Penalties imposed on police officers founds guilty of charges alleging wrongful arrest

Penalties imposed on police officers founds guilty of charges alleging wrongful arrest

Police Department v Popovic, NYC Office of Admin. Trials and Hearings, OATH Index No. 544/00

Administrative disciplinary charges may be filed against a police officer alleging that he or she made an arrest in bad faith. The Popovic decision lists some of the penalties recommended by New York City’s Office of Administrative Trials and Hearings where a police officer is found guilty of such charges.

Penalties for bad faith or retaliatory arrests range from 10 to 30 days, depending upon the degree of infringement of the civilian’s rights. Some examples follow:

1. Loss of 25 vacation days for bad faith arrest in retaliation for complainant’s vulgar retorts to the officers’ provocative behavior;

2. 30 days’ suspension and disciplinary probation for bad faith arrest and strip-search of a civilian;

3. Loss of 10 vacation days for bad faith arrest in retaliation for past incident of arrogance to officers and displaying a falsified license;

4. Loss of 15 vacation days for bad faith arrest following argument about a police report;

5. Loss of 13 vacation days for bad faith arrest after civilian attempted to record the police officer’s badge number.
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A school board member seeking the removal of another member must demonstrate willful misconduct or neglect of duty of the part of the member

A school board member seeking the removal of another member must demonstrate willful misconduct or neglect of duty of the part of the member

Matter of Powell and Elliott, Decisions of the Commissioner of Education, Decision 16,216

Willa Powell, a member of the Board of Education of the Rochester City School District asked the Commissioner to remove another member of the board, Cynthia Elliott, alleging that Elliott had “willful and substantive disclosure of confidential information” acquired in the course of her official duties to a newspaper.

The Commissioner denied Powell’s application.

The Commissioner explained that a member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education.

To be considered willful, the actions of the individual must have been intentional and with a wrongful purpose.

Here, said the Commissioner, Powell had not met her burden of proving that Elliott had engaged in behavior constituting a willful violation or neglect of duty requiring her removal from office to his satisfaction. As to the evidence advanced by Powell, the Commissioner ruled that the fact that the draft report released to the media “contains a code linked back to the copy intended for [Elliott], does not in itself prove that [Elliott] released it, much less that she intentionally released it.”

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume50/d16216.htm

The party alleging that an individual has changed his domicile has the burden of proving such a change of the individual’s “permanent place of abode”

The party alleging that an individual has changed his domicile has the burden of proving such a change of the individual’s “permanent place of abode”
Matter of Gigliotti v Bianco, 2011 NY Slip Op 02206, Appellate Division, Fourth Department

The City of Niagara Falls School District terminated the employment of Vincent F. Gigliotti on the grounds that he failed to comply with the District's residency policy, which requires District employees to be domiciliaries of the City of Niagara Falls. Supreme Court properly granted the petition.

It is well established that "domicile means living in [a] locality with intent to make it a fixed and permanent home." As the Court of Appeals said in Matter of Newcomb, 192 NY 238, "For a change to a new domicile to be effected, there must be a union of residence in fact and an absolute and fixed intention to abandon the former and make the new locality a fixed and permanent home."

An individual may have but one domicile at time, i.e., his or her permanent place of abode, which continues until he or she has acquired a new one and any party alleging a change in an individual’s domicile “has the burden to prove the change by clear and convincing evidence."

In contrast, an individual may have multiple places of residence simultaneously, i.e., two or more residences in the same or at different geographical locations in which he or she may, from time to time, live, but only one such residence is his or her domicile.

According to the decision, the Gigliotti, a lifelong resident of Niagara Falls, divorced and while he was temporarily laid off from his position, remarried. Gigliotti and his wife, who owned a home in Ransomville New York, agreed that Gigliotti would continue to live in Niagara Falls with his ailing mother while his spouse would continue to live in her home in Ransomville.

The evidence considered by the Appellate Division in determining Gigliotti’s domicile included Gigliotti’s listing his Niagara Falls address on his federal income tax return forms, his New York State driver's license, his marriage certificate, and his bank and credit statements. In addition, the court noted that Gigliotti’s personal belonging remained at his residence in Niagara Falls, “although he keeps a set of golf clubs and some clothing at his wife's residence in Ransomville.”

The Appellate Division, after considering the evidence, determined that the District’s conclusion that Gigliotti had changed his domicile from Niagara Falls to Ransomville was arbitrary and capricious.

Significantly, the court commented that although the District did not conduct a hearing before terminating Gigliotti’s employment, such a hearing was not "required by statute or law," citing Colton v Berman, 21 NY2d 322 Assuming that the District had provided Gigliotti with an opportunity to show that he or she satisfied the District’s requirement regarding domicile, the problem here was that the court disagreed with the District’s conclusion that Gigliotti was not domiciled in Niagara Falls.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02206.htm
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