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Wednesday, April 07, 2010

Disciplinary hearings held in absentia

Disciplinary hearings held in absentia
Mari v Safir, App. Div., 1st Dept., #285, Feb. 19, 2002 291 A.D.2d 298

The Mari decision demonstrates that an individual against whom disciplinary charges have been filed cannot avoid the consequences of disciplinary action being taken against him or her by refusing to appear at the disciplinary hearing. The decision also provides an opportunity to explore a number of factors that should be kept in mind when involved in a disciplinary or other administrative action held "in absentia."

New York City police officer Robert A. Mari was served with disciplinary charges alleg­ing that he (1) engaged in unauthorized off-duty employment; (2) knowingly associated with a person believed to be engaged in, likely to engage in, or to have engaged in crimi­nal activities; (3) intentionally disclosed an informant's identity to a target of police activ­ity; and (4) harassed "a former paramour."

When Mari failed to appear at his disciplinary hearing, he was "tried in absentia" and was found guilty of the several disciplinary charges filed against him. The penalty imposed: termination. Mari appealed, contending that he should be given a "new hearing" because he was not actually present during the disciplinary proceeding.

The Appellate Division, First Department, dismissed Mari's appeal. Conceding that Mari not present at the disciplinary hearing, the court said that "a new hearing is not warranted since [Mari] avoided service of the notice of the revised hearing date, and thereafter intentionally absented himself from the hearing."

The general rule in such situations is that if the employee fails to appear at the discipli­nary hearing, the charging party may elect to proceed but must actually hold a "hearing in absentia" and prove its allegations rather then merely impose a penalty on the individual on the theory that the employee's failure to appear at the hearing as scheduled is, in ef­fect, a concession of guilt.

In such case, however, the appointing authority is required to make a reasonable effort to contact the employee before proceeding to hold a disciplinary hearing in absentia. It may be that the employee has a valid excuse for his or her nonappearance such as a family emergency or personal illness, which would justify the hearing officer granting an ad­journment.

The following are factors that should be kept in mind in connection with holding a disci­plinary hearing in absentia:

1. Was the employee properly served with the disciplinary charges and advised of the date, time and place of the hearing?

2. If the individual fails to appear at the hearing as scheduled, a diligent effort must be made to contact the individual to determine if he or she has a reasonable explanation for his or her absence before the hearing officer proceeds with holding the hearing in the absence of the accused employee.

3. A formal hearing must be conducted and the employer is required to introduce evi­dence proving its charges to the hearing officer.

4. A formal record of the hearing must be made and a transcript provided to the appoint­ing authority and, if requested, to the employee.

5. The employee must be advised of the appointing authority's determination and his or her right of appeal if he or she has been found guilty of one or more of the charges.

It should be remembered that it is not may always be a case of the employee being "tried in absentia" -- sometimes the employer fails to appear at the scheduled hearing. The decision of the Appellate Division, Third Department, in Aures v Buffalo Board of Education, 272 A.D.2d 664, involved just such a situation.

In Aures, the employer, the Buffalo City School District, failed to appear at an unem­ployment insurance hearing as scheduled. The hearing officer proceeded to hold the hearing "in absentia" and awarded unemployment insurance benefits to Aures. Rejecting Buffalo's appeal challenging the award of benefits, the Appellate Division ruled that the determination was binding on the parties.

In another case, Hall v Environmental Conservation, the Appellate Division held that an arbitrator may proceed with a contract disciplinary arbitration notwithstanding the fact that the employer refused to participate in the proceeding. The court said that the arbitra­tor's decision was final and binding notwithstanding the fact that the employer did not participate in the proceeding.

In its appeal Environmental Conservation [DEC] claimed that its termination of Hall was not subject to being challenged pursuant to the "contract disciplinary procedure." DEC's argument: the State Department of Civil Service had disqualified Hall for employment. Thus Hall's appointment was void and therefore he could not claim any rights under Section 75 of the Civil Service Law or the collective bargaining agreement.

A Supreme Court judge granted the union's motion to confirm that portion of the award providing for back pay, holding that the disciplinary proceeding was not rendered moot by the Civil Service Department's action but refused to confirm that part of the award that directed DEC reinstate Hall to his former position. The Appellate Division affirmed the lower court's ruling.

On the other hand, participating in an arbitration when one need not do so may have consequences equally serious to those flowing from the failure to appear and participate in the arbitration proceeding. In Suffolk County v SCCC Faculty Association, the Ap­pellate Division pointed out that if a party participates in an arbitration when "it did not have to," it cannot later seek to vacate the arbitration award "because it was not required to submit to the arbitration of the issue."

On another point, assume that an individual served with disciplinary charges pursuant to Section 75 of the Civil Service does not file an answer to the charges and specifications. May the appointing authority impose the proposed penalty without holding a disciplinary hearing?
Probably not.

Although Section 75 requires the appointing officer to allow the accused employee at least eight days to file his or her answer to disciplinary charges in writing, this simply allows, but does not mandate, an employee at least eight days in which to prepare and submit his or her answer to the charges. This suggests that the individual may remain mute -- i.e., decline to file an answer to the charges -- without jeopardizing any of his or her Section 75 rights to administrative due process.

Second, and perhaps critical to due process considerations in connection with taking disciplinary action against a public employee, Section 75 provides that "the burden of proving incompetency or misconduct ... (is) upon the person alleging the same."

In other words, the failure of an employee to file an answer to the disciplinary charges, appear at the disciplinary hearing or his or her even refusing to defend himself or herself against the charges at the hearing does not excuse the employer of its duty to prove the employee's incompetence or misconduct before imposing an appropriate disciplinary sanction.

Turning to the merits of the disciplinary determination in Mari's case, the court said that "that there was substantial evidence ... to support the hearing officer's findings." As to the penalty imposed, the Appellate Division found that it was not so disproportionate to the offenses of which Mari was found guilty "as to shock this Court's sense of fairness," citing Kelly v Safir, 96 NY2d 32.

Mari also alleged that the department acted in "bad faith" when it accelerated the date of his disciplinary hearing. He contended that the hearing date was improperly accelerated and as a result his pension was forfeited since his termination took place before the effec­tive date of his retirement.

Section 13-173.1 of the Administrative Code of the City of New York requires an employee to "be in service" on the effective date of his or her retirement or vesting of retirement benefits. If the employee is not "in service" on that date, he or she forfeits his or her retirement benefits.

The Appellate Division dismissed this branch of Mari's appeal. According to the ruling, that Mari "was found guilty of conduct that took place, and the resulting disciplinary charges were filed, long before [he filed his] application for retirement."

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