A New York City police officer [Petitioner] was found guilty of four of the five disciplinary charges filed against him by the New York City Police Department [Employer] which included allegations that Petitioner [1] "engaged in a physical altercation with his estranged wife; [2] "failed to request permission before leaving his residence while on sick report, and [3] "violated a protective order on multiple occasions."
Terminated from his position, Petitioner appealed, claiming violations of his right to due process.
The Appellate Division held that Petitioner's claims were "unavailing", finding that Petitioner received advance notice of the charges, was provided a full evidentiary hearing, and he was represented by counsel at the hearing.
The court said contrary to Petitioner's arguments, Employer appears "to have submitted the administrative record, including a certified transcript of the hearing," in its answer. Further, the Appellate Division opined, "Petitioner's contentions regarding his sealed arrest records are unavailing as the administrative decision reflects that the Hearing Officer based his conclusions on the witnesses' testimony and exhibits entered into evidence by stipulation of the parties".
The Appellate Division unanimously confirmed the Employer's terminating Petitioner from his position pointing out that substantial evidence supported the Employer finding that Petitioner was guilty of four of the five charges served upon him.
Noting that the Hearing Officer was entitled to credit the testimony of Petitioner's estranged wife that Petitioner "failed to identify himself as a uniformed member of the service during a ... domestic incident" over the Petitioner's testimony concerning the event as Petitioner's testimony was inconsistent with the responding police officer's body camera footage and the responding police officer's testimony that Petitioner did not so identify himself.
As to the penalty imposed, dismissal from his employment with the New York City police department, the Appellate Division opined that "the penalty of dismissal is not disproportionate to the seriousness of the multiple violations involved", citing Matter of Kelly v Safir, 96 NY2d 32.
Click HERE to access the opinion of the Appellate Division posted on the Internet.
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A Reasonable Disciplinary Penalty Under the Circumstances - an e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service of the State of New York and its political subdivisions in instances where the employee has been found guilty of misconduct or incompetence. For more information and access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/7401.html