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Conducting a private business while ?off-duty?

By Harvey Randall, Esq.

Conducting a private business while ?off-duty?
Cook v Von Essen, App. Div., First Dept., 283 A.D.2d 214

Sometimes a public employee will operate a private business "on the side." Many public employers require the individual to obtain the prior approval of his or her appointing authority in order to conduct such activities. The failure to obtain such approval when required by the jurisdiction could have serious consequences, as New York City firefighter Darren Cook learned.

Cook was dismissed from his position after a disciplinary hearing. The Administrative Law Judge [ALJ] found that Cook had concealed his operating an outside pool business from the Department and then, at a disciplinary hearing, continued his attempt at concealment by advancing "the less than creditworthy claim that his pool services were rendered free of charge."

In addition, the ALJ found that had Cook conducted his pool business while on a paid medical leave. In the words of the ALJ, it is a "gross abuse of public trust for uniformed workers to engage in unauthorized employment while on medical leave."

The Appellate Division said that the record demonstrated that Cook "had violated [Fire] Department rules and regulations by engaging in extra-departmental employment while on medical leave on four separate dates, and that he operated an outside pool maintenance business for three years without seeking the necessary departmental approval."

Notwithstanding his unblemished 13-year record with the Department, the court said that "[t]here is no basis upon which we can interfere with the determination to terminate [his] from his employment with the City.?

Full post as published by New York Public Personnel Law on January 18, 2008 (boomark / email).