Saturday, December 12, 2009
Pre-deprivation hearing not required where plaintiff convicted of a felony
Reproduced with permission. Copyright © 2009, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.
Rosa v. CUNY, ___F.3d___(2d Cir. Jan. 13, 2009), is an interesting public sector employment law case. A tenured faculty member was convicted of a felony crime and ultimately his termination was upheld by an arbitrator. Here, the plaintiff claimed that she was deprived of due process because she was not afforded a pre-deprivation hearing. In rejecting that argument, the court stated:
The Supreme Court has “described ‘the root requirement’ of the Due Process Clause as being ‘that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.’” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (quoting Boddie v. Connecticut, 401 U.S. 371, 379 (1971)); see Ciambriello, 292 F.3d at 319.
However, a pre-deprivation hearing is not required where, as here, an employee is suspended without pay after having been convicted of a felony, because that conviction (1) “‘demonstrate[s] that the [deprivation] is not arbitrary’” and (2) “serve[s] to assure that the . . . employer’s decision . . . is not ‘baseless or unwarranted.’” Gilbert v. Homar, 520 U.S. 924, 933 (1997).
Mitchell H. Rubinstein
NYPPL Comment: If a jury finds a person guilty beyond a reasonable doubt of a crime, the disciplinary hearing officer, arbitrator or panel need hear no other evidence to render a verdict of guilty regarding a parallel charge in an administrative disciplinary proceeding.
New York courts have held that a criminal conviction is res judicata [a decided matter] with respect to guilt in any administrative disciplinary action taken against an individual based on the same event[s] or misconduct. As the court noted in Nezanayj [Matter of State of New York Off. of Mental Health v New York State Correctional Officers & Police Benevolent Assn., Inc., 46 A.D.3d 1269]: In such cases administrative tribunals do not have the option of determining that the accused individual is “innocent” of the charges. Its only leeway available to the administrative tribunal is in recommending or imposing a penalty.
The decision in Kelly [Kelly v Levin, 440 NYS2d 424] illustrates this point. The Kelly case involved a school business administrator served with disciplinary charges alleging that he was guilty of larcenies of school funds and bringing discredit upon the school district. An [old law] Section 3020-a hearing panel found Kelly guilty of the charge of bringing discredit upon the district, but found him not guilty of the larceny charges. Kelly, however, had been convicted of two counts of grand larceny for theft of school property [see People v Kelly, 72 AD2d 670] prior to the filing of Section 3020-a disciplinary charges.
The court ruled that the fact that the administrator was found guilty of committing two larcenies of school property in a criminal preceding was, for the purposes of the administrative disciplinary action, conclusively established under the doctrine of collateral estoppel. As the hearing panel’s decision was based solely on a finding of guilt of “bringing discredit” charge, the matter was remanded to the panel for the imposition of a new penalty in consideration of Kelly having been convicted of two counts of grand larceny involving school property.
Kelly demonstrates the proposition that the “beyond a reasonable doubt” requirement of the criminal action satisfies a higher standard than is required to be met to establish guilt in an administrative disciplinary forum, i.e. the less rigorous standard of substantial evidence or even less demanding “preponderance of the evidence” standard.
On the other hand, a finding of “not guilty” in a criminal proceeding does not prevent the appointing authority’s proceeding with an administrative disciplinary hearing. A person can be found not guilty beyond a reasonable doubt in a criminal action and still found guilty under the standard of substantial evidence or preponderance of the evidence in an administrative disciplinary proceeding involving the same allegations advanced in the criminal action.
On a related point, the appointing authority has no obligation to postpone taking administrative disciplinary action against an employee even if a county District Attorney requests that the administrative disciplinary action be postponed until the criminal action is completed. This was the point made by the court in Levine v New York City Transit Authority, 70 AD2d 900, affirmed 49 NY2d 747.
For information about NYPPL’s The Discipline Book, a concise guide to discipline of public employees in New York, go to: http://thedisciplinebook.blogspot.com/2009/03/discipline-book.html
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