A police officer [Petitioner] grieved disciplinary charges served on him pursuant to the applicable collective bargaining agreement and requested a hearing before an arbitrator.
In lieu of the hearing, the parties agreed to resolve the matter through a consent award under which Petitioner would serve a 120-day suspension without pay and then be "reinstated full time and in good standing, subject to the [P]olice Chief's discretion to direct an alternate assignment." As a condition of the consent award, Petitioner waived his right to a hearing on the charges.
After Petitioner served his suspension, the Police Chief placed Petitioner on an alternative assignment. Subsequently Petitioner resigned from his position, indicating that he had "decided to explore other opportunities in law enforcement in lieu of continuing the current alternative assignment." Police Chief wished Petitioner "success in his future endeavors" and advised department personnel of Petitioner's resignation. In accordance with statutory obligations, the Police Chief subsequently notified the Division of Criminal Justice Services [DCJS] that Petitioner's employment with the police department "had ended by a standard resignation".
The Police Chief subsequently advised DCJS that he had improperly characterized Petitioner's separation from employment as a standard resignation and requested that Petitioner's record be amended to reflect that Petitioner's removal had been "for cause", citing 9 NYCRR 6056.2 (h).
DCJS amended Petitioner's record to reflect that he was removed "for cause" and notified Petitioner that his basic training certification had been permanently invalidated. Petitioner then sought administrative review of DCJS determination, contending that the "for cause" designation was based upon inaccurate information since his resignation from his former employer occurred after the disciplinary matter had been fully resolved and after he had been reinstated on a full-time basis in good standing. Petitioner submitted a copy of the consent award, along with other documentation, in support of such assertion.
DCJS reviewed the matter pursuant to 9 NYCRR 6056.7, which applies when it receives information indicating "a material inaccuracy in an employer's reporting of the reason an officer ceased to serve." During that process, the Police Chief sent a letter which claimed that, during the negotiation of the consent award, "it was determined that [Petitioner] would resign as a [department[officer] ... rather than return to duty under an alternate assignment," representing that Petitioner never returned to work upon the completion of his suspension and instead used accrued leave time until he submitted his resignation.
The Police Chief further explained that he began investigating the decertification process after he received information that Petitioner had applied for employment with another law enforcement agency, claiming that Petitioner had agreed during the negotiation of the consent award that he would not seek employment with that particular law enforcement agency, among others, as a police officer.
Petitioner provided DCJS with copies of his attendance report and pay stubs, which demonstrated that he worked remotely on 10 days, using accrued leave for the remaining days and other relevant records indicating that he had "completed his disciplinary suspension" and was "now on full pay and benefits." Indeed, pay stubs submitted to DCJS during the administrative review process confirm that petitioner was paid by GPD during this period. Plaintiff also provided DCJS with various exhibits from the administrative record, as well as an affidavit in which he alleged that in the course of the negotiations in furtherance of the consent award, he was advised that his certification would remain intact if he proceeded with a consent award rather than a hearing on the charges and then subsequently resigned.
DCJS notified Petitioner that it had completed its review and had concluded that the Police Chief accurately reported Petitioner's separation from employment as a removal for cause. Petitioner then commenced the instant CPLR Article 78 proceeding against the Police Chief and others, [collectively referred to as Respondents] and DCJS, challenging DCJS's administrative determination as arbitrary and capricious.
Upon considering the record, Supreme Court dismissed the petition against the Respondents on the basis that they were improper parties. Supreme Court, finding that DCJS' determination was not arbitrary and capricious insofar as the record demonstrated that Petitioner resigned due to being placed on an alternative assignment, which, the court emphasized, was a disciplinary consequence of the misconduct allegations, otherwise dismissed Plaintiff's petition on the merits. Plaintiff appealed the Supreme Court's decision.
The Appellate Division held that Supreme Court properly dismissed the petition against Plaintiff's former employer as "The primary relief requested by [Petitioner] is annulment of DCJS' determination and reinstatement of his basic training certification. Noting that DCJS is the entity with the authority "to amend [an] inaccuracy" in a police officer's record and is the agency that issued the final and binding determination (see Executive Law § 845 [3] [b]; General Municipal Law § 209-q [1] [b-1]), the Appellate Division said it was "unpersuaded by [Petitioner's] argument" that the Respondents are necessary parties because they "played a substantial role in the injury to [Petitioner] or ... were primarily responsible for" DCJS' determination.
Noting that it recognized that the Police Chief's "for cause" notification to DCJS "immediately" invalidated Petitioner's basic training certification as of that date, DCJS subsequently conducted a merits review of that determination under 9 NYCRR 6056.7, concluding that the Police Chief's "for cause" reporting was correct.
Accordingly, the Appellate Division ruled that it was DCJS, not the Respondents, who made the ultimate administrative determination that caused Petitioner's injury.
That said, the Appellate Division ruled that "under the particular circumstances of this case", it agreed with Plaintiff that DCJS' determination was arbitrary and capricious, explaining that "Where, as here, an administrative determination is made without a hearing, our review "is limited to whether the determination was arbitrary and capricious, lacked a rational basis or was affected by an error of law" and "An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts".
The Appellate Division opined that DCJS' position that Plaintiff's was separated "for cause" from employment within the meaning of 9 NYCRR 6056.2 (h) if accepted, lacks a sound basis in reason, as it would permit a police department to claim that an officer resigned "for cause" any time a resignation was part and parcel to a disciplinary consequence — even if charges had been fully resolved years prior and even if the officer worked for several more years before retiring. Further, if accepted, would also render the consent award effectively meaningless — a troubling prospect given that [Plaintiff] waived his right to a hearing on the misconduct charges in exchange for resolving the matter in a manner that would allow him to be reinstated in good standing, without any provision in the consent award notifying him that his basic training certification could be revoked if he resigned.
The Court remitted the matter to DCJS for further consideration "not inconsistent with this Court's decision."
N.B. In a footnote in its decision, Footnote 4, the Appellate Division pointed out that prior to October 16, 2021, a removal for cause meant, in pertinent part, a "removal for incompetence or misconduct" by virtue of an employee's resignation "while a disciplinary process has commenced ... which may result in removal". In Matter of Kitto v City of Albany, N.Y. Dept. of Police (213 AD3d at 1170), that Court impliedly concluded that, for a resignation to constitute a removal for cause under the prior definition, it must have occurred while misconduct charges were still pending. The Appellate Division said it recognized that the amended definition uses broader language, but concluded that DCJS' determination, on these facts, "is not rational."*
Click HERE to access the Appellate Division's decision posted on the Internet.
* A Reasonable Disciplinary Penalty Under the Circumstances - NYPPL's 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. For more information click on http://booklocker.com/books/7401.html.