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September 23, 2019

Imposing the penalty of termination on an employee found guilty of misconduct following a disciplinary hearing overturned as "shocking to the conscience of the court"


A police officer was found guilty of misconduct after a disciplinary hearing. The Police Commissioner imposed the penalty of  dismissal. The Appellate Division modified the penalty imposed on the Petitioner by the Commissioner that resulted in the officer's termination and the forfeiture of his retirement benefits "on the law" and remanded the matter to the Commissioner "for determination of a lesser penalty."

Petitioner had admitted to the theft of $20 from an undercover officer illegally parked near a hydrant and acting intoxicated in the course of an integrity test* targeting Petitioner's partner. Evidence supported the finding that Petitioner also made false statements in the course of an official investigation in violation of the Police Department's Patrol Guide.

Although the Appellate Division concluded that there was no basis to disturb the credibility determinations of the Hearing Officer, it found that "under the circumstances presented here," the penalty of termination and forfeiture of [Petitioner's] pension "shocked the court's conscience and sense of fairness" and thus violated the so-called Pell Doctrine.**

The court opined that the question of whether a penalty is so disproportionate to the misconduct as to shock the conscience requires a case by case factual analysis and found mitigating factors that required it to vacate  the penalty of dismissal and the deprivation of Petitioner's right to his accrued pension. The Appellate Division characterized such a disciplinary penalty as an "affront to our sense of fairness" and "shock[s] the conscience" by the Appellate Division.

Considering mitigating factors, the majority of the court,*** conceding that Petitioner's conduct was "troubling," concluded that Petitioner's misconduct "was an aberration from his otherwise exemplary career," noting that Petitioner:

1. Had nearly twenty years of police service with the Police Department, prior to which he served in the United States Army for eight years where he was a sergeant in the military police, receiving an honorable discharge;

2. During his tenure with the Police Department, Petitioner had no formal disciplinary history, and received a total of 38 medals for "Excellent Police Duty" and "Meritorious Police Duty;" and

3. The loss of Petitioner's pension would work a financial hardship on his wife, who is diagnosed with cancer, and their now 10-year-old daughter.

* An integrity test places a police officer in a lifelike scenario to ascertain whether the officer would act in accordance with the law and Police Department policies.

** Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 222, generally referred to as the "Pell Doctrine."  Essentially the Pell Doctrine instructs that any permissible disciplinary penalty may be imposed on an employee found guilty of one or more disciplinary charges and specifications by an appointing authority or arbitrator unless the court finds that, considering the circumstances underlying the disciplinary action, such a penalty is "shocking to one's sense of fairness."

*** Judges Richter and Kern dissented in part in a memorandum by Judge Richter, concluded that in view of Petitioner's "on-duty theft of money and his subsequent false statements, both of which are offenses involving moral turpitude, the penalty of termination is not so disproportionate to the offense as to shock one's sense of fairness."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_06568.htm


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A Reasonable Disciplinary Penalty Under the Circumstances

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