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Labor & Employment Law

: New York Public Personnel Law

By Harvey Randall, Esq.

Misuse of the employer's records
McKernan v Safir, App. Div., 1st Dept 292 A.D.2d 281; motion for leave to appeal denied, 98 N.Y.2d 613

New York City police sergeant Craig D. McKernan was served with disciplinary charges including charges alleging that he used the Police Department's computer system to run license plate inquiries for purposes other than Department business and that he did so with knowledge that the person making the inquiries was involved in criminal activities. McKernan admitted that he was guilty of the charges related to the misuse of the Depart­ment's computer system. The penalty imposed: dismissal.

Dismissing McKernan's appeal, the Appellate Division commenting that: ?Notwithstanding [McKernan's] many prior awards for police work, the penalty of dismis­sal does not shock our sense of fairness, particularly given that [McKernan] was also found guilty of failing to safeguard his firearm while off duty, and also in view of his prior disciplinary record.?

The court, however, remanded the case to the Police Department for a determination as to McKernan's entitlement to back pay in view of the fact that he was place on leave with­out pay for more than the thirty-day period authorized by Section 75 of the Civil Service Law.

Why was it necessary to remand this "back pay" question? Because, said the court, the Department made "no response" to McKernan's claim that the Supreme Court's determi­nation denies him back pay to which he is entitled under Civil Service Law Section 75[3-a].

Section 75[3-a] provides for the suspension of New York City police officers without pay pending determination of disciplinary charges and the determination of the penalty to be imposed. It provides that "[p]ending the hearing and determination of charges of incompetency or misconduct, a police officer employed by the police depart­ment of the City of New York may be suspended without pay for a period not exceeding thirty days. If the officer is found guilty of the charges, the police commissioner may imposed any of the penalties set out in Sections 14-115 and 14-123 of the City's Admin­istrative Code.

This is another demonstration of the fact that unless a collective bargaining agreement provides otherwise, an individual suspended without pay pending the determination of disciplinary charges pursuant to Section 75 of the Civil Service Law must be restored to the payroll after thirty days, regardless of whether or not he or she is permitted to return to work.

Some collective bargaining agreements specifically authorize the suspension of an employee without pay pending a determination of the charges. This, in effect, means that the employee may be suspended for a period greater than the one specified by law, such as the 30-day limit of Section 75 of the Civil Service Law. Such a "contractual suspension without pay" was an issue in Board of Education v Nyquist, 48 NY2d 97. In this case, the court said that the Taylor Law agreement permitted the suspension of a teacher without pay "pending an investigation and recommendation by the Superintendent of Schools".

The school board, however, continued the teacher in "suspension without pay status" after it had received the Superintendent's recommendation. About 10 months later the teacher was dismissed by the Section 3020-a disciplinary hearing panel after it found the teacher guilty of disciplinary charges.

The court directed the school district to pay the teacher back salary for the period from the date the Superintendent made his recommendation to the Board until the effective date of the teacher's dismissal. Why? Because, said the Court of Appeals, "there (was) no [statutory or contractual] authorization for the Board's suspending the teacher without pay after the Superintendent completed his investigation and made his report" to the Board.

Had the contract permitted the Board to continue the teacher on a suspension without pay, it appears that such a suspension would have been upheld based on the ruling in the Antinore case (Matter of Antinore, 40 NY2d 921). The only limitation seems to be that the employer may not use the suspension without pay as a sword by delaying the pro­ceedings.

Another concern: is an employee against whom charges have been filed entitled to leave with pay in order to participate in a disciplinary hearing? Lita Stein complained to the Commissioner of Education that the Monroe-Woodbury Central School District had unlawfully withheld her salary for a number of days during which she had not performed any teaching duties because she was defending herself in a disciplinary proceeding pursuant to Section 3020-a of the Education Law.

The Commissioner said as Stein's absence was job related, pay for such absence "is open to negotiation" or, in the alternative, may be granted at the discretion of school adminis­trators. The Commissioner, however, pointed out that continuing the accused teacher in paid status during his or her absence from work in connection with the disciplinary hear­ing was not mandated by Section 3020-a [Decisions of the Commissioner of Education 11544].

In contrast, employer and employee witnesses typically will be excused from their regu­lar work assignments to testify in a disciplinary hearing without loss of pay or charges to their leave accruals.

Full post as published by New York Public Personnel Law on February 01, 2008 (boomark / email).