April 19, 2019

Setting the terms and conditions of a disciplinary probationary period

Pleading nolo contendere* to criminal charges that he had recklessly operated his personal automobile while off-duty, a New York City police officer and the New York City Police Department "disposed" of the subsequent administrative disciplinary action taken against the officer by entering into a "settlement agreement." Under the terms of the settlement agreement the officer was placed on "disciplinary probation" for a specified period. This meant that the tenure he previously enjoyed was suspended for the duration of the disciplinary probationary period agreed upon and he could be summarily dismissed at any time during the probationary period by the appointing authority without notice and hearing.

While in disciplinary probationary status the police officer was arrested on assault charges alleged by a third party, which led to the officer being summarily dismissed from his position. 

Subsequently the assault charges were withdrawn. The officer then sued, seeking a court order directing his reinstatement to his former position, an awarded of back pay and an order directing the Police Department to give him a "name-clearing hearing." Supreme Court dismissed his CPLR Article 78  petition and the officer appealed the ruling to the Appellate Division.

Addressing the police officer's contention that he was unlawfully terminated and therefore should be reinstated to his former position with back salary and benefits, the Appellate Division said that as a probationary employee the officer could be dismissed without a hearing or a statement of reasons. Only in the event the officer demonstrated that his dismissal was made in bad faith or was for a constitutionally prohibited reason or was prohibited by statutory or case law could the officer claim wrongful discharge.**

In contrast, in the event the stipulation establishing the employee's "disciplinary probation period" sets out the acts or omissions that could trigger the individuals being summarily termination from his or her position, the employee may be summarily terminate without notice and hearing only in the event he or she is found to have violated the specified term or condition stipulated in the disciplinary probationary period agreement.

This point is illustrated in ruling by the Appellate Division in Taylor v Cass, 505 NY2d 929.

Under the terms of a disciplinary settlement, Taylor could be terminated without any hearing if, in the opinion of his superior, his job performance was adversely affected by his consumption of alcohol. 

Taylorwas subsequently summarily terminated from his position for allegedly sleeping on the job without notice and hearing and initiated an Article 78 proceeding against his former employer seeking reinstatement to his former position.

Although the employer contended that it terminating Taylor without a hearing was permitted under the terms of the disciplinary settlement agreement, the Appellate Division disagreed and directed the agency to reinstate Taylor to his position with back pay and benefits.

The court pointed out that the reason given for summarily terminating Taylor -- sleeping on the job -- was not a reason justifying his being summarily dismissed from his position authorized by the settlement agreement. The court explained that under the terms of the settlement agreement Taylor could only be terminated without a hearing if he was found to have violated the specific reason set out in the agreement, i.e., his performance of his duties was unsatisfactory because of his consumption of alcohol. 

* Nolo contendere is a plea by which a defendant in a criminal prosecution accepts his or her of conviction of the charge or charges as though he or she had entered guilty plea but does not actually admit guilt. A plea of "nolo contendere," however, has the same primary legal effects as had the individual entered a plea of "guilty as charged."

** See Green New York City Police Department, et al., 235 AD2d 475.  The Appellate Division  also rejected the police officer's demand for "a name-clearing hearing," explaining that a former employee is entitled to a name clearing hearing only if he or she can demonstrate that the employer publicly disclosed false and stigmatizing reasons for his or her termination.

The Taylor decision is posted on the Internet at: