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

Labor & Employment Law

: New York Public Personnel Law

Mitigating circumstances considered by hearing officer in setting disciplinary penalty

Mitigating circumstances considered by hearing officer in setting disciplinary penalty
Matter of Clifford v Kelly, 2009 NY Slip Op 00042, decided on January 8, 2009, Appellate Division, First Department

New York City Police Officer Kathleen Clifford was found guilty of the departmental infraction of ?failure to comply with a superior officer's order? Police Commissioner Raymond W. Kelly imposed the forfeiture of 10 vacation days of her disciplinary penalty.

Clifford had missed roll call and arrived at her assigned stationhouse 25 minutes late for duty. Her supervising officer ordered her to proceed directly to the locker room and change into her uniform. Clifford, however, rather than going directly upstairs to the locker room, walked down a hallway to the muster room to pick up a "cookie sheet," which lists officers' assignments prior to a tour of duty, but not changed assignments. When her supervisor repeated his directive that she go to the locker room and change, Clifford then complied.

The hearing officer sustained the charge of disobeying an order of a superior officer, but noted as ?mitigation? with respect to the penalty he recommended that "it is not likely that [Clifford] would have intentionally disobeyed his command," but rather, "it is more likely that she was trying to better prepare for her tour when she momentarily detoured to the back muster room before going upstairs to the locker room," and thus, "her actions were in good faith, work-related, and de minimis in nature."

The Appellate Division sustained the Commissioner?s decision. The court, however, stated that ?The Police Department is a paramilitary organization (see Matter of Caruso v Ward, 72 NY2d 432, 439 [1988]), and as such, depends for its effectiveness on prompt obedience to lawful orders under a hierarchical command structure. Indeed, the commands often have life or death consequences for officers and civilians.?

In this instance, said the court, the command at issue did not rise to that level of importance was taken into consideration by the Commissioner in imposing a relatively minor penalty, which is not so disproportionate to the offense as to be shocking to one's sense of fairness, particularly considering the Commissioner's great leeway in matters of police discipline.

Decision posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_00042.htm

Full post as published by New York Public Personnel Law on January 15, 2009 (boomark / email).