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Employee terminated after making a false statement on his employment application

Employee terminated after making a false statement on his employment application
Matter of Wilson v Town of Minerva Town Bd., 2009 NY Slip Op 06214, decided on August 13, 2009, Appellate Division, Third Department

The Town of Minerva appointed Philip Wilson as a maintenance mechanic in 2001. When completing his employment application, Wilson answered ?no? when asked if he had ever "been convicted of a crime (misdemeanor or felony)."

This was inaccurate as in 1999 Wilson had been convicted of driving while intoxicated (DWI) in 1999. In 2007, Wilson was again arrested and convicted for DWI. As a result, Minerva filed §75 disciplinary charges against Wilson alleging ?incompetence due to his convictions and misconduct due to his answer on the employment application.?* Ultimately the Hearing Officer found Wilson not guilty of the incompetence charge but guilty of misconduct and recommended his termination. Minerva?s Town Board, however, found Wilson guilty of both charges and terminated his employment.

In response to Wilson?s challenge to the Board?s determination, the Appellate Division said that the termination of his employment ?must be upheld if supported by substantial evidence.? Noting that Wilson admitted that he was twice convicted of DWI [and that] [h]is job duties as a maintenance mechanic required him to operate motor vehicles during the course of his employment,? the court sustained the boards determination.

The Appellate Division noted that the Town's insurance agent testified that ?pursuant to underwriting guidelines for the Town's insurance carrier, a person with two DWI convictions is not an acceptable driver and if the Town continued to employ such a person its insurance carrier would not renew the current policy.? Further, noted the court, ?The nonrenewal would occur regardless of whether that employee drove Town vehicles or drove his or her own vehicle on Town business.?**

The court also found that substantial evidence also supported the Town?s the finding of misconduct in that the employment application contains a false statement regarding petitioner's criminal history.***

Finally, the Appellate Division said that the misconduct charge was not time-barred, as Wilson's actions could constitute the crime of offering a false instrument for filing in the second degree.

Under the circumstances, said the court, the penalty of termination is not so disproportionate as to shock our sense of fairness and dismissed Wilson?s appeal.

* 50.4 of the Civil Service Law provides that ?the state civil service department or appropriate municipal commission may investigate the qualifications and background of an eligible after he has been appointed from the list, and upon finding facts which if known prior to appointment, would have warranted his disqualification, or upon a finding of illegality, irregularity or fraud of a substantial nature in his application, examination or appointment, may revoke such eligible's certification and appointment and direct that his employment be terminated, provided, however, that no such certification shall be revoked or appointment terminated more than three years after it is made, except in the case of fraud.?

** While the Town would be able to secure insurance through another carrier, the Town?s insurance agent indicated that such insurance would be at a higher cost and would provide reduced coverage.

*** Wilson testified at the disciplinary hearing that ?he was unaware that DWI was a crime, but also testified that his wife completed the application and he failed to read it before signing it,? which testimony the Hearing Officer found to be ?incredible.?

The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06214.htm

Full post as published by New York Public Personnel Law on August 14, 2009 (boomark / email).