Wednesday, March 23, 2016

Removing a volunteer firefighter from his or her position


Removing a volunteer firefighter from his or her position
Dolan v New Hyde Park Fire Dept., 2016 NY Slip Op 01844, Appellate Division, Second Department

Michael Dolan, Sr., an elected member of the New Hyde Park Board of Fire Commissioners [Board], also served as a member of the New Hyde Park Fire Department [Department].

The Board filed disciplinary charges against Dolan pursuant to General Municipal Law §209-L* alleging that he had violated certain Rules and Regulations of the New Hyde Park Fire District. After a disciplinary hearing conducted by a hearing officer, the Board adopted the findings and recommendation of the hearing officer and dismissed Dolan from his position as a volunteer firefighter with the Department.

Dolan filed a petition pursuant to CPLR Article 78 against the Department and the Board seeking a court order [1] annulling the determination of the Board and [2] compelling the Board and the Department to reinstate him to his former position.

Dolan contended that the actions for which he was removed from his position as a firefighter were actions taken in his capacity as an elected Commissioner on the Board rather than as a member of the Department and, therefore, the only permissible remedy was to initiate proceedings to remove him as a Commissioner pursuant to Public Officers Law §36** rather than by taking disciplinary action pursuant to General Municipal Law §209-L.

Supreme Court granted Dolan’s petition; the Board, and the Department appealed.

The Appellate Division reversed the lower court’s ruling, explaining that “the fact that Dolan could also have been removed from his position as Commissioner pursuant to Public Officers Law §36 did not abrogate the Board's right to remove him as a member of the fire department” pursuant to General Municipal Law §209-L."

As to the merits of the disciplinary action taken against Dolan, the court said that “the fire district sufficiently established that Dolan violated a provision of the Rules and Regulations of the New Hyde Park Fire District that "[a]ll members shall conduct themselves at all times in such a manner so as not to bring disgrace or adverse criticism or ill feeling against the Company, Department, or District . . . Violation of this rule will be grounds for dismissal." This provision, said the court, applied to Dolan as a firefighter.

In addition, the Appellate Division ruled that “The evidence was also sufficient to establish that Dolan violated the provision of the Supplemental Rules of Conduct and Procedure …. [that] [i]t shall be the duty of all members and officers to refrain from taking district, department and company property without proper authorization."

As to Supreme Court’s opining that the Board's determination regarding Dolan’s dismissal should have been annulled on the basis that the three Commissioners who rendered it should have each recused themselves, the Appellate Division said that “there was no evidence that those three Commissioners had such personal involvement as would mandate recusal.”

However, said the court, the Supreme Court did not reach the issue concerning the “excessiveness of the punishment” imposed on Dolan. Accordingly the Appellate Division, citing Featherstone v Franco, 95 NY2d 550, remitted the matter to the Supreme Court for consideration of whether the penalty of dismissal “was so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness”.

* §209-L provides that “The authorities having control of fire departments of cities, towns, villages and fire districts may make regulations governing the removal of volunteer officers and volunteer members of such departments and the companies thereof.”

** §36 of the Public Officer Law provides for the removal of a town, village, improvement district or fire district officer by a court.

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 
 _______________________

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/

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/

Caution:

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.

THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.

Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that the publisher is not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader should seek such advice from a competent professional.

Items published in NYPPL may not be used for commercial purposes without prior written permission to copy and distribute such material. Send your request via e-mail to publications@nycap.rr.com

Copyright© 1987 - 2017 by the Public Employment Law Press.



___________________



N.B. From time to time a political ad or endorsement may appear in the sidebar of this Blog. NYPPL does not have any control over such posting.

_____________________

.