Home -> Law Blog Directory -> Labor & Employment Law Blogs -> New York Public Personnel Law

Labor & Employment Law

: New York Public Personnel Law

Tainted testimony a basis for overturning a disciplinary determination

Tainted testimony a basis for overturning a disciplinary determination
Buric v Safir, App. Div., 285 A.D.2d 255, leave to appeal dismissed, 98 NY2d 688

John Buric, a New York City police officer, found guilty of administrative disciplinary charges of assault and lying, was dismissed from his position.

The Appellate Division vacated this determination. Noting that ?the threshold required to annul the Commissioner?s determination is a very high one,? the Court said that the Commissioner?s findings in this case clearly demonstrate, on this record, the lack of any rational basis.

According to the court:

The hearing examiner based her decision on the testimony of Mr. Dunham and the alleg­edly corroborating testimony of Ms. Fwilo, Mr. Small and Mr. Henson. Mr. Dunham, however, told different stories to different people .... The testimony of the three ?corrobo­rating witnesses? was incredible since none of them were present ... at the time this incid­ent was alleged to have occurred.

Astonishingly, said the court, the hearing examiner ignored key details set out in the record in making her determination, instead lauding the credibility of Mr. Dunham, Ms. Fwilo, Mr. Small and Mr. Henson.

Annulling the Commissioner?s finding Buric guilty of charges of assault and lying, the Appellate Division addressed another charge, Buric?s removal of a prisoner from a cell without permission.
Buric, said the court, admitted he was guilty of removing the prisoner as charged. Ac­cordingly, the court found it was necessary to remand the matter to the Commissioner for the purpose of imposing of an appropriate lesser penalty based on Buric?s admission with respect to the charges concerning the removal of the prisoner.

The language used by the court in remanding the matter appears to signal its view that dismissing Buric for this offense would not be an appropriate penalty under the circumstances.

Subsequently Buric asked for ?back pay for the period of his improper termination without reduction for outside earnings during this period, (2) back pay for the first 30 days of his earlier suspension, and (3) interest on all back pay due and owing [Buric v. Safir, 4 A.D.3d 160].

The Appellate Division affirmed Supreme Court dismissal of Buric?s petition, holding that:

1. With respect to the reduction for outside earnings during the period of the improper termination, Civil Service Law § 77, which prohibits such a reduction, is of no help to Buric as, by its terms, it applies to employees who were removed ?in violation of the provisions of this chapter.? Buric, however, was terminated pursuant to Administrative Code of the City of New York §14-115.

2. With respect to the first 30 days of the suspension, Buric could be suspended, without pay, for a period not exceeding 30 days pending the determination of the disciplinary charges preferred against him. Although two of the three charges were determined to be unfounded in the 285 AD2d 255, Buric was ultimately penalized five vacation days on the third charge, removing a prisoner from a holding cell without authority. The court rejected Buric?s argument that he would not have been suspended even one day had this been the only charge as ?The operative statute (Administrative Code § 14-123) makes no distinctions based on the seriousness of the charges or severity of the penalty, and entitles the police officer to full back pay from the date of suspension only if not ?convicted . . . of the charges.?

3. As to Buric?s demand for interest on the award of back pay, the Appellate Division said that Administrative Code §14-123) makes no provision for the payment of interest.

Full post as published by New York Public Personnel Law on May 28, 2010 (boomark / email).