Luke C. Davignon obtained a favorable decision on behalf of a municipal client at the Appellate Division, Third Department on August 13, 2009. After learning that an employee had been arrested for DWI the municipality discovered that the employee had a previous DWI conviction which he had not disclosed on an employment application. The municipality thereafter charged theemployee with incompetence and misconduct and held a hearing pursuant to the Civil Service Law. During the hearing, the municipality’s insurance broker testified that retaining an employee who had two DWI’s convictions would result in non-renewal of the municipality’s insurance policy, providing substantial evidence that the employee’s off-duty criminal conduct rendered him incompetent to perform his duties without unreasonable hardship to the municipality.Following the hearing the municipality’s Town Board found the employee guilty of both charges and terminated the employee.
The employee filed an Article 78 Petition to strike the decision by the municipality and argued that there was not substantial evidence to support the charges against the employee and that the penalty of termination was unduly harsh. The Third Department held that there was substantial evidence that the employee was guilty of the charges against him and that the penalty of termination should not be disturbed.
