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Same offense, different penalties

Same offense, different penalties
Wagner v Kerik, 298 A.D.2d 322
Jones v Kerik, 298 A.D.2d 308

Two different employees serving in the same agency are charged and found guilty of the same type of misconduct but the appointing authority imposes different penalties on each. Is this something that the courts will find arbitrary? Apparently not, as the Wagner and Jones decisions demonstrate.

New York City police officer John Wagner was served with disciplinary charges alleging that he used excessive force against an individual. Found guilty, the penalty imposed by Police Commissioner Bernard B. Kerik was suspension from duty for 15 days without pay.

Another New York City police officer, Richard Jones was served with disciplinary charges alleging that he "used excessive force against another person." Found guilty, here the penalty imposed on Jones by Police Commissioner Kerik was the forfeiture of seven vacation days.

The Appellate Division, First Department, affirmed the Commissioner's determination that the individuals were guilty of the charges preferred against them and did not object to the fact that different penalty were, respectively, imposed on each despite the fact that the same underlying offense was involved -- use of excessive force by a police officer.

The appointing authority's electing to impose different penalties for essentially the same type of offense sometimes results in an employee filing a law suit objecting to the penalty on the grounds that another employee who committed the same offense received a lighter punishment. Case law suggests that such challenges will receive little sympathy from the courts.

If the court find that the penalty imposed does not offend its sense of "fairness" with respect to nature of the offense, it will typically uphold the penalty notwithstanding the fact that a different penalty was imposed on another individual guilty of the same offense, citing the Pell standard set out in Pell v Board of Education, 34 NY2d 222. In other words the courts do not consider the fact that a different penalty was imposed on another employee charged with the same offense relevant in most instances.

In one case, however, Trotman v Ward, 146 AD2d 236, the Appellate Division was persuaded that a certain penalty was unfair because lesser penalties had been imposed on other employees found guilty of more egregious misconduct.

Other types of "same facts, different results" situations have been considered by the courts. For example, City School District of Tonawanda v Tonawanda Education Association, 63 NY2d 846, involved a situation in which the same facts considered by two different arbitrators but involving two different employees produced different results.

The school district had made layoff decisions that adversely impacted on two employees. Both individuals grieved. The grievances were considered by two different arbitrators.

The first arbitration decision handed down ruled in favor of the employer while in the second case, heard by a different arbitrator and handed down after the first arbitrator had made a ruling, the employee prevailed.

The school district claimed that the first arbitrator's decision should be adopted by the second arbitrator since the same facts were involved and thus the second arbitrator was bound by the first arbitrator's findings.

NYPPL Comment: Would Tonawanda have been disposed to argue that the second arbitrator was bound by the first arbitrator's award had it gone the other way? It is prudent to consider the future impact of an instant position under alternate circumstances in such situations.

The Court of Appeals rejected Tonawanda's theory, holding that both arbitration decisions were to stand.

Full post as published by New York Public Personnel Law on September 21, 2009 (boomark / email).