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Suspension without pay

By Harvey Randall, Esq.

Suspension without pay
Vargo v Safir, App. Div., First Dept., 291 A.D.2d 268

Although the Appellate Division did not have any difficulty in affirming New York City Police Commissioner Howard Safir's imposing the penalty of dismissal after finding police officer James Vargo guilty of misconduct, it did find that there was a question as to whether Vargo was entitled to back pay.

The court said that it appeared that Vargo had been suspended without pay for more than 30 days after he was served with disciplinary charges filed against him.

Civil Service Law Section 75.3-a, in pertinent part, provides that a New York City police officer may be suspended without pay for thirty days pending the determination of disci­plinary charges. CSL Section 75.3-a further provides that if a New York City police officer is found guilty of the charges, the Commissioner "may punish the police officer pursuant to the provisions of Sections 14-115 and 14-123 of the Administrative Code of the City of New York."

Accordingly, said the court, and the Department agreed, it was necessary to remand the matter to the Department to determine if Vargo was entitled to back salary for any period of suspension without pay in excess of 30 days.

The Appellate Division sustained the Commissioner's determination that Vargo was guilty of being the driver of a motor vehicle involved in "a hit-and-run" while off duty and that he used illegal drugs. Under the circumstances, said the court, "[t]he penalty of dismissal does not shock our sense of fairness, citing Kelly v Safir, 96 NY2d 32, in support of its ruling.

Full post as published by New York Public Personnel Law on January 22, 2008 (boomark / email).