A police force is a semi-military organization and the appointing authority has “great leeway” is determining an appropriate disciplinary penalty

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A police force is a semi-military organization and theappointing authority has “great leeway” is determining an appropriatedisciplinary penaltySmeraldo v Rater, 55AD3d 1298
Timothy J. Smeraldo brought an Article 78 proceedingchallenging the penalty of termination of his employment with the JamestownPolice Department after he was found guilty of conduct that was disrespectfulof a superior officer. Smeraldo contended that the penalty of termination is sodisproportionate to the offense as to be shocking to one's sense of fairness.In addition, Smeraldo alleged that the Hearing Officer improperly relied upon factsthat were not in evidence.
The Appellate Division rejected Smeraldo’s claim thatpenalty imposed was “shocking to one’s sense of fairness. The court said thatit is well established that courts must uphold the disciplinary penalty imposedby an appointing authority unless, as a law, it is an abuse of discretion,citing Kelly v Safir, 96 NY2d 32.
The Appellate Division said that "A police force is aquasi-military organization demanding strict discipline" and "greatleeway” must be accorded to “determinations concerning the appropriatepunishment, for it is the [Chief of Police] . . . who is accountable to thepublic for the integrity of the Department."
In this instance the Hearing Officer found that Smeraldo hadmade a remark in front of several other officers that was disrespectful of asuperior officer. Further, said the court, “the record establishes that[Smeraldo] has a prior disciplinary record, including a 30-day suspension and ademotion in rank that occurred less than one year prior to the present offense.In addition, the decision reports that Smeraldo that settlement agreement withthe Department for the charge resulting in that suspension and demotion,Smeraldo expressly stated that "he will endeavor not to violate any otherDepartment policy in the future" and that there was evidence at thehearing that he had previously been counseled on the issue of makinginappropriate comments, including comments that demonstrated insubordination.
Noting that the settlement agreement was received as evidencein the course of the disciplinary hearing, the Appellate Division concludedthat there was no basis for Smeraldo’s claim that the Hearing Officerimproperly relied upon facts not in evidence.
The full text of the decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07336.htm
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