December 17, 2020

Prohibiting employees from associating with persons reasonably believed to be engaged in criminal activities

§2.c of the New York City Police Department's General Regulations Procedure 203-10, Public Contact – Prohibited Conduct, bars an individual subject to its provisions from knowingly associating with any person or organization "Reasonably believed to been engaged in, likely to engage in, or to have engaged in criminal activities."

The New York City Police Department [NYCPD] terminated a NYCPD employee [Petitioner] after a Hearing Officer found that the Petitioner was guilty of associating with an individual "who he should have reasonably believed was involved in criminal activity." Petitioner commenced a CPLR Article 78 action challenging his dismissal from the Department.

The Appellate Division sustained NYCPD's action, finding that the determination that Petitioner was guilty of association with an individual who he should have reasonably believed was involved in criminal activity and in failing to report corruption was supported by substantial evidence.

The court also rejected Petitioner's contention that the Hearing Officer incorrectly considered admissions made in the course of his Internal Affairs Bureau [IAB] interview beyond those that were included in exhibit introduced at the hearing as "unavailing," noting that the Hearing Officer specifically stated that he intended to consider all the portions of the IAB transcript "that amounted to admissions and the limited context necessary to understand" Petitioner's testimony.

The Appellate Division unanimously confirmed NYCPD's action and dismissed Petitioner's appeal, opining that "[t]he penalty of termination does not shock one's sense of fairness."

Other decisions involving administrative disciplinary charges served on police officer alleged to have associated with persons thought to have been engaged in criminal activities include Brinson v Safir, 255 AD2d 247, leave to appeal denied 93 NY2d 805; Richardson v Safir, 258 AD2d 328; Delgado v Kerik, 294 A.D.2d 227 and Hastings v City of Sherrill, 90 AD3 1586.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_07483.htm

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