Informal Opinions of the Attorney General

Informal Opinions of the Attorney General

Informal Opinion No. 2017-1  [December 13, 2017]   

A change in the use of municipal parking spaces on parkland must be authorized by special legislation.

Informal Opinion No. 2017-2 citing Town Law §§176(11), 176-a, 176-a(1), 189-a(2)(d); Executive Law §23 [December 13, 2017]    

The positions of assistant fire chief of a joint fire district and county director of emergency services are compatible. [December 13, 2017]

Police officer terminated following being found guilty of downloading and possessing child pornography

Police officer terminated following being found guilty of  downloading and possessing child pornography

2017 NY Slip Op 09243, Appellate Division, First Department

A New York City police officer [Petitioner] was found guilty of accessing, downloading, and possessing child pornography. The penalty imposed: termination from his employment.  

The Appellate Division unanimously confirmed the determination that Petitioner was guilty of downloading and possessing child pornography as it was supported by substantial evidence and the Hearing Officer was entitled to consider Petitioner's demeanor during his testimony at the disciplinary hearing into account when assessing Petitioner's credibility

The court also noted that Petitioner's behavior during the execution of the search warrant at his home provided circumstantial evidence of his guilt as to both charges.

As to the possibility of considering mitigating circumstances with respect to the penalty imposed, dismissal from the position, the Appellate Division opined that notwithstanding Petitioner's tenure with the police department since 1999, the absence of any formal disciplinary record, and the fact that he had been awarded several medals, terminating Petitioner for downloading and possessing child pornography did not shock the court's sense of fairness.

Other cases of involving alleged involvement with pornography that resulted in disciplinary action being taken against the employee include:

Ghita v Department of Education of the City of New York, 2008 NY Slip Op 30706(U);
Phelps-Clifton Springs CSD v Nicot, Supreme Court, Ontario County, Index #103465;
Davis v DMNA, 291 A.D.2d 778, Schnaars v Copiague UFSD, 275 A.D.2d 462; and
Shurgin v Ambach, 56 NY2d 700

The decision in chief is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_09243.htm

Concluding that "reasonable minds might disagree" with the arbitrator's determination insufficient to justify a court's vacating or modifying an arbitration award

Concluding that "reasonable minds might disagree" with the arbitrator's determination insufficient to justify a court's vacating or modifying an arbitration award

Bolt v New York City Dept. of Educ., [No. 51 SSM 34]; Matter of Beatty v City of New York, et al., [No. 52 SSM 35 ]; and Matter of Williams v City of New York, et al.,  2018 NY Slip Op 00090, Court of Appeals [No. 53 SSM 36]

In Matter of Bolt v New York City Dept. of Education and Matter of Beatty v City of New York, and Matter of Williams v City of New York, the Court of Appeals reversed the Appellate Division's reversal of the Supreme Court's dismissal of the challenges to the penalty imposed in the course of disciplinary arbitration and reinstated the Supreme Court's determination dismissing of each of the three petitions challenging the arbitration award.

Citing City School Dist. of the City of N.Y. v McGraham, 17 NY3d 917, the Court of Appeals explained that the fact that "reasonable minds might disagree over what the proper penalty should have been does not provide a basis for vacating the arbitral award or refashioning the penalty," and in so doing found that the Appellate Division "exceeded its authority by reweighing the evidence and substituting its judgment for that of the hearing officer."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_00090.htm