Disciplinary penalty vacated as too harsh

Disciplinary penalty vacated as too harsh

Lagala v NYC Police Dept., 286 AD2d 205; Leave to appeal denied, 97 NY2d 605

Courts have consistently ruled that an administrative disciplinary penalty imposed on an individual must be upheld “unless it shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a matter of law.” A leading case setting out this principle: Pell v Board of Education, 34 NY2d 222. In Pell, the Court of Appeals said that a disciplinary penalty “shocks the judicial conscience when it is so graven in its impact that it is disproportionate to the offense.”

In the Lagala case the Appellate Division, First Department, applied the Pell standard and determined that the disciplinary penalty imposed on Lagala -- dismissal -- “shocks the judicial conscience.” The court directed that the matter be returned to the Commissioner for his reconsideration of the appropriate penalty to be imposed.

New York City police officer Anthony Lagala challenged his dismissal after he was found guilty of disciplinary charges alleging that he had (1) improperly issuing summonses for parking violations and (2) used a Department scooter without authorization.

The reasons given by the Appellate Division for vacating the disciplinary penalty imposed on Lagala and remanding the matter to the Commissioner of Police:

1. Lagala's sergeant testified that she never noticed deficiencies in the summonses he wrote, nor did she speak to him regarding the summonses he issued, although she spoke to 30 or 40 other officers about their deficiencies.

2. Lagala's performance evaluation for the period in question rated him between competent and highly competent.

3. The record showed that Lagala could not have taken the scooter without having obtained a supervisor's consent.

4. There is no evidence in the record that Lagala's misconduct involved dishonesty, venality or threat to public safety.

The court, referring to Pell, ruled that considering the relevant circumstances, the sanction of dismissal was so disproportionate to these “minor offenses” as to shock “one's sense of fairness.” 

DiNapoli’s Office Completes School Audits

New York State Comptroller Thomas P. DiNapoli announced his office completed the following audits: the Central Islip Union Free School District; the Eden Central School District; and, the Fonda-Fultonville Central School District..

In addition, Comptroller DiNapoli posted his completed audits of the City of Binghamton; the Town of Elma; the Elmont Fire District; the Town of Farmersville; Orange County; the Town of Orange; the Village of Penn Yan; and, the Village of Sherman.

These audits have been posted on the Internet and may be accessed by clicking on the name of the school district or municipality.

And the winner is….

And the winner is….

Goggle statistics

Goggle Statistics reports that as of August 1, 2011 “Any administrative action in the nature of discipline taken against a tenured teacher must be taken pursuant to Education Law §3020-a exclusively” the most read item posted on NYPPL.

Originally posted on July 13, 2010, it is found at: http://publicpersonnellaw.blogspot.com/2010/07/any-administrative-action-in-nature-of.html

Public policy voids arbitrator’s award

Public policy voids arbitrator’s award

City of New York v. Uniformed Firefighters Assn, 87 AD2d 255, [Revs'd on other grounds, 58 NY2d 957]

When New York City announced it would establish positions of (civilian) Fire Inspection Inspectors, the Firefighters Union objected.

An arbitrator ruled that assigning civilians to perform inspection and fire prevention duties previously performed by uniformed firefighters violated the Taylor Law contract between the City and the Firefighters Union and ordered the City not to make any further such assignments.

The City appealed the arbitrator’s award in favor of the Union to the Court (see Article 75, Civil Practice Law and Rules which sets forth limited grounds for challenging the award of an arbitrator). The Appellate Division ruled that “if an (arbitrator’s) award, such as the award in this case, contravenes the statutory mandate, it violates public policy and the court is required to set it aside....”

The decision noted that the City’s Administrative Code provided that the City determine the “methods, means and personnel by which government operations are to be conducted.” The opinion implies that where the arbitrator fashions an award which violates the mandate of a statute, the arbitrator has exceeded his authority and the award will not be enforced by the court. 

Temporary assignment not the same as appointment to a “position”

Temporary assignment not the same as appointment to a “position”

Miller, et al, v. Braun, Sheriff of Erie County, 89 A.D.2d 787

A number of Criminal Deputy Sheriffs with the Erie County Sheriff’s Department, a position in the competitive class, were “appointed” to the “position” of Special Deputy.

The Erie County Charter permitted the Sheriff to make “temporary assignments” as “Detective Deputy and Special Deputy.” The County eliminated the “Special Deputy” and established a competitive class position of Sergeant.

When former “Special Deputies” failed the test for Sergeant, they were returned to their regular Criminal Deputy positions. They then sued.

With respect to Miller’s claim that a “local law” was required to “reclassify” the position of “Special Deputy” to Sergeant, the Appellate Division ruled that the County had not created the position of “Special Deputy” but merely authorized the Sheriff to make a “temporary assignment” to that status.

The court then concluded “reclassification of the position of Special Deputy to make it competitive...does not effect an abolishment of or change in a position created by the Charter.”

It seems that there was some confusion between the creation of a “position” and the status of a person given a special title while in a position. Under traditional Civil Service classification concepts, the “position” of “Special Deputy”, if properly established, could have been “reclassified” to Sergeant.

In any event, the former “Special Deputies” would not appear to have a claim to permanent status in the Sergeant positions unless they were “permanently appointed” in accordance with law. (See CSEA v. Harrison, 48 NY2 66.)