Disciplining an employee for off-duty misconduct

Disciplining an employee for off-duty misconduct
Anderson v Safir, App. Div., 260 AD2d 179

The Commissioner of Police found that Michael Anderson and some other New York City police officers were guilty of off-duty misconduct when they “wrongfully placed civilians in fear of imminent physical injury by displaying their guns and using racial epithets.”

The Appellate Division sustained the Commissioner’s dismissing the officers, commenting that the finding of their guilt was supported by substantial evidence, including, in particular, that the officers car pool together and that one of them owned the car described with specificity to the 911 operator at the time of the incident.

Finding that there was no basis to disturb Commissioner’s findings regarding credibility concerning the complainants’ identification testimony, the court confirmed the penalty imposed -- termination.
NYPPL

Failing to participate in a counseling program results in disciplinary action

Failing to participate in a counseling program results in disciplinary action
Siciliano v Safir, 259 AD2d 366

New York City police officer Matthew Siciliano was dismissed from his position after he refused to enter the department’s counseling program. Siciliano had been given at least four direct orders to do so within six months.

Siciliano claimed that his refusal to participate in the program (1) “was based upon his good faith reliance on his private psychiatrist’s advice that such would be harmful to his mental health,” and (2) that the Department had never explicitly warned him that he faced termination if he continued to disobey such orders.

The hearing officer concluded that Siciliano’s “proof concerning his precarious mental condition” tended to support rather than undermine his unfitness to serve. Further, the hearing officer noted, Siciliano was suspended after each time he disobeyed the order to participate in counseling, and “that should have made it clear to petitioner that continued disobedience would not be tolerated indefinitely.”

The Appellate Division said that Siciliano was found guilty of charges that “are serious, involving Department’s requirements for order, authority and discipline. It ruled that the Department’s determination to dismiss Siciliano is entitled to “great leeway.”

Commenting that the penalty imposed did not shock its sense of fairness, the Appellate Division dismissed Siciliano’s appeal.
NYPPL

Terminating an educator during his or her probationary period

Terminating an educator during his or her probationary period
Green v Bd. of Ed., 262 AD2d 411

The Green decision succinctly sets out the basic guidelines used by courts in determining if an educator was lawfully terminated if he or she was dismissed during, or at the end of, his or her probationary period without being given a statement of the reasons for the termination or an administrative hearing.

Verna Green, a New York City School District probationary teacher, was dismissed by the Board of Education during probation.

The Appellate Division, affirming a lower court’s dismissal of Green’s Article 78 action seeking reinstatement, said:

1. A probationary employee may be terminated without a statement of any reasons for the termination or per-termination hearing provided the termination (1) was not made in bad faith, (2) did not constitute a violation of statutory or decisional law, or (3) was not based on any unconstitutional or illegal reasons;

2. The former probationary employee has the burden of establishing that his or her termination was made in bad faith or for illegal reasons;

3. The former probationer’s conclusory allegations that the employer acted in bad faith do not meet this burden or warrant a hearing.

In another probationary termination case, Williams v Franklin Square Union Free School District, 261 A.D.2d 628, the Appellate Division dismissed an Article 78 action brought by Jeanne M. Williams. Williams had asked the court to order the district to “restore [her] to her position as an elementary [school] teacher.”

The court dismissed her petition, stating that there was no evidence in the record that the district’s denying Williams tenure was for a legally impermissible reason. In addition, the Appellate Division held that “there is no evidence that [Williams] acquired tenure by estoppel.”
NYPPL