Employee disciplined for making false statements in the course of an administrative investigation

Employee disciplined for making false statements in the course of an administrative investigationAbbate v Safir, App. Div., First Dept., 279 A.D.2d 260 Not being truthful in responding to questions posed in the course of an official investigation may result in disciplinary action. New York City police officer Anthony Abbate was found guilty of charges that he "lied at his official interview" when he denied that he had "uttered profanities to another officer," and, in a separate incident, "was discourteous and disrespectful to another officer in uttering racial epithets in an argument." The penalty imposed: dismissal from the force. Abbate's appeal from the determination and the penalty imposed was dismissed by the Appellate Division. The court said that there was substantial evidence to support a finding that Abbate was guilty of the charges. As to Abbate's challenge to his dismissal, the Appellate Division decided that in view of Abbate's "poor disciplinary record" the penalty of dismissal satisfied the Pell standard [Pell v Board of Education, 34 NY2d 222]. In the words of the court, "the penalty does not shock our sense of fairness." Apparently the Appellate Division gave substantial weight to the fact that Abbate had been found guilty of lying in an "official investigation" as the Calhoun case demonstrates. New York City police officer Gary Calhoun appealed his being found guilty of using racial epithets in the course of making an arrest [Calhoun v Safir, Appellate Division, First Department, 279 A.D.2d 295]. Calhoun had been found guilty of disciplinary charges alleging that he used "excessive force and racial epithets" in arresting a suspected car thief. The penalty imposed: suspension without pay for thirty days as a result. The Appellate Division, again referring to the Pell doctrine, sustained the Commissioner's determination, commenting that "[T]he 30-day suspension does not shock our sense of fairness and is a minimal penalty in light of the conduct."

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