Matter of Duncan v Kelly

[*1] Matter of Duncan v Kelly 2005 NY Slip Op 51558(U) Decided on September 27, 2005 Supreme Court, New York County Ling-Cohan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 27, 2005
Supreme Court, New York County

In the Matter of Myron Duncan, Petitioner,

against

Raymond Kelly, as Police Commissioner of the City of New York, the Police Department of the City of New York, and the City of New York, Respondents.



104079/04

Doris Ling-Cohan, J.

Background

Petitioner brings this Article 78 Proceeding to annul the determination of respondents terminating him from his position as a probationary police officer. He seeks reinstatement to that position with full back pay, benefits and seniority.

Petitioner, Myron Duncan, was hired as a probationary police officer by the respondent New York City Police Department (NYPD), sued as The Police Department of the City of New York, on or about July 2, 2001 (Verified Answer, Affidavit of Rafael Pineiro [Pineiro Aff.], at ¶ [*2]6). Petitioner completed his recruit training at the Police Academy and was then assigned to patrol duties with the 122nd Precinct. In or about March 2003, the NYPD's Internal Affairs Bureau (IAB) began an investigation of allegations it received from the Department's Cold Case Squad that, prior to his employment as a probationary police officer, petitioner had been involved in criminal activity, including an incident of attempted fraudulent use of a credit card to obtain merchandise from the Staten Island Mall Sears department store on or about April 27, 2000 (Pineiro Aff,, at ¶¶ 7,8; EMD[FN1] 0004) . The IAB substantiated that petitioner had been involved in the attempted credit card fraud incident at Sears (Pineiro Aff., at ¶ 7).

As a part of its investigation, the IAB conducted an official interview of petitioner pursuant to Section 206-13 of NYPD's Patrol Guide (PG) on or about July 15, 2003 (Pineiro Aff., at ¶ 8; EMD 0005). The IAB concluded that, during his PG 206-13 interview, petitioner, who was represented by counsel, made false and misleading statements concerning his participation in and knowledge of the incident of attempted credit card fraud at Sears (Pineiro Aff., at ¶ 8; EMD 0005, 0021). Petitioner admits that he was in the Sears store on the day of the incident, but denies any knowledge of attempted credit card fraud (Verified Petition, at ¶ 20; EMD 0005, 0022). He also denies purchasing a new shirt at the Staten Island Mall after leaving the Sears store, discarding his original shirt and changing into the new shirt (EMD 0005, 0009 - 0010). No criminal charges have been brought against petitioner based upon the incident (EMD 0005).

As a result of the IAB investigation, petitioner was placed on modified assignment status, in which he was denied the use of a weapon, on or about July 15, 2003. Shortly thereafter, on July 21, 2003, petitioner was transferred from patrol duties with the 122nd Precinct to a non-patrol position with the Staten Island Housing Unit, where he monitored video cameras for criminal and unusual activity (see EMD 0004, 0025).

The Chief of Personnel of the NYPD, Rafael Pineiro, reviewed materials concerning petitioner's employment history, including materials concerning the IAB investigation, with members of the Personnel Bureau's EMD (Pineiro Aff., at ¶¶ 4,5). In a memorandum dated November 25, 2003, based upon his review of petitioner's conduct and performance, Chief Pineiro recommended to the First Deputy Commissioner that petitioner's employment as a probationary police officer be terminated (Pineiro Aff., at ¶¶ 2,5; EMD 0004 - 0006). Chief Pineiro based his recommendation that petitioner be terminated from the NYPD, upon petitioner's false and misleading statements concerning the attempted credit card fraud incident during his PG 206-13 interview by the IAB (Pineiro Aff., at ¶ 8). Specifically, Chief Pineiro concluded, in his November 25, 2003 memorandum, that the IAB investigation has "shown Probationary Police Officer Duncan to be a deceptive and cunning individual ... Probationary Police Officer Duncan lied to the Internal Affairs Bureau Investigators during a Patrol Guide 206-13 hearing. He deliberately gave false and misleading information. Probationary Police Officer Duncan has demonstrated himself to be a person of poor character and questionable [*3]integrity" (EMD 0006). In addition, Chief Pineiro noted that petitioner's performance as a probationary police officer had been marginal (EMD 0005). Petitioner received eight demerit cards during his tenure at the Police Academy, resulting in one command discipline (id.; see also EMD 0036). Petitioner was rated "below standards" in an interim evaluation for the period of May 2, 2003 to July 21, 2003 by the Commanding Officer of the 122nd Precinct (Pineiro Aff., at ¶ 9; EMD 0005, 0028 - 0031). Petitioner's squad supervisor indicated that his performance "has been marginal at best" (EMD 0028).

In a First Endorsement, dated December 5, 2003, the First Deputy Commissioner concurred with Chief Pineiro's recommendation to terminate petitioner (EMD 0002). On or about December 15, 2003, respondent Police Commissioner Raymond W. Kelly (Police Commissioner) approved the recommendation to terminate petitioner (Pineiro Aff., at ¶ 2; EMD 0002). In a letter dated December 18, 2003, the Director of the NYPD Employee Management Division summarily advised petitioner that his services as a probationary police officer with the Department had been terminated, effective later that day (Verified Pet., Ex. B).

On or about March 16, 2004, petitioner brought this Article 78 Proceeding, seeking, among other things, to annul respondents' determination terminating his employment as a probationary police officer. In a First Interim Order, dated October 13, 2004, this Court directed respondents to produce, for in camera inspection, certain documents related to their determination to terminate petitioner's employment, including, but not limited to, Chief Pineiro's November 25, 2003 memorandum (the Pineiro memorandum) and all documents referred to therein to support the NYPD's determination. Respondents produced the requested documents. After conducting an in camera inspection, this Court issued a Second Interim Order, dated March 23, 2005, which provided, among other things, that respondents must produce to petitioner the Pineiro memorandum and certain supporting documents "redacted of any information which might potentially identify any confidential law enforcement techniques or sources, or which might compromise an on-going or potential investigation or any on-going prosecution." This Court prescribed a schedule for petitioner to file a memorandum of law or supplemental papers concerning the documents produced by respondents and for respondents to file a memorandum of law in reply. This schedule was amended in a Third Interim Order, dated April 15, 2005. This Court has received, reviewed and considered all of the documents and memoranda submitted pursuant to the above-referenced interim orders in rendering its decision on this matter.

Discussion

The New York State Constitution, article V, § 6 ("merit and fitness clause") furnishes the guiding principle that "[a]ppointments and promotions in the civil service of the state and all of the civil divisions thereof *** shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive." The purpose of the probationary period is to provide a trial period to ascertain an individual's merit and fitness to perform on the job, after passing a competitive examination (see Matter of Professional, Clerical, Tech. Empl. Assoc. v Buffalo Bd. of Educ., 90 NY2d 364, 375 [1997]; Matter of Albano v Kirby, 36 NY2d 526, 531 [1975]). Petitioner, as a probationary police officer, could be terminated without a hearing and a statement of reasons, so long as the dismissal was not in bad faith, meaning for a constitutionally impermissible purpose or in violation of statutory or decisional law (see Matter of York v McGuire, 63 NY2d 760 [1984]; [*4]Matter of Talamo v Murphy, 38 NY2d 637, 639 [1976]; Matter of Witherspoon v Horn, 19 AD3d 250 [1st Dept 2005]; Matter of Hildebrand v Kerik, 305 AD2d 181, 182 [1st Dept 2003]; Matter of Nelson v Abate, 205 AD2d 454, 455 (1st Dept 1994); Matter of Cortijo v Ward, 158 AD2d 345 [1st Dept 1990]; Matter of Rainey v McGuire, 111 AD2d 616, 618 [1st Dept 1985]). Petitioner has the burden to prove that he was terminated in bad faith, and mere conclusory assertions and speculation do not suffice to sustain this burden (see Matter of Withersponn v Horn, 19 AD3d 250; Matter of Thomas v Abate, 213 AD2d 251 [1st Dept 1995]; Matter of Cortijo v Ward, 158 AD2d 345, supra; Matter of Rainey v McGuire, 111 AD2d at 618).

The Police Commissioner has broad authority to discipline members of the police force and to impose penalties, including dismissal from the force (see Administrative Code of City of NY § 14-115; Matter of Montella v Bratton, 93 NY2d 424 [1999]). Significantly, courts defer to the Police Commissioner's determinations concerning the discipline of police officers, as he is "'accountable to the public for the integrity of the Department'" (Trotta v Ward, 77 NY2d 827, 828 [1991], quoting Matter of Berenhaus v Ward, 70 NY2d 436, 445 [1987]). The Police Commissioner had ample justification for terminating petitioner's employment as a probationary police officer, based upon his false and misleading statements during his official IAB interview and his performance deficiencies, while in the Police Academy and working at the 122nd Precinct.

Petitioner asserts, however, that his summary dismissal by the respondent Police Commissioner was procedurally defective. Specifically, petitioner asserts that he was terminated solely due to the alleged credit card fraud incident at Sears, which occurred prior to his employment with the NYPD. Petitioner maintains that only the Department of Citywide Administrative Services (DCAS), not the Police Commissioner, had the authority to investigate this pre-hiring conduct and terminate him based upon such conduct. He relies upon Section 50 (4) (h) of the Civil Service Law which provides, in pertinent part, as follows: "... 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 ..."

New York City Charter § 811 provides that the Commissioner of DCAS "... shall have all the powers and duties of a municipal civil service commission provided in the civil service law or in any other statute or local law ...". This delegation includes the authority "[t]o investigate applicants for positions in the civil service; to review their qualifications, and to revoke or rescind any certification or appointment by reason of the disqualification of the applicant or appointee under the provisions of the civil service law, and the rules of the commissioner or any other law..." (NY City Charter § 814 [a][6]; see also Civil Service Law § 50 [4][d]).

Petitioner relies primarily upon two decisions to support his argument that DCAS, not the Police Commissioner, was authorized to terminate his employment (see Matter of Umlauf v Safir, 286 AD2d 267 [1st Dept 2001]; Borges v McGuire, 107 AD2d 492 [1st Dept 1985]). For the reasons discussed below, these decisions are distinguishable from the instant case. In Matter [*5]of Umlauf v Safir (286 AD2d 267, supra), the Appellate Division annulled the determination of the Police Commissioner terminating the employment of a probationary police officer, after concluding that the Commissioner lacked the authority to terminate the officer for pre-hiring conduct. Instead, the Court concluded that the authority to terminate an employee in such circumstances is "statutorily vested" in the Commissioner of DCAS (id. at 267-268, citing Civil Service Law § 50 [4][h] and Borges v McGuire, 107 AD2d 492, supra).

Umlauf, however, is not controlling with respect to the instant matter. The decision of the Appellate Division in Umlauf does not discuss the facts of the case, nor does it explain the specific factual underpinning for its decision The respondent's brief submitted by the Police Commissioner to the Appellate Division, annexed to petitioner's reply papers, indicates that the police officer involved in the Umlauf matter had been rejected from a position with the Baltimore Police Department due to a prior incident of "employee theft". In the course of interviews with NYPD personnel, including a psychologist, the officer admitted that he had stolen rain gear from a local fire department where he had worked as a volunteer, and that, during his high school and college years, he had been with friends when they stole several items, including a cement lawn statue and several signs (Pet. Reply to New Matter, Ex. A [Resp. Br. in Matter of Umlauf v Safir], at 4-5). The officer characterized these incidents as childhood "pranks". The psychologist concluded, based upon the officer's statements concerning the prior theft incidents, that he was not psychologically suited for police work, a conclusion adopted by the NYPD's Chief of Personnel as a reason for recommending his termination (id., at 5-6). In contrast to petitioner in the instant matter, however, the officer involved in Umlauf admitted that he was involved in the prior incidents of theft and was not alleged to have made false statements concerning those incidents during his interviews while employed by the NYPD, as was petitioner.

Respondents emphasize that the Police Commissioner terminated petitioner based upon the false and misleading statements he made to the IAB during the PG 206-13 interview while he was employed by the NYPD, not based upon his participation in the alleged credit card fraud before he was hired. Further, there is no merit to petitioner's assertion that respondents' reliance on his alleged false statements during the IAB interview represents an improper attempt to "transform alleged pre-hiring conduct into post-hiring conduct" (Petitioner's Reply Memo at 10). Petitioner's false and misleading statements during the IAB official interview violate PG Procedure No. 203-08[FN2] and constitute valid independent reasons for terminating his employment (see Matter of Swinton v Safir, 93 NY2d 758, 762-763 [1999] [petitioner failed to establish that bad faith motivated his termination as a probationary police officer for making false statements [*6]to the IAB concerning an incident involving a women whom he had dated]; Thomas v City of New York, 169 AD2d 496 [1st Dept 1991] [upholding dismissal of corrections officer based upon his filing of a false report concerning another officer, who had been accused of assaulting an inmate]; Matter of Rainey v McGuire, 111 AD2d 616, supra [upholding demotion of probationary police sergeant based upon, among other things, false statements he made during an internal NYPD investigation]). Contrary to petitioner's assertions, the NYPD's IAB is the proper body to investigate allegations of criminal conduct by a police officer prior to joining the Department.

Furthermore, in addition to petitioner's false and misleading statements during his IAB interview, his marginal performance during his probationary period provided a further basis for his termination. Petitioner accrued an excessive number of demerit cards while training at the Police Academy and was rated "below standards" in his last interim performance evaluation from the 122nd Precinct. By contrast, in Umlauf, there was no evidence concerning the performance of the terminated police officer and this was not asserted as a reason for his termination.

Borges v McGuire (107 AD2d 492, supra) is, likewise, distinguishable. Borges involved the termination of a non-probationary police officer, after a hearing in which she was found guilty of charges that she had posed for photographs published in pornographic magazines, prior to her becoming an officer during a period when she was a civilian employee of the NYPD, and that she had failed to report this to the Department. The Appellate Division held that the Police Commissioner lacked jurisdiction to bring a disciplinary proceeding against the officer and to terminate her employment based upon conduct which occurred prior to her appointment to the police force. Instead, the Court held that the New York City Personnel Director[FN3] is authorized to investigate the background and qualifications of civil service employees and to revoke their certification and terminate their employment based, among other things, upon misconduct which occurred prior to their appointment, in accordance with Civil Service Law § 50 (4) (h) and the relevant provisions of the New York City Charter (Borges v Mcguire, 107 AD2d at 496-500). Nevertheless, the Appellate Division noted that the Police Commissioner had jurisdiction to discipline the officer for failing to report the photography sessions to a NYPD interviewer after she joined the force (id. at 500). The Court concluded, however, that there was no substantial evidence that the officer wilfully failed to report the photography sessions, as she did not consider them to be "employment" which she was required to report to the NYPD (id. at 500-501).

Significantly, the decisions in which the DCAS, or its predecessor agency, the Department of Personnel, has revoked the certification of police officers and other civil service employees have involved situations in which employees have provided false or misleading information on their applications, examinations, or in the course of the application process (see, e.g. Matter of Angelopoulos v New York City Civil Serv. Comm., 176 AD2d 161 [1st Dept 1991], lv denied 79 NY2d 751 [1991] [upholding determination of New York City Civil Service Commission disqualifying a police officer after an investigation disclosed that he omitted from his application questionnaire that he had a felony warrant, issued against him for desertion from [*7]the army and had been arrested on this warrant and had also failed to disclose that he had used an alias]; Matter of Kowalski v City Civil Service Commission, 52 AD2d 769 [1st Dept 1976] [upholding determination disqualifying police officer after investigation revealed that he had been dismissed as a corrections officer because of a criminal conviction and failing to safeguard a weapon, resulting in the death of a friend]). By contrast, respondents herein have not alleged that petitioner made any false statements in his application for employment as a probationary police officer[FN4].

In summary, the Police Commissioner had ample justification for terminating petitioner's employment, based upon his conduct while serving as a probationary police officer. Petitioner has failed to sustain his burden to establish that respondents terminated his employment in bad faith.

Accordingly, it is

ORDERED AND ADJUDGED that the petition is denied and the proceeding is dismissed; and it is further

ORDERED that, within thirty days of entry, respondents shall serve upon all parties a copy of this decision, order and judgment, together with notice of entry.

This constitutes the Decision, Order and Judgment of the Court.

Dated: September 27, 2005ENTER:

Doris Ling-Cohan, JSC

Check One: [X] FINAL DISPOSITION [ ] NON-FINAL DISPOSITION

Check if Appropriate: [ ] DO NOT POST Footnotes

Footnote 1: The abbreviation "EMD" refers to the NYPD's Bureau of Personnel Employee Management Division. The documents referred to with the prefix "EMD" are from the file on this matter retained by the EMD, which were redacted pursuant to the Second Interim Order of this Court, dated March 23, 2005. This order further directed respondents to produce the redacted documents in the EMD file to petitioner.

Footnote 2: Patrol Guide Procedure No. 203-08 provides, "The making of false statements will result in dismissal from this Department, absent exceptional circumstances. Examples of false statements include, but are not necessarily limited to, lying under oath during a civil, administrative or criminal proceeding as well as during an official Department interview conducted pursuant to Patrol Guide procedure 206-13, 'Interrogation of Members of the Service.' Exceptional circumstances will be determined by the Police commissioner on a case by case basis" (Respondents' Memorandum of Law in Response to Petitioner's Supplemental Memorandum, Appendix A).

Footnote 3: The Commissioner of DCAS currently has the authority previously delegated to the Personnel Director (see NY City Charter § 814 [a] [6]; Matter of Montella v Bratton, 93 NY2d at 428 n 1).

Footnote 4: Petitioner specifically chose to seek review of the Police Commissioner's determination to terminate his employment by bringing an Article 78 Proceeding. He did not pursue the alternative remedy of seeking review of his termination by DCAS, based upon the theory that he now asserts, namely, that DCAS has exclusive jurisdiction over this matter, as his termination resulted from "pre-hiring" conduct (cf. Matter of Johnson v Triborough Bridge and Tunnel Auth., 97 NY2d 627 [2001] [probationary employee improperly appealed his dismissal to the Civil Service Commission, instead of bringing article 78 Proceeding]; Matter of Montella v Bratton, 93 NY2d 424, appeal after remand sub nom. Matter of Montella v Safir, 290 AD2d 261 [1st Dept 2002] [New York City Civil Service Commission lacks jurisdiction to hear appeal of terminated police officer, as this was the province of the Police Commissioner; Appellate Division rules that Article 78 Proceeding later brought by petitioner should be dismissed as time-barred]).