Dismissal of Firefighter Upheld
The Petitioner had been a volunteer firefighter with the Bethpage Fire Department since 1987. He was also employed as an Emergency Dispatcher and Maintenance Worker by the Bethpage Fire District. In 2005, while at a training session, he switched Hurst tool (jaws of life) tips from a Syosset Fire Department vehicle with the ones on a Bethpage Fire Department vehicle. The switch of tips was discovered in 2006. He was suspended from the Bethpage Fire Department on November 15, 2006. He was subsequently informed of the charges against him in May of 2007. An Article 75 Civil Service Hearing was held on February 7, 2008 and March 4, 2008. The Hearing Officer determined that there was substantial evidence to establish the charges against the claimant concerning the switching of the tips. On September 10, 2008, he was formally terminated from the Bethpage Fire Department and the Bethpage Fire District.
The Petitioner brought an Article 78 Petition alleging that he was improperly suspended and subsequently terminated from the Bethpage Fire Department and Bethpage Fire District. He alleged that he was denied due process because he was not served timely notice of the charges against him in violation of New York General Municipal Law § 209-L. He also alleged that the decision by the Board of Commissioners to terminate him was arbitrary, capricious and unwarranted and not based on substantial evidence. In addition, he alleged that even if the determination was supported by substantial evidence, discharging him from the Fire Department and Fire District was a disproportionate punishment.
The Petition was heard by Judge Michele Woodard. She determined that the Petitioner was not denied due process. She transferred to the Appellate Division the determination of whether the decision of the Board of Commissioners was based on substantial evidence and whether the punishment of termination was disproportionate.
The Appellate Division, Second Department, found that the determination that the Petitioner was guilty of misconduct was supported by substantial evidence, and therefore, could not be set aside.
A concern in the case had been whether the terminating of the Petitioner, after over 20 years of service, would be considered disproportionate by the Court. The standard to be applied by the Court is whether the determination was shocking to one’s sense of fairness. At the oral argument, it initially appeared that the court would find terminating the Petitioner for this one incident was “shocking”. However, the court allowed an explanation during the oral argument of the seriousness and potential consequences of having different tips on a Hurst tool if a rescue was needed. The Court found that the termination of the Petitioner was not so disproportionate to the offense as to be shocking to one’s sense of fairness.