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Appellate Division rules disciplinary penalty imposed on employee excessive

Appellate Division rules disciplinary penalty imposed on employee excessive
Matter of Gomez v Kelly, 2008 NY Slip Op 07181, Decided on October 2, 2008, Appellate Division, First Department

New York City Police Commissioner Raymond W. Kelly found Manuel Gomez guilty of five charges of misconduct and as the penalty placed Gomez on a one-year disciplinary probation and imposed a forfeiture of 30 days of vacation credit. The charges filed against Gomez: violation of his commanding officer's order to terminate his involvement with the District Attorney's office in a criminal investigation; failure to take possession of drugs during a police department integrity test; failure to voucher his helmet, mace and shield before leaving for active military duty; retrieved his service handgun before the official date of his discharge from active military duty; and failure to report a domestic incident to the department.

Gomez appealed and the Appellate Division, after sustaining the Commissioner?s determination finding Gomez guilty of the charges filed against him, ruled the penalty imposed by the Commissioner was ?excessive in light of the mitigating circumstances, i.e., [Gomez's] several tours of active military duty, including a year in Afghanistan for which was decorated, and the substantial pay lost in connection with his military service,? citing Matter of Pell v Board of Education, 34 NY2d 222.

The court remanded the case to the Commissioner for the purpose of his setting a lesser penalty.

The full text of the decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07181.htm

Full post as published by New York Public Personnel Law on October 03, 2008 (boomark / email).