A public employee's misconduct while "off-duty" may result in disciplinary action being initiated against the employee by his or her appointing authority
Office of Administrative Trials and Hearings [OATH], Index No.1229/17
An appointing authority may bring disciplinary charges pursuant to §75 of the Civil Service Law for alleged off-duty misconduct or its statutory or contractual equivalent "where there is a sufficient nexus between the misconduct and the employing agency."*
In this disciplinary action, OATH Administrative Law Judge Ingrid M. Addison found:
1. The employee, a peace officer, attempted to have forcible sexual intercourse, a criminal act inherently contrary to the law enforcement responsibilities of peace officers, and had pled guilty to Assault in the Third Degree, a Class A misdemeanor.
2. The appointing authority established a nexus between the employee’s off-duty misconduct and his job as "a law enforcement officer whose criminal conviction runs contra to his [or her] law enforcement duties. "
3. The disciplinary charges filed against the employee by the appointing authority were appropriate for his proven off-duty misconduct.
Judge Addison said that "this tribunal has generally applied the principles of progressive discipline, which aims to achieve employee behavior modification through increasing penalties for repeated or similar misconduct."
Noting that the employee had not previously been served with disciplinary charges, the ALJ explained that even absent a history of prior discipline, peace officers who engage in violent off-duty misconduct with or without a resulting criminal conviction may be terminated. In addition Judge Addison observed that "for off-duty misconduct, we have imposed penalties which have been commensurate with the level of misconduct and have included termination."
Accordingly, Judge Addison recommended that the employee be terminated from his employment having been found guilty of off-duty misconduct in attempting to engage in forcible sexual intercourse with his former girlfriend and causing her physical injury while doing so.***
* See, for example, Zazycki v City of Albany, 94 A.D.2d 925, Motion for leave to appeal denied, 60 N.Y.2d 558
** The employee was sentenced to a one-year conditional discharge, and a five-year Order of Protection was issued against him.
*** The appointing authority adopted the recommendation of the ALJ and terminated the employee from his position and the appointing authority's determination is appended to the text of the ALJ's findings and recommendation.
The decision is posted on the Internet at:
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