Know Your Rights: Disciplining Off-Duty Conduct

Know Your Rights
Disciplining Off-Duty Conduct

By JAMES A. BROWN

Civil servants enjoy certain job protection afforded to them by Civil Service Law § 75 and, if they belong to labor unions, under collective bargaining agreements. Yet, job protection should never be mistaken for any kind of ironclad job security. Misconduct will always be sanctionable.

James A. Brown is a partner in the law firm Brown & Gropper, LLP. He can be reached at (212) 366-4600 and at jabrownlaw@aol.com . Typically, disciplinary penalties are imposed for job-related, on-duty misconduct such as poor work performance, insubordination, latenesses and absenteeism, theft of time or property, and workplace violence. Today's column addresses when off-duty conduct, typically in the form of criminal convictions, may result in a civil servant's suspension or termination of employment.

OATH Standards

The New York City Office of Administrative Trials and Hearings ("OATH"), which hears disciplinary cases pursuant to Civil Service Law § 75, has identified three ways off-duty conduct may result in discipline. OATH has held that a public employee may be disciplined for off-duty conduct if it involves "moral turpitude." If the off-duty conduct does not involve moral turpitude, such conduct may still be sanctionable if there exists some rational relationship or "nexus" between the conduct and the employee's job position.

"Moral turpitude" has been defined as "an act or behavior which gravely violates the moral sentiment or accepted standards of the community." OATH has considered the following examples to be moral turpitude: sexual assault, welfare fraud, theft, dissemination of indecent materials to minors, fraudulent use of a credit card, knowingly filing false information to collect money to which one is not entitled.

It should be noted that not all criminal convictions represent moral turpitude. As examples, the illegal sale of a firearm, conspiracy to possess stolen goods, and possession of small amounts of an illegal controlled substance have been deemed criminal acts not involving moral turpitude.

Nexus Analysis

If a hearing officer (or labor arbitrator) concludes that the off-duty conduct does not involve moral turpitude, the "nexus" analysis will then be applied. As noted above, whether particular off-duty conduct (which does not involve moral turpitude) is still subject to discipline hinges on the nature of the employee's misconduct in relation to his or her job title.

Employees who work with children, or the public in general, are held to a higher standard when it comes to their off-duty activity. For example, school employees will likely be terminated for any misconduct occurring off-duty which involves illegal drugs. Employees in safety-sensitive positions will also be more closely scrutinized for any off-duty matters involving illegal drugs.

Similarly, Eligibility Specialists, who obtain personal confidential information (including Social Security Numbers and financial information) from the general public are expected to have unimpeachable integrity and character. Any off-duty misconduct involving fraud or falsification of records is likely to result in discipline for Eligibility Specialists and others who interact with the public.

In addition, OATH applies a higher standard to law-enforcement officials. Consequently, a correction officer was suspended for off-duty misconduct when she was arrested for not complying with a police officer's request to move her car from a "no-parking" area; similarly, another correction officer was suspended for obstructing the arrest of her son when she pushed police officers.

Discrediting Agency

There is also another category of off-duty conduct which sustains disciplinary penalties: conduct which tends to discredit a public employer. This type of misconduct usually ends up embarrassing the public employer or holds it up to public ridicule. The employer rarely cites "public ridicule" when it charges the employee with misconduct; rather it claims that the employee failed to "uphold the integrity" of the agency or compromised his or her ability to properly discharge his or her duties.

The more-notable "public ridicule" cases include two non-OATH, NYPD cases. In one case, a police officer posed nude for a magazine; in the other, an officer slid down a hotel bannister nude while attending a memorial service for slain officers.

Fortunately, your employer cannot intrude into most aspects of your off-duty personal life. However, when evidence surfaces of "moral turpitude" or other misconduct which shakes your employer's confidence in whether you can discharge your duties with integrity, your personal life will become "fair game" and may form a basis for terminating your employment.