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Probationary employee terminated after making false statement concerning a pre-employment incident

By Harvey Randall, Esq.

Probationary employee terminated after making false statement concerning a pre-employment incident
Matter of Duncan v Kelly, 2008 NY Slip Op 00181, Decided on January 15, 2008, Court of Appeals

New York City Police Department's Internal Affairs Bureau (IAB) conducted an interview probationary police officer Myron Duncan about a credit card incident that implicated his cousin in criminal activity that occurred prior to his appointment. Although Duncan denied knowledge of any such criminal activity, the IAB summarily determined that he had lied and terminated him for making false statements.[1]

The Appellate Division upheld Duncan?s termination, commenting ?it was petitioner'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 [Duncan v Kelly, 43 A.D.3d 297]. The Court of Appeals affirmed the Appellate Division?s ruling.

The court said that the Police Commissioner has the authority to discharge a probationary police officer for conduct committed while serving as a member of the force, citing New York City Administrative Code §14-115. The court noted that a probationary employee may be discharged for "almost any reason, or for no reason at all" as long as the decision is not made "in bad faith or for an improper or impermissible reason."

The court rejected Duncan?s argument that he was dismissed solely due to pre-hiring conduct. The Commissioner, said the court, relied upon Duncan?s post-hiring conduct that involved giving false and misleading statements to members of the Internal Affairs Bureau in making his determination to dismiss Duncan from his position.

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[1] The IAB investigation absolved Duncan of two other alleged crimes.

Full post as published by New York Public Personnel Law on January 16, 2008 (boomark / email).