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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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Thursday, June 29, 2017

A police officer holds a position of great sensitivity and trust and is subject to a higher standard of fitness and character are "ordinary civil servants"


A police officer holds a position of great sensitivity and trust and is subject to a higher standard of fitness and character are "ordinary civil servants"
Oliver v D'Amico, 2017 NY Slip Op 04596, Appellate Division, Fourth Department

A former New York State Trooper, Jean Oliver, commenced a CPLR Article 78 proceeding seeking to annul Commissioner of State Police's determination finding her guilty of certain disciplinary charges or, in the alternative, to vacate the penalty of dismissal imposed upon her. Oliver contended that the Superintendent's determination was not supported by substantial evidence and that the penalty of dismissal is "shocking to one's sense of fairness."

Citing Wilson v City of White Plains, 95 NY2d 783, the Appellate Division sustained the Superintendent's determination, explaining that "It is well established that, '[i]n CPLR Article 78 proceedings to review decisions of administrative tribunals, the standard of review for the Appellate Divisions ... is whether there was substantial evidence to support the Hearing Officer's decision.'" The court found that, contrary to Oliver's contention, the Superintendent's determination was supported by substantial evidence.

Although Oliver also argued that the hearing panel had improperly expanded the charge in Charge number one by expanding the scope of the alleged order from an order to refrain from working on certain cases she had been assigned while at CNET to an order to refrain from working on related cases or being involved in "any matters related to her previous work, the Appellate Division rejected her contention, noting that Charge number one was "reasonably specific, in light of all the relevant circumstances, to apprise [Oliver] . . . of the charges against [her] . . . and to allow for the preparation of an adequate defense." Further, said the court, the evidence at the hearing established that "[Oliver's] guilt was based only on violations that were charged."*

As to the penalty imposed, dismissal, the court, quoting from Kelly, 96 NY2d at 38,  concluded that the penalty of termination is not shocking to one's sense of fairness noting that "Judicial review of an administrative penalty is limited to whether the measure or mode of penalty or discipline imposed constitutes an abuse of discretion as a matter of law . . . [T]he Appellate Division is subject to the same constraints as th[e] Court [of Appeals]—a penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness,' thus constituting an abuse of discretion as a matter of law."

Of critical importance, said the Appellate Division, is the principal that "a State Trooper holds a position of great sensitivity and trust . . . and [a] higher standard of fitness and character pertains to police officers than to ordinary civil servants." Thus, given the conduct underlying the offenses -- directly disobeying an order and making false statements in an Internal Affairs interview and on official police records, and Oliver's refusal to accept any responsibility for her conduct. Accordingly, the court concluded that it could not say that the penalty of dismissal shocks its sense of fairness.

Finally, the court said it recognized that the allegations against Oliver did not involve any harm to the public, any misconduct for her personal gain or official corruption. It also noted that charges herein "were filed following petitioner's initial complaints of discrimination and that the Equal Employment Opportunity Commission has since found that "there is reasonable cause to believe that [the New York State Police] has discriminated against [petitioner] on account of her gender and in retaliation for engaging in a protected activity."

However, said the Appellate Division, its review of the penalty is extremely limited and it does not have any "discretionary authority or interest of justice jurisdiction in reviewing the penalty imposed."

* Oliver also argued that the hearing panel failed to consider the retaliatory motive of the disciplinary charges in violation of Civil Service Law §75-b, the so-called "whistle blower statute." The Appellate Division said that she failed to raise that contention in her petition and thus that contention was "not properly" before it.

The decision is posted on the Internet at:

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A Reasonable Disciplinary Penalty Under the Circumstances - The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on http://booklocker.com/books/7401.html
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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/

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