October 31, 2018

Disciplinary probation


Disciplinary probation
Reillo v New York State Thruway Auth., 2018 NY Slip Op 02170, Appellate Division, Second Department

New York State Thruway Authority employee Anthony Reillo was served with  disciplinary charges alleging certain misconduct.

Reillo and the Thruway Authority then entered into a stipulation settling the disciplinary action whereby Reillo agreed to a one-year period of "disciplinary probation" which provided that the Thruway Authority could summarily terminate Reillo from his employment for any similar act or acts of misconduct. 

In addition, settlement stipulation provided that the determination that Reillo had engaged in such misconduct was to be at the sole discretion of the Thruway Authority.

In February 2016, the Thruway Authority terminated Reillo's employment based on incidents that occurred while he was still serving as a  disciplinary probationer. Reillo file an Article 78 petition seeking a court order directing the Thruway Authority to reinstate him to his former position with back salary.

Supreme Court denied the petition and dismissed the proceeding on procedural grounds, finding that Reillo failed to serve the notice of petition on the Attorney General as required by CPLR §7804(c). Reillo appealed but the Appellate Division affirmed the Supreme Court's determination.

CPLR §7804(c) provides that when a CPLR Article 78 proceeding is commenced against a "state body or officers" by a notice of petition, the notice of petition must be served upon the Attorney General. Following a "particularized inquiry" into the nature of the Thruway Authority and the statute claimed to be applicable to it, the Appellate Division concluded  that the Thruway Authority is a "state body" for the purposes of CPLR §7804(c). Thus, said the court, as the Attorney General had not been timely served, Supreme Court properly dismissed Reillo's petition.

Although the merits of Reillo termination was not considered in this action, it should be noted that frequently a settlement of a disciplinary action provides for the employee to serve a disciplinary probationary period and, as in Reillo, the individual is subject to being summarily terminated "without notice and hearing" if he or she violates the terms or conditions of his or her "disciplinary probation" settlement.

If, however, an employee is to be dismissed for violating the conditions of the disciplinary probation, the appointing authority must to make certain that the actions, or omissions, cited for triggering the termination of the employee serving the disciplinary probationary period do indeed violate the specific terms or conditions enumerated in the disciplinary settlement agreement as the decision in Taylor v Cass, 122 AD2d 885, demonstrates.

Taylor, a Suffolk County employee, won reinstatement with full retroactive salary and contract benefits after he was summarily, and as was ultimately determined, improperly, dismissed from his position while serving a disciplinary probation period.

In Taylor's case the terms of the disciplinary probation provided that Taylor could be terminated without any hearing if, in the opinion of his superior, his job performance was “adversely affected” by his “intoxication on the job during the next six months." Taylor was subsequently terminated without a hearing for “failing to give a fair day’s work” and “sleeping during scheduled working hours.”

The Appellate Division said the dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement of the disciplinary action agreement: intoxication on the job.

As the court noted in  Matter of Sepulveda, 123 AD2d 703, even employees who would otherwise be entitled to the benefits of Section 75 of the Civil Service Law or a similar statute, an employee's agreement to be placed on probation pursuant to terms set out in a settlement of a disciplinary action agreement sacrifices the notice and hearing requirements that would otherwise be available to the employee by such statute for the duration of his or her disciplinary probationary period.

Additionally, it is good practice make certain that the employee’s acceptance of disciplinary probation is set out in settlement of the disciplinary action agreement is made openly, knowingly and voluntarily and be memorialized to that effect in the written agreement signed by the parties.

The decision is posted on the Internet at:


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