Suspension without pay for 270 days disciplinary penalty
Is suspending a employee found guilty of a number of chargesof misconduct without pay for 270 days lawful? After all, the Section 75 of theCivil Service Law limits such a suspension without pay for a period not toexceed two months.
The Appellate Division, Second Department, said it wasappropriate under the circumstances and sustained a 270-day suspension withoutpay disciplinary penalty imposed by the appointing authority on an individualafter he was found guilty of:
1. Two counts of engaging in conduct unbecoming an officer, 2. One count of using employer’s equipment other than inthe course of official business, 3. Four counts of engaging in unlawful conduct, 4. Two counts of failing to treat as confidential theofficial business of the employer, and 5. One count of making or submitting, or causing to besubmitted, a false official communication, record, or statement.
The Appellate Division said that the officer's guilt withrespect to these charges was supported by substantial evidence in the record.
As to the nature of the penalty imposed, the court said thatthe Police Department's determination regarding appropriate internal disciplineto be imposed is entitled to great deference and, "under the circumstancesof this case, will not be disturbed."
Although 75 of the Civil Service Law limits the suspensionwithout 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 ofsuspension without pay for 270 days was permissible pursuant to Civil ServiceLaw 76(4) and Nassau County Administrative Code 8-13.0.
Section 75 provides, as alternative disciplinary penalties,suspension without pay for not to exceed two months, punishment consisting ofeither a reprimand; or a fine not to exceed $120; or demotion in grade andtitle; or dismissal. In contrast, an arbitrator setting a disciplinary penaltypursuant to a contract disciplinary procedure is usually authorized to imposean "appropriate penalty" and is not limited to those prescribed in astatute such as Section 75 of the Civil Service Law.
Thedecisions are posted on the Internet at:
http://weblinks.westlaw.com/result/default.aspx?cfid=1&cnt=DOC&db=NY-ORCS-WEB&eq=search&fmqv=c&fn=_top&method=TNC&mt=Westlaw&n=5&origin=Search&query=%22302+AD2D+600%22&rlt=CLID_QRYRLT2327351539110&rltdb=CLID_DB7388350539110&rlti=1&rp=%2Fsearch%2Fdefault.wl&rs=NYOFF1.0&service=Search&sp=NYOFF-1000&srch=TRUE&ss=CNT&sskey=CLID_SSSA4989950539110&sv=Split&tempinfo=word&vr=2.0
[Leaveto appeal denied, 3N.Y.3d 611]
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