Labor & Employment Law

Quid pro quo not required to validate disciplinary settlement agreement

By Harvey Randall, Esq.

Quid pro quo not required to validate disciplinary settlement agreement
Matter of Newman v Fire Dept. of the City of New York, 2008 NY Slip Op 00172, Decided on January 10, 2008, Appellate Division, First Department

It appears that Joseph P. Newman settled pending disciplinary charges filed against him by entering into a ?settlement agreement? with the New York City Fire Department. The agreement that he signed extended his one-year probationary period as a firefighter to 18 months. The agreement also stipulated that Newman waived his right to a pre-termination disciplinary hearing in the event he tested positive for ?the presence of alcohol in [his] blood or urine which could lead to termination.?

The court said that contrary to Newman?s argument, it was not necessary that the settlement agreement be a quid pro quo for the dismissal of pending disciplinary charges, so long as Newman?s waiver of rights to a pre-termination hearing was knowingly and freely made.

Contrasting the ?ineffective agreement? considered in Vega v Civil Service Commission, 385 F Supp 1376, an agreement that the Appellate Division said ?merely spelled out statutory rights not authorizing the appointee?s termination,? the court ruled that Newman had signed a settlement agreement that gave the Department new rights with respect to its ability to terminate him and thus it was enforceable.

Citing Barry v City of New York, 21 AD3s 551, the court ruled that Newman was still a probationary employee at the time of his failed a test for ?alcohol in his blood or urine,? and therefore he could be terminated by the Fire Department without a pre-termination hearing because he tested positive for such substance.

Full post as published by New York Public Personnel Law on January 15, 2008 (boomark / email).