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Disciplinary settlements

By Harvey Randall, Esq.

Disciplinary settlements
Alfred v Safir, App. Div., First Dept., 283 A.D.2d 280

In the course of settling a disciplinary matter, the employee typically agrees to plea guilty to some or all of the charges in exchange for a negotiated penalty that the employee and the employer's representative agree will be imposed. The hearing officer usually makes this settlement a part of the record and the hearing is then "closed."

The Alfred decision sets out the proposition that in the context of the settlement of a disciplinary action, the penalty to be imposed agreed upon by the employee and employer's representative, and made part of the record by the disciplinary hearing officer, may not be binding on the appointing authority.

According to the decision, New York City Police Commissioner Howard Safir suspended Gary Alfred for 30 days without pay and placed him on disciplinary probation for one year following the settlement of disciplinary charges filed against Alfred.

Alfred objected, contending that he, the department's representative at the disciplinary hearing and the disciplinary hearing officer had all agreed to the imposition of a different disciplinary penalty.

The Appellate Division, First Department, unanimously affirmed Safir's decision, commenting that "[t]he various determinations and penalties agreed to by [Alfred] and [the department's] advocate and/or hearing officer were not binding" on Safir, the appointing authority, citing Silverman v McGuire, 51 NY2d 228.

Further, said the court, there is no basis for Alfred to claim that Safir's rejection of the penalty "agreed upon" in the course of settling the disciplinary action was based on racial and other arbitrary considerations.

As to the penalty ultimately imposed by Safir in the course of the disciplinary action, the court ruled that it was "not so disproportionate to [Alfred's] failure to perform the most basic aspects of his assignment as to shock our sense of fairness."

This ruling suggests that where the appointing authority makes the final determination, it would be prudent for:

1. The employer's representative to insist that any settlement of a disciplinary action include a statement to the effect that the settlement is subject to the approval of the appointing authority; and

2. The employee or the employee's representative to insist on a provision spelling out what is to happen if the appointing officer does not agree to imposed the penalty set out in the settlement proposal.

Full post as published by New York Public Personnel Law on January 31, 2008 (boomark / email).