Citing Matter of Verma v Department of Educ. of the City of N.Y., 192 AD3d 616, the Appellate Division observed that "a probationary employee may be terminated without a hearing for any reason or no reason at all, as long as the dismissal was not unlawful or in bad faith."*
In this action the Appellate Division opined that this standard applies where, as here, a police officer has been placed "on dismissal probation in accordance with a negotiated resolution of disciplinary charges", citing Matter of Cipolla v Kelly, 26 AD3d 171.
Noting that the Petitioner in this action failed to demonstrate bad faith because [1] the record contains uncontroverted evidence of Petitioner's admitted misconduct, which resulted in his being put on dismissal probation and [2] new disciplinary charges that were brought during his disciplinary probationary period.
In the words of the court, [1] the fact hat some of the new charges concerned alleged misconduct predating the period of dismissal probation is of no moment and [2] the fact that Petitioner's application for disability retirement, which he submitted before pleading guilty to the initial disciplinary charges, was later recommended for approval, "does not demonstrate his termination was in bad faith."
As to issue of the appropriateness of the penalty under the circumstances, the court concluded even assuming that the "shock the conscience" standard applies to probationary terminations, "the termination here does not shock the conscience."
Addressing Petitioner's argument that equitable estoppel barred his termination, the Appellate Division disagreed, ruling "equitable estoppel does not apply here, as the negotiated settlement placed him on notice that he could be dismissed at any time during the probationary period."
Accordingly, the court unanimously affirmed Supreme Court's granting the appointing authority's summarily terminating Petitioner from the police force during his dismissal probation period, without costs.
* 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.”
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