely upon credible hearsay evidence to reach its determination,” citing Muldrow v NYS Dept. of Correction and Community Supervision, 110 AD3d 425.

Citing Kelly v Safir, 96 NY2d 32, the court then found that dismissing Durudogan from the New York City police force was "not shocking to one's sense of fairness” in view of the record which indicated that Durudogan was brought up on five separate charges, based on events that occurred over a three-year period, and he was found guilty of nine of the specifications charged following a hearing.

Considering the possibility of mitigating of the penalty imposed by the City, termination, the Appellate Division concluded that although Durudogan was a decorated officer, with eighteen years of service, who often received high ratings on department evaluations, he also was previously disciplined for insubordination and placed on one-year dismissal probation.

The Appellate Division also noted the ruling in Vecchio v Kelly, 94 AD3d 545, leave to appeal denied 20 NY3d 855, in its decision. 

In Vecchio the court had annulled the Commissioner’s decision to terminate Vecchio in view of the fact it had dismissed certain of the charges brought against him and the remanded the proceeding for the Commissioner's determination of a new penalty. That court further directed that if the Commissioner adhered to imposing the penalty of termination, Vecchio  "should be permitted to apply for vested interest retirement benefits so as to avoid a punishment disproportionate to the offense, namely the extreme financial hardship to his innocent family." The Appellate Division explained that “In Vecchio, unlike here, [that court] found circumstances that warranted restoring Vecchio to a status that made him eligible to apply for the deferred retirement allowance as provided by Administrative Code §13-256(a), (b).

Upon completing its de novoreview the Appellate Division unanimously confirmed the City’s action and dismissed Durudogan petition.

* As Durudogan had less than 20 years of serve at the time of his termination, he lost his entitlement to deferred vested retirement rights upon his dismissal from City's the police force. §13-256 of the Administrative Code of the City of New York explicitly excludes a police officer having less than 20 years of service at the time he or she is discontinued as the result of his or her dismissal, death or retirement from applying for a deferred retirement allowance unless he or she filed an application for a deferred retirement allowance at least 30 days prior to the date of his or her discontinuance from service.

The decision is posted on the Internet at:

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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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The Disability Benefits E-book: at http://section207.blogspot.com/

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