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

Labor & Employment Law

: New York Public Personnel Law

Appointing authority directed to set a new disciplinary penalty after court vacates a finding of guilt on one of two specifications

Appointing authority directed to set a new disciplinary penalty after court vacates a finding of guilt on one of two specifications
Matter of Borrelli v Kelly, 2009 NY Slip Op 00585, Decided on February 3, 2009, Appellate Division, First Department

New York City Police Commissioner filed disciplinary charges against New York City police officer Robert Borrelli. Specification No. 1 alleged that Borrelli had ?knowing association with a person or organization reasonably believed to be engaged in, likely to engage in or to have engaged in criminal activities.? Specification No. 2 alleged that Borrelli had failed ?to properly safeguard his off-duty firearm.?

Although Borrelli admitted he was guilty of failing to ?properly safeguard his off-duty firearm,? as charged by Specification 2, he contended that he was innocent with respect to Specification 1. The Commissioner found him guilty of both Specification 1 and Specification 2 and imposed as the penalty the forfeiture of 15 vacation day.

Borrelli appealed the Commissioner?s determination with respect to Specification 1.
The Appellate Division sustained Supreme Court?s ruling vacating the Commissioner?s finding Borrelli guilty of Specification No. 1.

The Appellate Division said that the evidence at the disciplinary hearing was ?inadequate to support the finding of guilt? on Specification No. 1 as it established only that Borrelli had infrequent contact with a lifelong friend after the friend was arrested in January 2003 on charges of driving while intoxicated and assault in the third degree.

In the opinion of the Appellate Division, ?Neither that contact, nor [Borrelli?s] appearance at the scene of the friend's subsequent arrest as well as at the precinct at which the friend was being held, in the presence of appropriate police personnel, constituted substantial evidence of [Borrelli?s] guilt of Specification No. 1.?

As but a single penalty was imposed covering both specifications, the Appellate Division remanded the matter for the determination of a new penalty with respect to Specification 2 based on Borrelli plea of guilty to that Specification.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_00585.htm

Full post as published by New York Public Personnel Law on February 09, 2009 (boomark / email).