AELE case notes, publications, and seminar alerts for June 2020

• Adverse Actions Against Public Employees For First Amendment
  Speech: An Introduction and Overview. New June AELE Law Journal article, http://www.aele.org/law/2020all06/2020-06MLJ201.pdf
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• Public Safety Discipline and Internal Investigations Seminar---Attend Virtual or In Person. Las Vegas, Nevada is opening for business and will be in full swing for the September 28, 2020 3.5-day updated seminar on "Public Safety Discipline and Internal Investigations Seminar." A first: You can virtually attend the seminar because it will be broadcast live. The seminar begins on Monday, September 28 and ends at Noon on October 1, 2020. Another first is online registration and payment. For registration and more information, http://www.aele.org/public-safety-discipline-and-internal-investigations.html
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• June Law Enforcement Liability Reporter: This issue has cases on assault and battery: pepper spray, false arrest/imprisonment: no warrant, Federal Tort Claims Act, firearms related: intentional use, firearms related: Second Amendment issues, interrogation: juveniles, immigrants and immigration issues, search and seizure: home/business, and search and seizure: person. http://www.aele.org/law/2020all06/LR2020JUN.pdf
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• June Fire, Police & Corrections Personnel Reporter: This issue has cases on age discrimination: termination, FLSA: overtime in general, First Amendment, handicap/abilities discrimination, race discrimination, and whistleblower protection. http://www.aele.org/law/2020all06/FP2020JUN.pdf
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• June Jail and Prisoner Law Bulletin: This issue has cases on   COVID-19, governmental liability: policy/custom, medical care: dental, Prison Litigation Reform Act: exhaustion of remedies, prisoner assault: by inmates, prisoner suicide, prisoner transport, and religion. http://www.aele.org/law/2020all06/JB2020JUN.pdf
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• An ON-DEMAND recording of the May 26, 2020 Webinar: Law Enforcement Use-of-Force Accountability: Qualified Immunity, "Standards," Degrees of Certainties, and Junk Science is now available for viewing at https://www.youtube.com/watch?v=Dg5GUe9BQt8&feature=youtu.be
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Imposing a "one-year dismissal probation" as part of a disciplinary penalty

A New York City police officer [Officer] was charged and found guilty of multiple New York City Police Department patrol guide violations that occurred in five separate incidents in course of a disciplinary hearing conducted by an assistant deputy commissioner [ADC]. The penalty recommended: a "one-year dismissal probation",* a 31 day suspension without pay which , the decision notes, had already been served, and the forfeiture of 20 vacation days.

Officer filed a CPLR Article 78 petition in Supreme Court challenging the disciplinary action taken against him. Supreme Court transferred Officer's petition to the Appellate Division, which court unanimously denied Officer's petition and dismissed the action.

The Appellate Division explained that all charges against Officer that were sustained by the ADC were supported by substantial evidence in the record. The court said it found no reason to overturn the ADC's credibility determinations, noting that such determinations are "largely unreviewable".**

As to Officer's allegation that hearsay evidence had been considered by the ADC in his arriving at his determination, the Appellate Division, citing Matter of Rosa v New York City Hous. Auth., Straus Houses, 160 AD3d 499, said "hearsay evidence may be the basis for an administrative determination and — if sufficiently relevant and probative — may constitute substantial evidence alone".

Addressing Officer's objection to the disciplinary penalty imposed on him, the Appellate Division, applying the so-called Pell standard***,  opined that it did not find such penalty to be so disproportionate to the offences for which Officer had been found guilty as to shock one's sense of fairness.

* No specific condition or reason is identified in the court's decision with respect an act or omission that would trigger the appointing authority's power to terminate Officer without notice and hearing while Officer was serving as a probationary employee [see Taylor v Cass, 122 A.D.2d 885]. 

** Berenhaus v Ward, 70 NY2d 436.

*** Pell v Board of Education, 31 NY2d 222.

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2020/2020_03075.htm

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A Reasonable Disciplinary Penalty Under the Circumstances

 Determining an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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A 15-day suspension from employment without pay found reasonable under the circumstances

Supreme Court denied a teacher's [Plaintiff] petition seeking to vacate an arbitration award suspending him for 15 days without pay. The Appellate Division unanimously affirmed the Supreme Court's ruling. 

Citing Lackow v Department of Educ. [or "Board"] of City of N.Y., 51 AD3d 563, the Appellate Division held that the arbitrator's decision has a rational basis and was supported by the evidence. 

The record, said the court, shows that the arbitrator reasonably determined that the Petitioner was guilty of misconduct when he locked a 10-year old student out of the classroom and left him unsupervised in the hallway. 

Even if Petitioner was justified in removing the student from the classroom, said the Appellate Division, his actions in locking the boy out of the room, in a state of distress and leaving him in the hallway without adequate supervision, violated school policy.

The Appellate Division said that imposing a penalty of a 15-day suspension without pay from employment "does not shock our sense of fairness."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00976.htm