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A probationary employee may terminated without a hearing or explanation absent dismissal in violation of law or for an unconstitutional purpose

A probationary employee may terminated without a hearing or explanation absent dismissal in violation of law or for an unconstitutional purpose
Matter of Bienz v Kelly, 2010 NY Slip Op 04035, decided on May 11, 2010, Appellate Division, First Department

New York City Police Commissioner Raymond Kelly terminated probationary police officer Christopher E. Bienz based on Bienz?s alleged substandard performance.

Dismissing Bienz?s petition seeking reinstatement to his former position, the Appellate Division said that "[i]t is well settled that a probationary employee may be discharged without a hearing* and without a statement of reasons in the absence of any demonstration that [the probationer's] dismissal was for a constitutionally impermissible purpose or in violation of statutory or decisional law."

Here, said the court, Bienz failed to provide any evidence of bad faith. Further, the Appellate Division said that Bienz?s allegations that he was the target of animosity by some police department personnel did not rise to the level of constitutionally impermissible conduct, or conduct in violation of any law or statute.

In the view of the court, Bienz?s ?substandard performance history? provided a rational basis for Commissioner Kelly?s determination, especially as Bienz ?was given ample opportunity to improve.?

Another element in this case noted by the Appellate Division: Bienz was terminated in lieu of facing formal charges and specifications of misconduct. In this regard, however, the court ruled that Bienz ?only raises factual disputes that do not entitle him to a hearing? and do not demonstrate bad faith on the part of Commissioner.

N.B. In some instances the rules of the civil service commission having jurisdiction may impose limitations controlling the termination of an individual during his or her probationary period. The Scherbyn case [Scherbyn v Wayne-Finger Lakes BOCES, 77 NY2d 753], illustrates this exception to the general rule permitting the dismissal of probationary employees.

In Scherbyn it was held that where the rules of a civil service commission specifically set out the reasons for which a probationary employee may be dismissed, the appointing authority's broad discretion with respect to terminating the services of probationers is subject to the limitations imposed by those standards.

* Case law indicates that a probationary employee may be terminated at any time after the completion of his or her minimum period of probation prior to his or her completion of the maximum period of probation unless otherwise provided by a collective bargaining agreement negotiated pursuant to the Taylor Law [Civil Service Law Article 14]. In contrast, if the probationer has not yet completed his or her minimum period probation, he or she is entitled to ?notice and hearing? as a condition precedent to termination on the theory that the individual is entitled to a minimum period of service to demonstrate his or her ability to satisfactorily perform the duties of the position.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04035.htm

Full post as published by New York Public Personnel Law on May 12, 2010 (boomark / email).