Appointing authority may imposed a harsher disciplinary penalty than one recommended by a hearing officer if not disproportionate to the offense

Appointing authority may imposed a harsher disciplinary penalty than one recommended by a hearing officer if not disproportionate to the offense
Russo v Wantagh UFSD, 259 AD2d 703

Smoky conditions prompted school officials of the Wantagh school district to evacuate students from a school building. Investigation showed the fire began in the custodians’ area of the school and was caused by cigarettes igniting waste paper in a plastic trash pail that had not been emptied.

The school board dismissed custodian Clement Russo after he was found guilty of “charges of misconduct and incompetence concerning a smoke condition in the school at which he was employed.” Russo appealed.

The Appellate Division sustained the district’s determination, finding that it was supported by substantial evidence in the record.

Russo also protested his dismissal on the grounds that the hearing officer had recommended a lesser penalty. The court said that “under the circumstances of this case, the termination of [Russo’s] employment was not so disproportionate to the offense as to shock one’s sense of fairness,” quoting the Pell standard in imposing a penalty [Pell v Bd. of Ed., 34 NY2D 222].
NYPPL

Employer fined after docking employee’s pay for jury duty absence
People v Rosenbach, Nassau Co. Ct. [Justice DeMaro], [Not selected for publication in the Official Reports]

From time to time a public employee is called to serve on jury duty. The attendance rules for state officers and employees [4 NYCRR 28.1.9], for example, grants employees “leave with pay without charge to leave accruals” when called upon for jury service. Other jurisdictions provide for similar benefits.

In contrast, penalizing an employee for performing his or her civic duty by reporting for jury duty can be expensive, as attorney Ann Rosenbach has learned. Rosenbach was fined $1310 for criminal contempt after she docked one and one-half weeks of pay from the salary of an attorney in her employ when the attorney was called for jury duty.*

State Assistant Attorney General Jennifer Brand, who prosecuted the case, said “this may be the first time an employer was held in criminal contempt for ‘penalizing’ an employee called to serve on jury duty.

* Lynn Weit, who worked as an attorney in Rosenbach’s law office, received a jury summons and informed Rosenbach that she would be absent from work for an expected two days to fulfill her civic obligation.
NYPPL

Fitness of a witness determined by the credibility of his or her testimony

Fitness of a witness determined by the credibility of his or her testimony
Goodman v Safir, 259 A.D.2d 344

In the Goodman case, the Appellate Division considered the value of testimony provided by “corrupt former employees” called by the employer as witnesses against another employee in a disciplinary action.

New York City police officer Keith Goodman was terminated from his position after being found guilty of participating in unlawful searches in violation of the Fourth Amendment to the U. S. Constitution on a number of occasions. Goodman challenged his dismissal, contending that there was no substantial evidence supporting the Commissioner’s action because, Goodman alleged, a number of the witnesses testifying against him were corrupt former police officers.

The Appellate Division dismissed Goodman’s appeal, commenting that it found “no reason to disturb [the Commissioner’s] credibility findings rejecting [Goodman’s] version of the events.” The fact that some of the witnesses testifying for the employer were characterized by Goodman as “corrupt former police officers” did not mean that their testimony was not “substantial” insofar as the Appellate Division was concerned.

Finding that the penalty of dismissal did not shock its sense of fairness, the Appellate Division sustained the commissioner’s determination and his terminating Goodman from his position.
NYPPL

Court annuls penalty imposed after finding appointing authority failed to investigate before taking disciplinary action against individual

Court annuls penalty imposed after finding appointing authority failed to investigate before taking disciplinary action against individual
Matter of Titone v Rocky Point Fire Dept., 2010 NY Slip Op 33037(U), October 25, 2010, Supreme Court, Suffolk County, Judge Jeffrey Arlen Spinner [Not selected for publication in the Official Reports]

Joseph A Titone filed a petition “in the nature of mandamus” pursuant to Article 78 of the CPLR challenging his suspension from his position as Captain of Company One of the Rocky Point Volunteer Fire Department and asked the court to direct the Board of Commissioners of the Fire Department to annul its action and to expunge the suspension from his record.

The genesis of Titone’s suspension was a letter he wrote to John Celentano, Chief of Rocky Point Fire Department, in which Titone indicated that a department rescue boat was out of service for “work that should have been performed off season” and a Company One fire truck was allowed to remain in service without operational mechanical or electrical sirens.

Celentano summarily suspended Titone from the Department without notice or hearing, for “for improper conduct.” Twenty-seven days later the Chair of the Board of Fire Commissioners reinstated Titone to active duty as Captain of Company One, but warned him that any further “infractions would result in his dismissal from the Department.”

Titone contending that the Chair’s letter failed to specify the reason for his suspension; failed to state any final determination regarding the suspension; failed to indicate what conduct would be considered “a further infraction;” and failed to address the effects of the suspension, such as possibly preventing him from seeking any Department elective office for the following three years, sued.

Judge Spinner granted Titone’s petition “in all respects,” and denied the Department’s application seeking dismissal of his complaint “in all respects”.

Indicating that it is “indisputable that the standard of review for determinations of Board of Fire Commissioners and Celentano is whether the decision rendered is arbitrary, capricious and, or, unlawful, Judge Spinner said that “Nowhere do Respondents demonstrate that they made any inquiry whatsoever into the facts before rendering their decision to suspend [Titone], making their actions indisputably arbitrary and capricious.”

The court noted that, as Titone’s Counsel “adeptly points out that, rather than investigating the fact that rescue equipment was in need of repair, they rushed to punish [Titone] for abiding by his oath to protect and serve the public.” The opinion then states: “This Court is most perplexed by how legitimate concern for the safety of the firefighters volunteering to respond to emergencies and the taxpayers the Respondents serve comes to be characterized as defamation.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2010/2010_33037.pdf
NYPPL

A settlement of a disciplinary action should be memorialize in writing

A settlement of a disciplinary action should be memorialize in writing
Winkler v Kingston Housing Auth., 259 AD2d 819

A public employee who faces disciplinary charges may enter into a settlement agreement that disposes the charges, so long as the waiver is knowingly and intelligently undertaken and serves as the consideration for the curtailment of pending disciplinary proceedings [see Whitehead v State of New York Department of Mental Hygiene, 71 AD2d 653].

The Winkler case teaches the lesson that parties to a settlement can avoid considerable grief if the terms of the negotiated settlement are contemporaneously placed in the record or, in the alternative, signed by all of the necessary parties upon conclusion of settlement negotiations.

Barbara Winkler, a Kingston Housing Authority account clerk/typist, was suspended without pay pending a disciplinary hearing for a period not to exceed 30 days pursuant to Civil Service Law Section 75.3 effective May 12, 1995. She removed her belongings from her desk on May 15, 1995 and demanded a Section 75 hearing. A hearing was scheduled for June 8, 1995.

In the course of the hearing the parties asked for an adjournment to negotiate a settlement in an effort to resolve the disciplinary action. Ultimately, the parties reached an oral agreement resolving the charges filed against Winkler and the Section 75 hearing was “permanently terminated.” Despite the presence of a court reporter, the terms of the settlement were not placed on the record. Subsequent efforts to memorialize the agreement in a written signed document were unsuccessful. Winkler never returned to work, nor did she submit a letter of resignation.

Winkler sued, contending that the matter had not been resolved, that she was still employed by the Authority and that she should have restored to the payroll upon the expiration of the 30-day period of suspension without pay authorized by Civil Service Law Section 75.3.

A state Supreme Court judge dismissed Winker’s petition. The court ruled that Winkler’s employment ended May 15, 1995, notwithstanding the fact that she had not submitted a written resignation.

The court concluded that testimony at the trial indicated that “an agreement was reached to which [Winkler] consented whereby the suspension would be vacated, no finding of guilt on the charges would be made, [Winkler] would receive six months of salary and health insurance benefits for one year, and that [the Authority] would not oppose plaintiff’s efforts to be placed on the Commission’s preferred list, if eligible, and to receive unemployment compensation.”

The Appellate Division affirmed the lower court’s ruling. It said that Winkler had been accorded all the protections of Section 75 to which she was entitled, noting that she had been given a statement of the charges and a hearing was held at which she was represented by counsel. The Appellate Division also said that “after detailed negotiations, the parties entered into a verbal agreement in full satisfaction of all disciplinary charges.”

“[W]hile it would have been preferable for the parties to have recorded the agreement in some fashion,” the Appellate Division said, “an agreement on the record or in writing is not required by Civil Service Law Sections 75, case law or the Statute of Frauds....”

The court said that Winkler’s subsequent refusal to tender the agreed-upon letter of resignation does not entitle her to renegotiate the oral settlement agreement.

The Appellate Division, however, did not appear to be pleased with the handling of the “settlement.” It commented that “clearly, the procedures employed in entering into this [oral] agreement, which did not include a simultaneous recording of the terms, should not serve as a model to guide future settlement negotiations. Indeed, the failure to utilize the available court reporter to make an official record was inexplicable.”
NYPPL