Labor & Employment Law

Probationary employee challenges the authority of Commissioner to dismiss him

By Harvey Randall, Esq.

Probationary employee challenges the authority of Commissioner to dismiss him
Matter of Duncan v Kelly, 43 A.D.3d 297, affirmed, 9 N.Y.3d 1024

Introducing its decision with the statement that:

It is well settled that a probationary employee may be discharged for any or no reason, absent a showing that such dismissal was in bad faith, for a constitutionally impermissible purpose or in violation of law (see Matter of Swinton v Safir, 93 NY2d 758, ?

the Appellate Division upheld the New York City Police Commissioner?s decision to terminate New York City probationary police officer Myron Duncan because of an incident that occurred prior to Myron?s appointment to the police force.

Myron argued that his termination was procedurally improper because it was based on ?pre-hiring conduct, over which exclusive authority would be vested in the Department of Citywide Administrative Services.?

The Appellate Division disagreed, ruling that it was Duncan?s ?post-hiring conduct, in making false and misleading statements to members of the Internal Affairs Bureau (IAB) concerning a crime he was allegedly involved in prior to his employment as a police officer, that provided ample basis for his termination.?

It appears that the IAB interviewed Duncan about a pre-hiring credit card incident that implicated his cousin in criminal activity while Duncan was serving his probationary period. Duncan denied knowledge of any such criminal activity. The IAB, however, determined that Duncan denial was a lie. This resulted in Duncan?s being terminated during his probationary period ?for making false statements? during the IAB investigation, a decision based on an action clearly distinguishable from a decision based on action involving Duncan?s pre-hiring conduct.

The Appellate Division observed that Duncan was terminated from his position after the IAB?s findings were reviewed by the Department?s Chief of Personnel and subsequently approved by the First Deputy Commissioner and the Police Commissioner and ?are entitled to substantial deference.?

Full post as published by New York Public Personnel Law on April 18, 2008 (boomark / email).