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Disciplinary action for off-duty misconduct

By Harvey Randall, Esq.

Disciplinary action for off-duty misconduct
Smith v Kerick, App. Div., First Dept., 292 A.D.2d 223

May an employee's off-duty misconduct be the basis for disciplinary charges being filed against the employee and if found guilty, support the imposition of the penalty of dismis­sal? This was the issue raised before the Appellate Division when New York City Police Commissioner Bernard Kerick fired detective Robert Smith after he found Smith was guilty of off-duty misconduct.

Smith was charged with striking an individual with his weapon without justification while he was engaged in unauthorized off-duty employment as a security guard at a nightclub. The Commissioner also determined that Smith subsequently encouraged fellow detectives to arrest the individual he had struck without informing them of the immanency of Smith's criminal trial in which the individual was to testify against him.

Finding that there was substantial evidence to support the Commissioner's determination, the Appellate Division said that "the penalty of dismissal does not shock our sense of fairness," citing Kelly v Safir, 96 NY2d 32, in support of its ruling.

Full post as published by New York Public Personnel Law on February 01, 2008 (boomark / email).