Charges relying on the “criminal” exception to the 18-month statute of limitations to file §75 disciplinary charges must describe the acts or omission that constitute a crime

Charges relying on the “criminal” exception to the 18-month statute of limitations to file §75 disciplinary charges must describe the acts or omission that constitute a crime

Petitioner, an employee of the Albany County Sheriff's Office, was served with a notice of intent to discipline and a notice of charges pursuant to Civil Service Law §75. Ultimately he was found guilty of the charges and terminated from his position.

The alleged misconduct: Violation of the Sheriff's Office General Order 29-SD-93 in that Petitioner [1] used “a concealed recording device to make an audio recording of a meeting held by a former Undersheriff which other employees attended and [2] Petitioner transfer and disclosure of the recording to others.

Addressing Petitioner’s CPLR Article 78 petition seeking dismissal of the charges as untimely, Supreme Court found that Charge 2 was, indeed, untimely, having be served more than 18 months after the alleged event occurred.

The court, however, founds that Charge I alleged conduct which, if proven in a criminal proceeding, constituted a crime – Official Misconduct* – which rendered the 18-month statute of limitations set out in Civil Service Law §75(4) inapplicable.

Petitioner appealed from that part of the Supreme Court’s order that held that Charge 1 was timely. The Appellate Division agreed with Petitioner's contention that Charge 1 was barred by the statute of limitations set forth in Civil Service Law §75 (4) as the disciplinary action was initiated more than 18 months after the date on which Petitioner was alleged to have used a concealed recording device at the meeting with the Undersheriff.

The court, noting that Charge 1 alleged that Petitioner had violated Subsection KK of the Sheriff's order relating to recording devices, said that Subsection KK provides that "[n]o employee shall install or activate any microphone or any technical or mechanical device or system capable of recording or overhearing conversations or telephone messages without authorization from the Sheriff or Undersheriff."

Charge 1, in pertinent part, alleged that Petitioner  “intentionally concealed a recording device on [his] person and recorded the contents of this meeting without authorization."  The Appellate Division said that it did not find that such misconduct “would, if proved, constitute the crime of official misconduct” within the meaning of Penal Law §195.00([1), or any other crime. The court explained that in making its threshold determination concerning the timeliness of Charge 1 based on the exception for criminal misconduct set out in §75.4 of the Civil Service Law, only the allegations of misconduct "complained of and described in the charges" may be considered.

The Appellate Division observed that, as relevant here, a public servant is guilty of official misconduct when, with intent to obtain a benefit, the employee "commits an act relating to his [or her] office but constituting an unauthorized exercise of his [or her] official functions" and such act must be done "knowing that such act is unauthorized."

In this instance the misconduct "complained of and described in the charges" did not, in the court’s view, allege that Petitioner acted with the intent to gain a benefit, an essential element required for an official misconduct conviction. As the conduct described in Charge 1 would not, if proven in court, constitute a crime, the Appellate Division concluded that the 18-month statute of limitations governs and Charge 1 should have been dismissed as untimely.

* Penal Law §195.00 [1]

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02309.htm

GML §207-c benefits to be discontinued if individual receiving such benefits is offered and refuses to accept a light duty assignment for which he or she is qualified

GML §207-c benefits to be discontinued if individual receiving such benefits is offered and refuses to accept a light duty assignment for which he or she is qualified 
Howell v County of Albany, 2013 NY Slip Op 02308, Appellate Division, Third Department

A petition submitted to Supreme Court a review of a determination by the Albany County Sheriff to suspend a correction officer’s General Municipal Law §207-c benefits was transferred to the Appellate Division.*

Petitioner was employed as a correction officer by Albany County Sheriff's Office and as a result of a work-connected incident, was receiving General Municipal Law §207-c benefits. Petitioner, however, subsequently rejected the Sheriff Department’s offer of a light duty assignment and refused to return to work.

A hearing was conducted to determine the extent of Petitioner’s disability. The Hearing Officer recommended that Petitioner be found capable of performing light duty and the Department adopted the recommendation and ordered Petitioner to report for a light duty assignment or face suspension of his GML §207-c benefits.**The Petition failed to report for light duty as directed and the Department suspended his GML §207-c benefits.

The Appellate Division affirmed the Department’s determination, rejecting Petitioner’s claim that the Sheriff's determination was made in violation of his due process rights because the Hearing Officer refused to consider proof that he suffered from posttraumatic stress disorder and, in addition, had considered evidence “outside the record.”

The court explained that "The right of a disabled officer to receive section 207-c disability payments constitutes 'a property interest giving rise to procedural due process protection, under the Fourteenth Amendment, before those payments are terminated.'"

Noting that the GML §207-c does not provide a procedural framework for making such determinations, the Appellate Division said that municipalities are free to establish their own procedures, consistent with or exceeding what is required by due process, through collective bargaining. The court also noted that "due process does not require a hearing . . . until the employee has raised a genuine dispute on [the] operative facts", citing Davis v Westchester County, 42 AD3 79 (appeal dismissed 9 NY3d 953)

.

The Appellate Division found the Petitioner had been provide with administrative due process in that when he objected to the Sheriff’s light duty he was provided with a predetermination hearing in which he was able to present his own witnesses and cross-examine the Department’s witnesses.

The court said that in its view the Hearing Officer did not violate Petitioner's procedural due process rights by refusing to consider evidence that he suffered from posttraumatic stress disorder as “there is no indication in the record before us that petitioner put that diagnosis in issue — i.e., he raised no genuine dispute with respect to that diagnosis, as opposed to his established claims — prior to offering his expert's testimony at the hearing“

The court also rejected Petitioner's claim that the Hearing Officer considered evidence “outside the record” by noting that, in the context of his assessment of the credibility of Petitioner's witnesses, “his observations of Petitioner's demeanor while leaving the hearings.”

* Although the Appellate Division noted that the proceeding had been “improperly transferred” to it because the petition does not raise a question of substantial evidence; it, nonetheless, ruled that it would “retain jurisdiction in the interest of judicial economy.”

** GML §207-c.3, in pertinent part, provides that an otherwise eligible individual “unable to perform his regular duties as a result of such injury or sickness but is able … to perform specified types of light police duty, payment of the full amount of regular salary or wages, as provided by subdivision one of this section, shall be discontinued with respect to such policeman if he shall refuse to perform such light police duty if the same is available and offered to him .…”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_02308.htm

An adverse disciplinary hearing determination must be supported by substantial evidence

An adverse disciplinary hearing determination must be supported by substantial evidence

The appointing authority adopted in part and rejected in part the recommendation of a Civil Service Law §75 hearing officer that found the employee guilty of misconduct and/or incompetence. The penalty imposed: termination.

Supreme Court rejected the former employee’s Article 78 petition seeking to vacate the appointing authority’s decision.

The Appellate Division affirmed the Supreme Court’s ruling, explaining that a judicial review of administrative determinations in employee disciplinary cases made after a hearing under Civil Service Law §75 is limited to a consideration of whether the determination was supported by substantial evidence.*  Here, said the court, there was substantial evidence in the record to support the determination that the individual was guilty of misconduct

As to the penalty imposed but the appointing authority, dismissal, the Appellate Division, citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, said that u under the circumstances presented the termination of the individual's employment “was not so disproportionate to the offense committed as to be shocking to one's sense of fairness.”

* In contrast, in Christopher v Phillips, 160 A.D.2d 1165, motion to appeal denied, 76 N.Y.2d 706, the court ruled that “if a hearing is not required by law, the substantial evidence standard of review does not apply [and] the appropriate standard for the purpose of judicial review [in such a situation] is whether the determination is arbitrary or capricious.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02247.htm