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Imposing a disciplinary penalty

Imposing a disciplinary penalty
Toth v Nassau County PD, App. Div., 2nd Dept., 296 A.D.2d 575, 302 AD2d 600

Was suspending a police officer found guilty of a number of charges of misconduct without pay for 270 days lawful? After all, the Section 75 of the Civil Service Law limits such a suspension without pay for a period not to exceed two months.

The Appellate Division, Second Department, said it was appropriate under the circum­stances and sustained a 270-day suspension without pay disciplinary penalty imposed by the appointing authority on Nassau County police officer Peter S. Toth after he was found guilty of:

1. Two counts of engaging in conduct unbecoming an officer,

2. One count of using departmental equipment other than in the course of official business,

3. Four counts of engaging in unlawful conduct,

4. Two counts of failing to treat as confidential the official business of the Nassau County Police Department, and

5. One count of making or submitting, or causing to be submitted, a false official commu­nication, record, or statement.

The Appellate Division said that Toth's guilt with respect to these charges were support­ed by substantial evidence in the record.

As to the nature of the penalty imposed, the court said that the Police Department's determination regarding appropriate internal discipline to be imposed is entitled to great deference and, "under the circumstances of this case, will not be disturbed."

Although 75 of the Civil Service Law limits the suspension without pay for a period of not to exceed two months, the Appellate Division, citing Coscette v Town of Wallkill, 281 AD2 479, ruled that the penalty of suspension without pay for 270 days was permis­sible pursuant to Civil Service Law 76(4) and Nassau County Administrative Code 8-13.0.

Section 75 provides, as alternative disciplinary penalties, suspension without pay for not to exceed two months, punishment consisting of either a reprimand; or a fine not to exceed $120; or demotion in grade and title; or dismissal. In contrast, an arbitrator setting a disciplinary penalty pursuant to a contract disciplinary procedure is usually authorized to impose an "appropriate penalty" and is not limited to those prescribed in a statute such as Section 75 of the Civil Service Law.

Full post as published by New York Public Personnel Law on June 13, 2008 (boomark / email).