Monday, August 01, 2016

Attempting to avoid disciplinary action


Attempting to avoid disciplinary action
2016 NY Slip Op 05608, Appellate Division, Third Department

A New York State Trooper [ST] was allegedly involved in "an incident" in the course of performing official duties. The Internal Affairs Bureau of the Division of State Police [IBA] investigated the incident and recommended that "appropriate administrative action" be taken against ST. Two days after the IAB issued its report, but before any formal disciplinary charges were served on ST, ST submitted a notice of his "intent to retire."

ST subsequently applied for an identification card indicating that he was a State Police Retired Member.* The Superintendent rejected ST’s application for such an identification card after concluding that  ST "had engaged in serious misconduct and retired in order to avoid disciplinary action.” Accordingly, the Superintendent explained, ST had not retired in good standing

ST commenced a CPLR Article 78 proceeding, claiming that the Superintendent’s determination was arbitrary and capricious and without a rational basis because ST “was not facing any charges of serious misconduct at the time that he retired.”

The Appellate Division affirmed the Supreme Court’s dismissal of ST’s the petition, explaining that the court’s review of an Article 78 challenge to an administrative determination such as the one brought by ST was limited to whether the administrative determination was arbitrary and capricious, lacked a rational basis or was affected by an error of law. Further, said the Appellate Division, a court would not substitute its judgment for that of the appointing authority if that conclusion was reasonably supported by the record.

The court's decision notes that in denying ST’s request for the identification card, the Superintendent considered the IAB's report and ST’s personnel records. These records  indicted that [1] ST had been "the subject of recent counseling and below standard performance ratings" and [2] ST had been the subject of “six founded personnel complaints” during his tenure as a trooper and was "the subject of a pending personnel complaint” at the time of his retirement.

The Appellate Division said that the record established that although disciplinary charges had not been served upon ST prior to his submitting a notice that he intended to retire, the formal submission of his notice of an intention to retire "effectively suspended any internal disciplinary proceedings against him."**

Although ST denied that he engaged in misconduct or retired to avoid disciplinary action, the Appellate Division concluded that the record supported the Superintendent's determination that ST was not eligible for the requested identification card because he engaged in serious misconduct shortly before his retirement and did not retire in good standing.

Finding that the Superintendent’s determination was not arbitrary and capricious nor lacking in a rational basis, the Appellate Division declined to disturb it.

* The significance of the possession of such identification is that 18 USC §926C provides that "an individual who is a qualified retired law enforcement officer and who is carrying the identification required . . . may carry a concealed firearm." Executive Law §231, amended  effective January 20, 2015, provides that Superintendent of State Police "shall develop and distribute uniform identification cards to all sworn members of New York [S]tate [P]olice, upon such members' retirement in good standing" and the phrase "retirement in good standing" means that the State Police member "retired from his or her employment for reasons other than the avoidance of disciplinary charges."

** 4 NYCRR 5.3 Resignation, provides, in pertinent part, that when charges of incompetency or misconduct have been or are about to be filed against an employee of the State as the employer, the appointing authority may elect to disregard the resignation filed by the employee and to prosecute such charges and, in the event that the employee is found guilty of such charges and the penalty imposed is dismissed from the service, his or her termination "shall be recorded as a dismissal rather than as a resignation." Many local civil service commissions have adopted a similar rule. The decision in Blair v Horn, 2008 NY Slip Op 32581(U) [Not selected for publication in the Official Reports] suggests that a court could deem a retirement to be the equivalent of a resignation for the purposes of 4 NYCRR 5.3(b). See, also, Elmira CSD v Newcomb, 266 AD2d 622, motion for leave to appeal dismissed, 94 NY2d 899.

The decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

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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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