Article V, §6 of New York State
The Petitioner [Officer] was employed as a police officer in a police department [Department] and passed the examination for promotion to Sergeant. He was subsequently promoted to Sergeant, subject to Officer's satisfactory completion of a six-month probationary period. Prior to the end of his probationary period Officer received written notice that he was to be reinstated to his former rank of police officer because he had failed to satisfactorily complete his probationary period.
Officer brought a CPLR Article 78 challenging the Department's decision to reinstate him to his former rank alleging that the Department's action [1] was arbitrary and capricious, [2] made in bad faith and [3] made without the Department complying with its own procedures in evaluating him during the probationary period. Supreme Court, following a hearing, denied the Officer's petition and dismissed the proceeding. Officer appealed.
Officer brought a CPLR Article 78 challenging the Department's decision to reinstate him to his former rank alleging that the Department's action [1] was arbitrary and capricious, [2] made in bad faith and [3] made without the Department complying with its own procedures in evaluating him during the probationary period. Supreme Court, following a hearing, denied the Officer's petition and dismissed the proceeding. Officer appealed.
The Appellate Division, citing Matter of Messenger v State of New York Dept. of Corr. & Community Supervision, 151 AD3d 1433, affirmed the Supreme Court's ruling, explaining that "An employee's probationary appointment may be terminated . . . for any reason, or no reason at all, so long as the termination was not in bad faith or for an improper or impermissible reason." Further, said the court, Officer bears a heavy burden of proof in demonstrating that challenged administrative action was made in bad faith, or for an improper or impermissible reason, "for which conclusory allegations and speculative assertions will not suffice." Further, noted the court, "[Appointing] authorities generally have wide discretion in determining the fitness of candidates for the appointment to a civil service title, and this discretion is particularly broad in appointment of law enforcement officers, to whom high standards may be applied."
The Appellate Division opined that Officer's submissions and the testimony at the hearing failed to demonstrate that the Department's decision with respect to his failure to satisfactorily complete his probationary period upon his promotion to Sergeant was made in bad faith, or that it was based on an improper or impermissible motive as the evidence and testimony adduced by the Department established that its decision to terminate the Officer's probationary appointment to the rank of sergeant was made in good faith. Further, said the court, Officer failed to demonstrate that the factors relied upon by the Department in reaching its determination were merely pretextual.
Addressing Officer's contention that the Department acted in bad faith for allegedly failing to adhere to its own procedures concerning probationary evaluations, the Appellate Divisions said that the Department complied with its practice that a probationer shall receive an "interim" and "final" performance evaluation. In addition the court noted that assuming that the Department was obligated to evaluate probationary employees "every two months," as asserted by the Officer, the record shows that precinct supervisors met with the Officer on multiple occasions during his probationary period to discuss behavior and incidents that were later determined by the appointing authority to reflect poorly on the Officer's judgment and performance, or which violated the Department's rules.
The Appellate Division concluded that the Department's efforts to alert the Officer to behavior and performance issues it deemed unsatisfactory demonstrated substantial compliance with its own internal procedures, and moreover, complied with its general obligation to adequately advise the [Officer] of his status and progress during the probationary term.
Finding that the Officer failed to demonstrate that the Department's decision to reinstate him to his former rank was made in bad faith, or was based on an improper or impermissible motive, the Appellate Division said it agreed with the Supreme Court's determination to deny the petition and dismiss the proceeding.
* There are certain exceptions to this requirement. For example, an individual reinstated to a vacancy from a preferred list is not required to serve a probationary period upon such appointment unless the individual's name was placed on the preferred list prior to the completion of his then probationary term whereupon the probationer is required to satisfactorily complete his probationary term upon reinstatement.
** In York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.” Should an appointing authority wish to terminate a probationer prior to the end of the probationer's minimum probationary period, the probationer must be accorded administrative due process, which typically requires "notice and hearing."
** In York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.” Should an appointing authority wish to terminate a probationer prior to the end of the probationer's minimum probationary period, the probationer must be accorded administrative due process, which typically requires "notice and hearing."
The decision is posted on the Internet at: