Conducting a disciplinary hearing after the employee has resigned from the position

Despite evidence supporting allegations of sexual misconduct involving students, a public employer in another state "determined that it could not make a decision" about the employee's culpability because [1] the employee's refused to participate in its investigation of the allegations and [2] the employee already submitted his resignation from his former position.

In New York State 4 NYCCR 5.3, Resignation, may be relevant in the event the appointing authority is faced with such a situation.

Applicable to employees in the Classified Service employed by the State of New York as the employer, 4 NYCCR 5.3, in pertinent part, provides that in the event an employee submits a resignation "when charges of incompetency or misconduct have been or are about to be filed against an employee," the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and specification as provided by law or the terms of the controlling collective bargaining agreement.*

In the event that the individual is found guilty of such charges and the penalty imposed is termination from the service, his termination would be recorded as a dismissal rather than as a resignation.

Should the individual refuse to participate in the investigation and, or, a disciplinary hearing, the appointing officer may elect to conduct the individual's disciplinary hearing "in absentia".

New York courts have held that the disciplinary hearing may proceed and the employee tried in absentia provided, however, the appointing authority has complied with a number of procedural steps, including the following:

1. The appointing authority must properly serve the employee with the disciplinary charges and advise him or her, among other things, of the date, time and place of the hearing;

2. That a diligent effort was made to contact the individual to determine if he or she has a reasonable explanation for his or her absence before the hearing officer proceeds with holding the hearing in the absence of the accused employee;

3. A formal hearing must be conducted and the appointing authority is required to introduce evidence proving its charges to the hearing officer;

4. A formal record of the hearing must be made and a transcript provided to the appointing authority and, if requested, to the employee; and

5. The employee must be advised of the appointing authority’s determination and of the employee's right of appeal if he or she has been found guilty of one or more of the charges.

As the Appellate Division held in Mujtaba v NYS Dept. of Education, 148 A.D.2d 819; 107 A.D.3d 1066, “due process does not require that [the charged individual] be present at an administrative hearing, but rather requires notice of the charges and an opportunity to be heard.” What also is required, however, is that the appointing authority made a diligent effort to contact the employee to inform him or her that the disciplinary hearing had been scheduled and would take place even if the individual fails to appear and participate.**

Click HERE to access a New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge's decision that involved conducting a disciplinary hearing in absentia.

* Many Local Civil Service Commissions and Civil Service Law §15 Personnel Officers have adopted rules or regulations similar to those set out in 4 NYCCR 5.3 applicable to employees in the Classified Service in their respective jurisdictions.

** Mari v Safir, 291 AD2d 298, sets out the general standards applied by the courts in resolving litigation flowing from the appointing authority conducting a disciplinary hearing in absentia.

Audits and reports issued by the New York State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued on April 5, 2021.

Click on the text highlighted in color to access the complete audit report.

MUNICIPAL AUDITS

 Albany Water Board – Software Management (Albany County)

Auditors found software installed on Albany Water Board computers and mobile devices is not always appropriate and necessary. Auditors found unnecessary software on 60 computers (97 percent) and six mobile devices (32 percent) including gaming, streaming and shopping software. Officials did not establish controls to prevent computer and mobile device users from downloading applications from application stores.

 

Town of Greenwich – Purchasing (Washington County)

Town officials generally did not seek competition when purchasing goods and services. Of 50 purchases reviewed totaling $154,386 that required competitive quotes, 28 purchases totaling $81,857 lacked evidence of competition as required by the town’s purchasing policy.  Diesel fuel aggregate purchases totaling $35,474 were not competitively bid as required by law.

 

Masonville Fire District – Financial Activities (Delaware County)

Auditors found the board did not provide adequate financial operations oversight. The board did not review supporting documentation for nine disbursements totaling $57,374. They did not approve 12 disbursements totaling $75,880 before payment nor did they audit the treasurer’s records. The board also did not ensure sensitive and personal electronic data was adequately protected because the treasurer used her personal computer to maintain district financial records and perform online banking transactions.

 

Middletown No. 1 Fire District – Annual Financial Reports (Delaware County) The treasurer did not file required annual financial reports with the Office of the State Comptroller for fiscal years 2015-2019 in compliance with General Municipal Law. District officials were not aware that these reports needed to be submitted. 

 

 SCHOOL DISTRICT AUDITS 

 

Briarcliff Manor Union Free School District (Westchester County) Auditors found district officials generally used a competitive process to procure goods and services. However, they did not always seek competition for professional services.

 

Cherry Valley – Springfield Central School District – Financial Condition (Montgomery County and Otsego County) Officials effectively managed most aspects of the school district’s financial condition. However, they have not utilized their multiyear financial plans to help make financial decisions. Officials also have not adopted fund balance and reserve policies.

 

Hamilton Central School District – Procurement (Madison County) District officials did not always seek competition for the purchase of goods and services not subject to competitive bidding, as required by the district’s procurement policy. Officials did not seek competition for the services procured from five professional service providers totaling $658,164. In addition, officials did not obtain verbal and written quotes for the purchase of goods and services from 14 vendors totaling $126,907.

 

OTHER REPORTS

 

State Comptroller DiNapoli Statement on Impact of a Late State Budget - "The economic effects of the pandemic on the state’s finances are widespread and some sectors of our economy may take years to recover. The state Legislature and Governor are in the process of finalizing a new state budget. Many New Yorkers are hurting, and it is important that a final agreement is reached quickly."

State Contract and Payment Actions in February - In February, 2021, the Office of the State Comptroller (OSC) approved 1,407 contracts for state agencies and public authorities valued at $109 billion and approved more than 20.3 million payments worth nearly $14 billion. OSC rejected 110 contracts and related transactions valued at $100 million and more than 8,000 payments valued at nearly $18.2 million, primarily for mistakes, insufficient support for charges, and improper payments. More information on these contracts and payments is available at www.openbooknewyork.com. 

 

Recent postings on Kevin Sheerin's Law Blog "New York Civil Service Attorney"

Denial of Correction Officer’s Performance of Duty Retirement Benefits Annulled Due to Factual Errors - Matter of Paul Mazzotte v Thomas DiNapoli, as State Comptroller Petitioner was a correction officer for over 20 years. In 2001, he applied for performance of duty disability retirement benefits alleging he was permanently disabled by coronary artery disease (CAD) after having coronary artery bypass surgery. According to petitioner, the disease was caused by the...click to  Continue Reading…

Correction Officer Receives 60 Days Suspension for Excessive Use of Force -
In the Matter of Department of Correction v Stanley Saint-Phard… In this disciplinary proceeding, pursuant to Article 75 of the Civil Service Law, Respondent, a Correction Officer, allegedly used impermissible force against an inmate by dispersing a chemical agent in the inmate’s face and also placed the inmate in a chokehold. On October 16, 2008,...click to Continue Reading…

NYPD Disqualification for Loud Exhaust or Tinted Windows-
Sometimes younger people (often men), accumulate summonses or moving violations for “loud exhaust” or “tinted windows”. These violations accumulate over time and may grow to 5, 10, 15 or even 20 summonses. As the years pass these young people look to get a job with the NYPD or another law enforcement agency. After the application...click to Continue Reading…

Off-Duty NYPD Detectives Use of Force found Not Actionable
"Use of force", NYPD, deadly force, Firearms dischargeclick to Continue Reading…

Disqualification for High Blood Pressure Overturned -
A Nassau County Police Officer candidate failed to meet the Municipal Police Training Council standard for blood pressure and was disqualified in August 2013.  The candidate suffered from “White Coats Syndrome” which is an elevated blood pressure in a clinical setting.  The candidate had no history of hypertension with his primary physician.  TheNassauCounty...click to Continue Reading…

 

Recent General Information Bulletins published by the New York State Department of Civil Service

New York State Department of Civil Service recently published the following General Information Bulletins:

GIB 21-01, Enactment of the Restoration of Honor Act

GIB 21-02, Revision to the Statewide Employment Application

GIB 21-03, Reasonable Accommodation Appeals Review Committee

 

For those wishing to print these General Information Bulletins, below are links to versions in PDF format:

https://www.cs.ny.gov/ssd/pdf/GIB21-01.pdf

https://www.cs.ny.gov/ssd/pdf/GIB21-02.pdf

https://www.cs.ny.gov/ssd/pdf/GIB21-03.pdf

 

To view previous General Information Bulletins issued by the Department of Civil Service, visit: https://www.cs.ny.gov/ssd/gibs.cfm.

Staffing announcements by the New York State Workers' Compensation Board

On April 2, 2021, the New York State Workers' Compensation Board announced the following staffing changes:

Former General Counsel David Wertheim has been named Acting Executive Director of the NYS Workers’ Compensation Board, following the departure of Mary Beth Woods, who was appointed Acting Executive Director and CEO of the NYS Insurance Fund.

Former Deputy General Counsel Heather MacMaster has been named Acting General Counsel in the transition that became effective on March 23.

Mr. Wertheim and Ms. MacMaster have both served the Board for more than two decades and look forward to continuing the work already underway to create a system that’s better for workers and better for business.

 

New York State Comptroller finds eight villages and three cities in fiscal stress for the fiscal year ending in 2020

Noting that federal and state financial support is crucial for local governments, Comptroller DiNapoli’s office evaluated the fiscal health of 523 villages, which predominantly have a fiscal year ending on May 31, based on self-reported data. The scores also cover the 17 cities in New York with non-calendar fiscal years, including the “Big 4” cities of Buffalo, Rochester, Syracuse and Yonkers, each of which have fiscal years ending on June 30.*

State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System has identified eight villages and three cities in New York that were in some level of fiscal stress in 2020, based on scores that largely reflect the time period before the COVID-19 pandemic. DiNapoli evaluated all non-calendar year local governments and designated three cities and three villages in “significant fiscal stress,” one village in “moderate fiscal stress” and four villages as “susceptible to fiscal stress.”

The latest round of fiscal scores evaluated local governments with fiscal years ending between Feb. 28 and July 31. DiNapoli’s office evaluated the fiscal health of 523 villages, which predominantly have a fiscal year ending on May 31, based on self-reported data. The scores also cover the 17 cities in New York with non-calendar fiscal years, including the “Big 4” cities of Buffalo, Rochester, Syracuse and Yonkers, each of which have fiscal years ending on June 30.

For the fiscal years ending 2020, the three cities in “significant fiscal stress” include Amsterdam (Montgomery County), Long Beach (Nassau County) and Yonkers (Westchester County).

The three villages in “significant fiscal stress” are Island Park (Nassau), Valley Stream (Nassau) and Wappingers Falls (Dutchess).

The village of Fayetteville (Onondaga) is designated as being in “moderate fiscal stress” and the villages of Addison (Steuben); Millbrook (Dutchess); Oriskany (Oneida); and South Dayton (Cattaraugus) are designated as being “susceptible to fiscal stress.".

The system, which has been in place since 2012, assesses levels of fiscal stress in local governments using financial indicators including year-end fund balance, cash position, short-term cash-flow borrowing and patterns of operating deficits. It generates overall fiscal stress scores, which ultimately drive final classifications. The system also analyzes separate environmental indicators to help provide insight into the health of local economies and other challenges that might affect a local government’s or school district’s finances. This information includes population trends, poverty and unemployment.

Click on text in color to access the material described.

DiNapoli’s office has a self-assessment toolthat allows local officials to calculate fiscal stress scores based on current and future financial assumptions. Officials can use this tool to assist in budget planning, which will continue to be especially important in light of the ongoing pandemic and the related revenue and expenditure fluctuations.

In January, DiNapoli released fiscal stress scores for school districts which found 31 school districts statewide were designated in fiscal stress. In September, DiNapoli’s office will release scores for municipalities with a calendar-year fiscal year, which includes all counties, towns, the majority of cities and a few villages.

List of villages and cities in fiscal stress - Municipalities in Stress Fiscal Year Ending 2020

Complete list of fiscal stress scores - Lists

FSMS Search Tool - Fiscal Stress Monitoring System Search Tool

COVID-19 Toolkit - COVID-19 Financial Toolkit for New Yorkers

* The latest round of fiscal scores evaluated local governments with fiscal years ending between Feb. 28 and July 31.

 

Endpoint Security: Are Your Printers Easy Prey? -- A Government Technology Webinar

If you missed this Government Technology Webinar entitled "Endpoint Security: Are Your Printers Easy Prey? and would like to view the recorded session click HEREto access the presentation.

For questions, or more information, contact Erica Lindley at Government Technology,
800-940-6039, Ext. 1375.

 

Judicial review of an administrative body's findings after a hearing of alleged violations of SUNY's Student Code of Conduct

SUNY Campus Appeals Board's finding that a student violated the Student Code of Conduct by engaging in certain sexual activities vacated by Appellate Division as not supported by substantial evidence and all references to the Board's findings were ordered to be expunged from the student's academic record. 

Click HERE to access the Appellate Division's decision.

 

Requiring fluency in a particular language other than English for appointment to a position in the public service

In this CPLR Article 78 action the petitioner [Plaintiff] challenged the New York State Department of Civil Service created a new position in the State Department of Corrections and Community Services* [DOCCS] Correction Sergeant (Spanish Language) at DOCCS' request. The duties of this title were identical in all aspects to those required in the established position of Correction Sergeant, with the additional requirement that applicants for the new position be fluent in Spanish.

Ultimately two separate promotion eligibility lists were established, one for Correction Sergeant and the other for Correction Sergeant (Spanish Language).

Plaintiffs in the action allege that the creation of this new position was arbitrary, capricious and unlawful, that it violated their state and federal constitutional equal protection and due process rights and that DOCCS violated Article V, §6, the Merit and Fitness Clause, of the New York State's Constitution. Additionally, petitioners sought certification to proceed as a class action. DOCCS moved to dismiss the action, asserting objections in point of law. Supreme Court dismissed Plaintiffs' petition and Plaintiffs appealed.

The Appellate Division, citing Cove v Sise, 71 NY2d 910, observed "Administrative determinations concerning position classifications are of course subject to only limited judicial review, and will not be disturbed in the absence of a showing that they are wholly arbitrary or without any rational basis" and rejected Plaintiffs' argument that DOCCS failed to present evidence of the need for this new position classification.

As to Plaintiff's contention that the establishment of positions of Correction Sergeant (Spanish Language) violated Article V, §6 of Constitution, the court noted that two eligible lists were established, one for Correction Sergeant and a separate list Correction Sergeant (Spanish Language). The court observed that it might be troublesome were there but one list of eligibles established for appointment to the Correction Sergeant and to the Correction Sergeant (Spanish Language) titles, here there were two eligible lists established and both lists the lists remain separate and distinct.

Addressing Plaintiffs' argument that their due process rights under the United States and New York State Constitutions as their property interests in promotion were adversely  affected as the result of the establishment of the two titles by the Department of Civil Service at DOCCS' request, the Appellate Division, citing Matter of Andriola v Ortiz, 82 NY2d 320, explained "a person successfully passing a competitive [c]ivil [s]ervice examination does not acquire any legally protectable interest in an appointment to the position for which the examination was given, nor thereby gain a vested right to appointment to the position" and thus Plaintiffs' "contention is meritless."

Petitioners also advance the argument that "respondents violated their equal protection rights by conferring greater benefits on less qualified candidates who are proficient in speaking Spanish." Noting that for equal protection purposes, the appropriate standard for judicial review of a regulation is that it be sustained unless it bears no rational relation to a legitimate government interest, the Appellate Division said that the basis of the classification was proficiency in speaking Spanish, "which was required to effectively communicate with the Spanish-speaking inmate population and aid in the efficient and safe operations of DOCCS's facilities." Agreeing with the Supreme Court that the "differential treatment of Spanish-speaking and non-Spanish speaking employees was rationally related to a legitimate government interest," the Appellate Division held that the respondents "did not violate [the Plaintiffs'] equal protection rights under the NY or US Constitution."

*Although this is how DOCCS was named in the petition, the Appellate Division noted that DOCCS's correct name is Department of Corrections and Community Supervision.

Click HERE to access the text of the Appellate Division's decision.

 

Public policy in New York State favors arbitral resolution of public sector labor disputes

In Matter of County of Nassau v Detectives Assn., Inc. of the Police Dept. of Nassau County,188 AD3d 1049, the Appellate Division rejected Nassau County's petition to permanently stay arbitration of  contract grievance and granted the Union's motion to compel arbitration of the grievance. The grievance alleging that employees in the collective bargaining unit represented by the Detectives Association were not receiving longevity payments in accordance with "a memorandum of agreement"  between the parties.   

Nassau County had contended that the disputed memorandum of agreement between the County and the Association was invalid and unenforceable.

The Appellate Division disagreed, holding:

1. The County had not identified any constitutional, statutory, or public policy prohibition to arbitrating this grievance, citing Matter of Board of Educ. of the Yonkers CitySch. Dist. v YonkersFedn. of Teachers, 180 AD3d at 1042);

2. The issue was whether the County and the Association agreed to arbitrate this dispute; and

3. The arbitration provision of the relevant collective bargaining agreement was broad, and "there is a reasonable relationship between the subject matter of the dispute," which involved longevity payments, and the general subject matter of the collective bargaining agreement.

The full text of Detectives Association, set out below, has been cited in the decisions listed below involving similar grievances, to the same effect.

1. County of Nassau v Civil Service Employees Association, decision posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2021/2021_01748.htm;

2. County of Nassau v Nassau County Sheriff's Correction Officers Benevolent Association, Inc., et al., decision posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2021/2021_01749.htm;

3. County of Nassau v Superior Officers Association of the Police Department of the County of Nassau, Inc., et al., decision posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2021/2021_01750.htm;

4. In the Matter of County of Nassau v Civil Service Employees Association, etc., decision posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2021/2021_01766.htm;

5. County of Nassau v Superior Officers Association of the Police Department of the County of Nassau, Inc., et al., decision posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2021/2021_01750.htm;

6. In the Matter of County of Nassau v Nassau County Sheriff's Correction Officers Benevolent Association, Inc., decision posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2021/2021_01767.htm; and

7. In the Matter of County of Nassau v Superior Officers Association of the Police Department of the County of Nassau, Inc., decision posted on the Internet at
http://www.nycourts.gov/reporter/3dseries/2021/2021_01768.htm;

 

In the Matter of County of Nassau, Appellant, v Detectives Association, Inc. of the Police Department of Nassau County, Respondent.

Bee Ready Fishbein Hatter & Donovan, LLP, Mineola, NY(Peter A. Bee, William C. DeWitt, and Jason Greenfield of counsel), for appellant.

Steven E. Losquadro, P.C., Rocky Point, NY(John Ciampoli of counsel), for respondent.

"In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of the respondent's grievance arising from a memorandum of agreement dated September 15, 2017, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered March 12, 2019. The order and judgment denied the petition to permanently stay arbitration and granted the respondent's motion to compel arbitration.

"Ordered that the order and judgment is affirmed, with costs.

"The County of Nassauand the Detectives Association, Inc., of the Police Department of Nassau County (hereinafter the DAI) are parties to a collective bargaining agreement (hereinafter the CBA). In 2018, pursuant to the procedures set forth in the CBA, the DAI submitted a grievance alleging that its members were not receiving longevity payments in accordance with a memorandum of agreement dated September 15, 2017 (hereinafter the MOA). By verified petition, the County commenced the instant proceeding pursuant to CPLR article 75 to permanently stay arbitration. The DAI moved to dismiss the petition and to compel the County to submit to arbitration. The Supreme Court denied the petition and granted the DAI's motion to compel arbitration. The County appeals. We affirm.

"[A] party who has not participated in the arbitration and who has not made or been served with an application to compel arbitration, may apply to stay arbitration on the ground that a valid agreement was not made or has not been complied with" (CPLR 7503 [b]). "The 'valid agreement' referred to in CPLR 7503 concerns a valid agreement to arbitrate" (Matter of Prinze [Jonas]. . , 38 NY2d 570, 577 [1976]). "Thus even when it is alleged . that the contract itself is invalid in its entirety, the court's role is still confined to determining the validity of the arbitration clause alone" (id.at 577). "If the arbitration agreement is valid, any controversy as to the validity of the contract as a whole passes to the arbitrators" (id.).

"Public policy in New York favors arbitral resolution of public sector labor disputes" (Matter of Board of Educ. of the Yonkers City Sch. Dist. v Yonkers Fedn. of Teachers, 180 AD3d 1041, 1042 [2020] [internal quotation marks omitted]). "However, a dispute between a public sector employer and an employee is only arbitrable if it satisfies a two-prong test" (id. at 1042 [internal quotation marks omitted]). "First, the court must determine whether there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance" (id.). "If there is no prohibition against the arbitration, the court must determine whether the parties agreed to arbitrate the particular dispute by examining their collective bargaining agreement" (id. [internal quotation marks omitted]). Where "the relevant arbitration provision of the CBA is . a court should merely determine whether there is a reasonable . broad, . relationship between the subject matter of the dispute and the general subject matter of the CBA" (Matter of City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 176 AD3d 1197, 1199 [2019] [internal quotation marks omitted]). "If there is none, the issue, as a matter of law, is not arbitrable" (id. at 1199 [internal quotation marks omitted]). "If there is, the court should rule the matter arbitrable, and the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the CBA, and whether the subject matter of the dispute fits within them" (id. [internal quotation marks omitted]).

"Here, we agree with the Supreme Court's determination denying the County's petition to permanently stay arbitration and granting the DAI's motion to compel the County to submit to arbitration. The County has not identified any constitutional, statutory, or public policy prohibition to arbitrating this grievance (see Matter of Board of Educ. of the Yonkers CitySch. Dist. v YonkersFedn. of Teachers, 180 AD3d at 1042). Thus, the issue is whether the County and the DAI agreed to arbitrate this dispute (see id.). The arbitration provision of the CBA is broad, and there is a reasonable relationship between the subject matter of the dispute, which involves longevity payments, and the general subject matter of the CBA (see Matter of City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 176 AD3d at 1199). Accordingly, the grievance was arbitrable, and any issues regarding the validity and effect of the MOA were for the arbitrator to determine under the CBA's grievance procedures (see Matter of Prinze [Jonas], 38 NY2d at 577).

"The County's remaining arguments are without merit. Roman, J.P., Duffy, Barros and Connolly, JJ., concur."

 

 

Disciplinary charges brought more than 18 months after the incident held timely upon being shown to constitute a crime

The New York City Police Department [NYPD] terminated a police officer [Plaintiff] found guilty of charges that if proven in court, would constitute assault in the third degree. In addition to termination, Plaintiff's dismissal resulted in the forfeiture of his retirement benefits. Plaintiff appealed, contending that charges and specifications brought against him by the Civilian Complaint Review Board [CCRB] were untimely as "the charges were brought more than 18 months after the incident."

The presiding hearing officer, NYPD's Deputy Commissioner - Trials, ruled that the CCRB was required to show by a preponderance of the credible evidence that the underlying facts, if proven in court, would constitute a crime in order to go forward with the disciplinary action. The Deputy Commissioner then found, "by a preponderance of the credible evidence", that Plaintiff was guilty of assault in the third degree, as charged in the first specification, in that Plaintiff acted recklessly in the course of his attempting to arrest an individual and his recklessness "was a significant factor" which contributed to the individual's death.

The Deputy Commissioner's Report to the Police Commissioner recommended Plaintiff's dismissal from the NYPD and the Commissioner approved the Report and Recommendation and issued a final order dismissing Plaintiff from the NYPD.

Plaintiff then initiated a CPLR Article 78 proceeding seeking a court order annulling the Commissioner's determination and directing his reinstatement. Plaintiff contended that the CCRB failed to present substantial evidence of his guilt and that the penalty of dismissal was shocking to the conscience.

The Appellate Division found that substantial evidence supported the conclusion that Plaintiff had "recklessly caused injury to [the individual] by maintaining a prohibited chokehold for 9 to 10 seconds after exigent circumstances were no longer present, thereby disregarding the risk of injury."

Citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, and other decisions, the Appellate Division said it did not find the penalty imposed on Plaintiff "so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness" and opined that in Matter of Alfieri, 38 NY2d at 977, "[c]onduct far less serious than [Plaintiff's] has been found by the Court of Appeals to have a "destructive impact ... on the confidence which it is so important for the public to have in its police officers".  

Click HEREto access the text of the Appellate Division's decision.

 

Dismissal of an employee before completion of the probationary period

Citing Matter of Childs v Board of Educ. of the City Sch. Dist. of the City of N.Y., 176 AD3d 560, the Appellate Division unanimously affirmed Supreme Court's denial of the Plaintiff's petition seeking a court order annulling his former employer's determination dismissing Plaintiff from his employment as a probationary teacher. The court's decision notes 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".

The court said that the record supported a finding that Plaintiff was terminated in good faith as it was based on Plaintiff's "declining performance evaluations and incidents of disciplinary misconduct" which the employer had documented over a period of several months.

As to Plaintiff's claim that he was terminated in retaliation for his reporting another teacher's alleged misconduct involving a student, the Appellate Division opined that this argument was speculative in light of the evidence in the record of Plaintiff's "deficient work performance and his disciplinary misconduct."

With respect to the termination of an employee before the competition of the appointee's maximum period of probation, in York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule with respect to the dismissal of probationary employees. In York the high court held that "[a]fter 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."

In the event the appointing authority decides to dismiss an employee during the minimum probationary period, the employee is entitled to the notice and hearing that would otherwise be available to a tenure employee. 

Click HEREto access the Appellate Division's decision.