Termination of the employee following unsuccessful progressive disciplinary efforts did not shock the court’s "sense of fairness”
Phillips v York, 2016 NY Slip Op 00418, Appellate Division, Third Department
Warren County Sheriff's Office patrol officer Scott C. Phillips was served with two disciplinary charges as a result of his involvement in a preventable motor vehicle accident while on duty, an accident that allegedly resulted from his careless or negligent driving and that violated the terms of a previous disciplinary settlement agreement obligating him to exercise reasonable care in operating agency vehicles.
The Civil Service Law §75 Hearing Officer sustained both charges and recommended that Phillips be given a letter of reprimand, a two-month suspension and a one-year term of disciplinary probation. The appointing authority adopted the findings of the Hearing Officer with respect to Phillips’ guilt, but determined that, under the circumstances, termination was the appropriate penalty.
Phillips initiated a CPLR Article 78 proceeding challenging the appointing officer’s determination in Supreme Court, which transferred the action to the Appellate Division for resolution.
In his appeal Phillips first argued that appointing authority’s determination was arbitrary and capricious in that “it departed, without explanation, from prior disciplinary determinations imposing penalties well short of termination.” The Appellate Division said that those prior disciplinary actions “involve radically different misbehavior, a point noted by the Hearing Officer.” The court pointed out that while the appointing authority had declined to terminate employees for significant misconduct, those decisions are "factually distinguishable from this case” and did not require further explanation by appointing authority.
Phillips also contended that a September 2013 stipulation and agreement entered into by the parties following disciplinary action involving similar misconduct on the part of Phillips prohibited the appointing authority from terminating him. The court disagreed, noting that the stipulation and agreement relied upon by Phillips “did not include language prohibiting [the appointing authority] from seeking to terminate [Phillips] for future misconduct, and only stated that [the appointing authority] was free in his ‘discretion and without completion of all the formal provisions [of] . . . Civil Service Law §75 . . . [to] suspend [Phillips] without pay for a period not to exceed two (2) months’ if the terms of his probation were violated.” Significantly, the court said that had the parties "intended the clause to have a broader meaning" and preclude the appointing authority from seeking a harsher penalty if he employed the procedures set forth by Civil Service Law §75, it was incumbent upon them to "have specifically so stated."
Phillips also challenged the penalty of termination imposed by the appointing authority, claiming that such a penalty constituted an abuse of discretion because "it is so disproportionate to the offense as to shock [the court’s] sense of fairness" – a violation of the so-called the Pell Doctrine [Pell v Board of Education, 34 NY2d 222].
The Appellate Division was not persuaded by this claim, noting that “From March 2011 to December 2013, [Phillips] was involved in several preventable accidents while operating patrol vehicles. Despite progressive discipline imposed as a result of those accidents, it is evident that [the appointing authority] appropriately found from this history that [Phillips] would pose a risk to persons and property if he continued to hold his position as a patrol officer and, thus, we cannot say that the penalty of termination shocks our sense of fairness.”
The decision is posted on the Internet at:
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