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Discipline settlements

Discipline settlements
Sills v Keric, NYS Supreme Court, Ia Part 30, Justice Heitler, affd, 5 A.D.3d 247, appeal denied 3 NY3d 610

New York City police officer Edward Sills was terminated from his position pursuant to a "Terminate Probation Agreement" that he had signed to settle an earlier disciplinary action. The agreement, which provided for a one year probationary term, included the following terms and conditions:

The Police Commissioner may impose punishment of dismissal or any lesser penalty he deems appropriate at any time during such period [of probation].

I am fully aware of the fact that I am entitled to a Disciplinary Hearing pursuant to appli­cable laws of the City and State of New York in which I would be entitled to representa­tion, to confront witnesses against me and to appeal an adverse decision rendered after such hearing to a Court or Administrative Agency of proper jurisdiction.

If this penalty is approved by the Police Commissioner, I accept said decision, and as a condition of accepting such decision of the Police Commissioner, I hereby waive any and all rights granted to me under all applicable laws of the City and State of New York and acknowledge that this acceptance is the same as a finding of guilt after a hearing.

Sills and the Department had entered into the agreement after Sills conceded he pleaded guilty of disciplinary charges alleging that he:

1. Wrongfully operating a motor vehicle while under the influence of alcohol or drugs;

2. Wrongfully and without just cause refusing to submit to a Breathalyzer test; and

3. Was unfit for duty due to having consumed an unknown quantity of an intoxicant rather than proceed to a disciplinary hearing where the penalty sought by the Department was dismissal from the service.

While on disciplinary probation Sills participated in "off duty" beer drinking with some fellow police officers.

One of the participants, Joseph Gray, later that day struck a pregnant mother, her child and sister while allegedly driving under the influence and ultimately was convicted of manslaughter.

Citing the terms of the agreement, the Commissioner terminated Sills from his position without a hearing. Sills sued, seeking a court order annulling his termination and reinstating him to his former position with back salary and benefits.

Sills argued that "he did not commit any misconduct and, as such, there was no reason for his termination." He contended that his drinking beer was done on private property and that off-duty police officers are not prohibited from drinking alcohol as long as they remain fit for duty.

Sills also claimed employment discrimination, alleging that the Department "sought to rid itself of an employee with a previously admitted drinking problem and used his probation agreement as a pretext for his termination so that he would not be entitled to a hearing.

The Department, on the other hand, argued that at the time it terminated Sills he was under disciplinary probation that provided for his termination "without a hearing and without a statement of reasons absent a constitutional or statutory violation."

Justice Heitler said that a court must consider whether or not Sills termination was unjus­tified, unduly harsh, arbitrary, capricious or made in bad faith. Justice Heitler concluded that "[a]s long as the dismissal is not made in bad faith, a probationary employee may be dismissed for any reason or for no reason without a hearing or statement of reasons."

According to the decision, Sills had the burden of showing bad faith by the Department and he was unable to meet this burden.

The court also commented that "even in the case of a non-probationary officer, the Commissioner has the right to terminate for purposes of maintaining the integrity of the police department."The court dismissed Sills petition, stating that as "a policeman with a history of intoxica­tion, ... [he] ignored his history with alcohol; he further didn't appreciate the fact that, despite this history, he was given a second chance ... his being put on probation."

As to Sills claim of unlawful discrimination because of a disability, Justice Heitler said that because "his admitted conduct demonstrates that he is an alcoholic who contin­ues to drink and is not in a rehabilitation program," he cannot claim protection under 296(1) of the Executive Law as that provision only applies in cases of rehabilitated and rehabilitating drug abusers.

Further, said the court, even if [Sills] did fall within the scope of 296, the reason offered by the Police Department for its terminating him "is the maintenance of the integrity of the Police Force, and legitimate and non-discriminatory in nature."

Justice Heitler said that, under the "totality of the circumstances," he found that Sills failed to meet his burden and dismissed his petition in its entirety.

Full post as published by New York Public Personnel Law on June 13, 2008 (boomark / email).