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November 21, 2019

Court's dismissal of one or more specification set out in a disciplinary charge requires remanding the matter to the appointing authority for reconsideration of the disciplinary penalty imposed on the employee


The appointing authority filed disciplinary charges against a public safety dispatcher [Petitioner] pursuant to Civil Service Law §75. Charge I consisted of six specifications alleging misconduct and, or, incompetence in connection with the Petitioner's handling of a request for assistance on a specified date and Charge II, consisted of five specifications, alleged misconduct and, or, incompetence in connection with the Petitioner's handling of a request for assistance on a different specified date. Petitioner testified that, aside from the two "911" calls forming the bases of Charges I and II, he had never hung up on callers or yelled at callers.

The appointing authority then directed a further investigation into the Petitioner's handling of other 911 calls. As a result in this investigation the appointing authority filed "seven supplemental charges", Supplemental Charges I through and including VII against the Petitioner, each consisting of multiple specifications, arising from the seven additional calls.

Ultimately the designated disciplinary hearing officer found Petitioner guilty of specifications 5 and 6, as well as a portion of specification 4, of charge I; specifications 3, 4, and 5 of charge II; specification 4 of Supplemental Charge II; specification 4 of Supplemental Charge III; specification 4 of Supplemental Charge IV; specifications 4 and 5 of Supplemental Charge V; specification 4 of Supplemental Charge VI; and specification 4, as well as a portion of specification 6, of Supplemental Charge VII. The hearing officer recommended termination of the Petitioner's employment given "the number and extent of his instances of misconduct and/or incompetence" demonstrating that he is "not a reliable or responsible 9-1-1 dispatcher." The appointing authority adopted the hearing officer's findings and recommendation, and terminated the Petitioner's employment.

Petitioner then initiated a CPLR Article 78 action in Supreme Court seeking a judicial review the appointing authority's determination. Supreme Court transferred the matter to the Appellate Division pursuant to CPLR §7804(g).

The Appellate Division commenced its review of Petitioner's appeal by noting that judicial review of an Article 78 proceeding involving employee discipline made after a hearing pursuant to Civil Service Law §75 is limited to consideration of whether that determination was supported by substantial evidence. The court then explained that "When there is conflicting evidence or different inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists."

Here, said the court, any credibility issues were resolved by the hearing officer and substantial evidence in the record supports the determination that the Petitioner was guilty of the misconduct alleged in certain, but not all, Charges and Specifications, holding that specifications 3 and 4 of Charge II, and  a portion of specification 6 of Supplemental Charge VII cannot be sustained.

As the appointing authority had imposed a penalty of termination of Petitioner's employment in consideration of "all of the specifications for which he was found guilty, and [the Appellate Division had dismissed] three of those specifications," the court, citing Aronsky v Board of Educ., Community School Dist. No. 22 of City of N.Y., 75 NY2d 997, vacated the penalty of dismissal imposed on Petitioner and remitted the matter to the appointing authority "to consider the appropriate penalty to be imposed upon the remainder of the charges and specifications for which he was found guilty, and the imposition of that penalty thereafter."

The decision is posted on the Internet at:
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A Reasonable Disciplinary Penalty Under the Circumstances
Determining an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence.
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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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