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Employee suspended for 30-days without pay after being found guilty of failing to comply with a superior?s lawful order

Employee suspended for 30-days without pay after being found guilty of failing to comply with a superior?s lawful order
Matter of Nash v Kelly, 2009 NY Slip Op 04723, decided on June 9, 2009, Appellate Division, First Department

The New York City Police Commissioner adopted a Hearing Officer?s determination that found Police Detective Andrew Nash guilty of failing to comply with a lawful order of a superior officer concerning ?licensing information on a computer program used by the Department? and was discourteous to that officer when questioned about such refusal, The penalty imposed: a 30-day suspension without pay.

The Appellate Division affirmed the Commissioner?s disciplinary finding and the penalty imposed on Nash.

The court said that there was no basis exists to disturb the hearing officer's findings. The Hearing Officer had credited the testimony of the Department's witnesses that Nash had failed to comply with a lawful order of a superior officer and was discourteous to that officer when questioned about such refusal.

In contrast, said the court, the Hearing Officer discredited Nash's testimony that he got "a little loud and upset," but did not yell and scream, when, after telling the superior officer that he caught her assistant hacking into his computer, she ordered him not to report the incident.

Finding that substantial evidence supporting the Hearing Officer?s findings, including the testimony of other officers concerning the tenor and tone of the oral exchange between Nash and his superior officer, the Appellate Division said that ?[t]he penalty does not shock our conscience,? citing. Matter of Clifford v Kelly, 58 AD3d 432.

The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2009/2009_04723.htm

Full post as published by New York Public Personnel Law on June 19, 2009 (boomark / email).