Imposing a disciplinary penalty

Imposing a disciplinary penalty

Toth v Nassau County Police Department, 302 AD2d 600

Was suspending a police officer found guilty of a number of charges of misconduct without pay for 270 days lawful? After all, the Section 75 of the Civil Service Law limits such a suspension without pay for a period not to exceed two months.

The Appellate Division, Second Department, said it was appropriate under the circumstances and the controlling law. It sustained the 270-day suspension without pay disciplinary penalty imposed by the appointing authority on Nassau County police officer Peter S. Toth after he was found guilty of:

1. Two counts of engaging in conduct unbecoming an officer,

2. One count of using departmental equipment other than in the course of official business,

3. Four counts of engaging in unlawful conduct,

4. Two counts of failing to treat as confidential the official business of the Nassau County Police Department, and

5. One count of making or submitting, or causing to be submitted, a false official communication, record, or statement.

The Appellate Division said that Toth's guilt with respect to these charges was supported by substantial evidence in the record. As to the nature of the penalty imposed, the court said that the Police Department's determination regarding appropriate internal discipline to be imposed is entitled to great deference and, "under the circumstances of this case, will not be disturbed."

Although §75 of the Civil Service Law limits the suspension without pay for a period of not to exceed two months, the Appellate Division, citing Coscette v Town of Wallkill, 281 AD2 479, ruled that the penalty of suspension without pay for 270 days was permissible pursuant to Civil Service Law §76(4) and Nassau County Administrative Code §8-13.0.

Section 76(4), in pertinent part, provides as follows:

Nothing contained in section seventy-five or seventy-six of this chapter shall be construed to repeal or modify any general, special or local law or charter provision relating to the removal or suspension of officers or employees in the competitive class of the civil service of the state or any civil division [emphasis supplied.]

In contrast to the “suspension without pay for a period not exceeding two months” cap set out in Section 75 of the Civil Service Law, §8-13.0(a)(3) of Nassau’s Administrative Code does not place any limitation on the length of any suspension, with or without pay, that may be imposed as a disciplinary penalty by he Commissioner of Police.*

* Nassau County Administrative Code §8-13.0 Discipline and punishment, in relevant part, provides as follows:

a. The Commissioner shall have power to discipline a member of the force by:

1. Reprimand;

2. Fine;

3. Suspension, with or without pay;

4. Dismissal or removal from the force; or

5. Reducing him to any grade below that in which he was serving. If he be above the grade of patrolman, after which his compensation shall be the same as that allowed to remembers [sic] of the grade to which he is reduced.

Videotape used at disciplinary hearing to demonstrate alleged misconduct

Videotape used at disciplinary hearing to demonstrate alleged misconduct

NYC Department of Corrections v Negron, OATH Index #1844/11

A New York City correction officer was charged with using unnecessary and excessive force against inmates on three different occasions. 

After reviewing videotape of the incidents and hearing testimony from a number of correction officers, two supervisors and the employee, OATH Administrative Law Judge Kara J. Miller ruled that the correction officer had used unnecessary and excessive force three times and submitted false or misleading reports concerning the incidents.  

Judge Miller, who had dismissed one of the charges filed against the correction officer – failure to report an  incident -- recommended that the employee be terminated.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-1844.pdf

Promotion to entrance level positions

Promotion to entrance level positions

Gallagher v City of New York, 307 A.D.2d 76 

May the state or a municipal civil service commission authorize a promotion examination for an entrance level position? This was the significant issue explored by Justice Solomon in the Gallagher case.

Kevin E. Gallagher, as president of the Uniformed Firefighters Association, sued the City of New York's Department of Citywide Administrative Services [DCAS] in an effort to bar the use of a "special promotional list" in place of, or ahead of, a list established by open competitive examination for appointment to New York City firefighter positions.

According to the decision, DCAS held two identical written examinations for firefighter on February 27, 1999. One examination, No. 7514, was open only to employees of the New York City Fire Department [FDNY] and was treated as a "promotion examination." The other, No. 7029, was open to members of the general public who met age and other eligibility requirements. Essentially, only the individuals transferred into FDNY from the Emergency Medical Service of the City's Health and Hospital Corporation were eligible for examination 7514.

DCAS established an eligible list composed exclusively of candidates who passed examination 7513 and a number of appointments were made from that list. No candidate who only took examination 7029 was appointed as a fire fighter.

Gallagher asked the court to require the DCAS to "merge" the two lists and make all future appointments from this merged list on the theory that since the position of firefighter was an entrance level position, providing for a "promotion examination" for that title violated the Civil Service Law.

Justice Solomon noted that the Court of Appeals in Murray v McNamara, 303 NY 140, said that:

while it was mindful of the legislative policy embodied in then Civil Service Law Section 16 (now Section 52), favoring the filling of vacancies through promotions, under Article 5, section 6 of the Constitution, "the right to appointment is entitled to the same protection as the right to promotion ...."

Essentially the Court of Appeals ruled that "promotion examinations may be held only where the employees sought to be promoted have passed an open examination for a lower grade in the type of work involved in the position to which promotion is sought." 

In Beloten v Diamond, 276 AD2d 438, the Appellate Division, First Department, with specific reference to employees of the FDNY in titles that were carried over from EMS, held that "the position of firefighter is an 'entry level' position," and, prior to the transfer of EMS to the FDNY, there could be no "promotion" to that position.

After weighting these several decisions and the arguments made by the parties, Justice Solomon decided that "FDNY shall make appointments of candidates for the position of firefighter from a merged list encompassing both the promotional and open lists." In the words of Justice Solomon:

Fairness dictates this result because the examinations were identical, and the determination by DCAS to exhaust the promotional list before appointing candidates from the open list was arbitrary and capricious....

The Court than prohibited FDNY from making any future firefighter appointments from other than the merged list.

Availability of a record essential in reviewing administrative determinations

Availability of a record essential in reviewing administrative determinations

Gumb v Port Authority of New York and New Jersey, NYS Supreme Court, Ia Part 6, Justice Bransten [Not selected for publication in the Official Reports.]

Citing Pell v Board of Education, 34 NY 2d 222, Justice Bransten said that it is well-settled that the standard for judicial review of an administrative determination in an appeal brought pursuant to CPLR Article 78 is limited to a court's determining whether or not the agency acted arbitrarily or capriciously in making its decision.

Assume, however, the agency whose decision is under review, through no fault of its own, cannot produce the records it claims would demonstrate that its decision was neither arbitrary nor capricious. This was the situation underlying the Gumb case.

Kevin J. Gumb filed an application for appointment as a police officer with the New York-New Jersey Port Authority Police. After he took and passed the Authority's written test for the position, the Authority notified him that it had disqualified him for appointment as a police officer based on the evaluation of his psychological tests and interviews "which found ... personality traits incompatible with the unique demands and stresses of employment as a Port Authority Police Officer."

Gumb sued, claiming that the Port Authority's determination was arbitrary and capricious and amounted to an abuse of discretion.

The only available record concerning Gumb's testing: a letter sent to Gumb stating that:

Based upon the multiple written psychological screening tests administered and two individual interviews, it was determined by the Port Authority Office of Medical Services that [you] would be unsuited [sic] for the position of Police Officer for Port Authority Public Safety Division.

The medical records concerning Gumb's examination and evaluation were destroyed in the September 11 terrorist attacks on the World Trade Center. Under the circumstances, the Authority argued, the letters sent to Gumb should be sufficient evidence of the basis for its administrative determination disqualifying Gumb to justify the court's dismissal of his petition. In the words of the Authority, the loss of the actual record "is insignificant to the instant petition, because the record is clear that [Gumb] was interviewed twice and was found unsuitabl[e] for the position."

The court disagreed, noting that courts are obligated to undertake a limited review to ensure "administrative rationality" and must find that there is some "rational basis or credible evidence to support an administrative determination" in order to sustain the administrative action being challenged.

Although there was written correspondence to Gumb notifying him that he was not going to be certified based upon results of psychological examination, the court said that it had nothing to rely upon to determine the rationale behind the Authority's decision to disqualify him. Accordingly, Justice Bransten said that it would not "blindly defer to the governmental decision" and ordered the Authority to re-evaluate Gumb.

Significantly, the court did not conclude that the Port Authority was arbitrary and capricious in making its determination. Rather, Justice Bransten said that the court's difficulty concerned the fact that, through no fault on the part of the Authority, there simply was no administrative record to review.

Prospective duties considered in designating a position “managerial” or “confidential” within the meaning of the Taylor Law.

Prospective duties considered in designating a position “managerial” or “confidential” within the meaning of the Taylor Law.

Buffalo Council of Supervisors & Administrators and Buffalo City School District, 35 PERB 3018

Assistant school superintendents previously included in a negotiating unit who regularly participated in weekly meetings conducted by the school superintendent and who assisted in the formulation of recommendations concerning school operations and who were assigned major rolls in labor relations were properly designated managerial based on current and prospective labor relations duties.