By Mitchel Wilson
In Dominguez v. O’Flynn, 35 IER Cases 246 (N.Y. App. Div. 2012), on appeal, the Supreme Court Appellate Division overturned an order of reinstatement of a sheriff’s deputy when the court found a valid last chance agreement existed. The termination was valid regardless of the fact that two of the three charges of misconduct were determined invalid because the deputy had violated the last chance agreement in a single instance of misconduct. Although the last chance agreement was entered into in lieu of a disciplinary hearing, the court found this was not coercion and did not render the agreement void.
The officer challenged his termination following violations of three department rules, including conduct unbecoming of a deputy sheriff. He had a history of seven prior suspensions. The court explained that it does not consider the specific facts of an officer’s misconduct.
The lower court had found the last chance agreement unenforceable because the officer had been put in an “untenable position” in having to choose between disciplinary proceedings that could end in his termination or signing a Last Chance Agreement. However, the appellate court explained that courts routinely enforce Last Chance Agreements because an officer may waive common law, statute, or collective bargaining protections where there is no duress or coercion, not merely due to an officer being in an untenable position.
The court found it did not matter that the officer may not have been terminated had he gone through the original disciplinary process. Simply because the officer was in the unenviable position of having to choose between a disciplinary hearing (that may have resulted in termination) and a Last Chance Agreement does not render the resulting decision invalid. The agreement is valid because being in a difficult position to make a decision is not enough to constitute duress or coercion.
If petitioner found himself in the “untenable position” of having to sign the agreement or proceed with the hearing, he was in that position by virtue of his own misconduct and his extensive disciplinary history, which included seven prior suspensions.
