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Wednesday, November 07, 2012

Challenges to the validity of the appointment of hearing officer, consideration of hearsay evidence and allegations of the denial due process

Challenges to the validity of the appointment of hearing officer, consideration of hearsay evidence and allegations of the denial due process
McKenzie v Board of Educ. of the City Sch. Dist. of Albany, 2012 NY Slip Op 07258, Appellate Division, Third Department

The City School District of Albany filed disciplinary charges against one of employees pursuant to §75 of the Civil Service Law alleging that the employee was guilty of "conduct unbecoming a [s]chool [d]istrict employee and misconduct."

The employee was advised of the identity of the Hearing Officer who was appointed to preside over the §75 disciplinary hearing in writing and a disciplinary hearing was conducted by the designated Hearing Officer..

The Hearing Officer found the individual guilty of the charges and specifications filed against him and recommended the individual be terminated from his position. The School District accepted the Hearing Officers findings and recommendation and the individual was terminated.

The employee appealed, contending that [1] the Hearing Officer's appointment was invalid because School District had failed to provide him with the official notice of the Hearing Officer's designation; [2] he was denied due process because he did not receive adequate notice of the charges that had been filed against him; and [3] hearsay evidence was admitted and considered by the Hearing Officer.

Addressing each of the individual’s arguments, the Appellate Division said:

1. Civil Service Law §75(2) requires that a hearing upon charges of misconduct "shall be held by the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose." The Appellate Division said that these requirements of Civil Service Law §75(2) are satisfied by a written record of such designation, such as . . . a letter to the hearing officer advising him or her that the official designation has taken place," citing. Matter of Arthur v Soares, 95 AD3d 1619.

The court explained that such a letter, along with other exhibits, including the School District’s resolution appointing the Hearing Officer, constituted a written record sufficiently documenting the validity of the Hearing Officer's appointment and satisfied the relevant provisions of Civil Service Law §75(2).

2. As to the individual’s claim that he was denied due process, the Appellate Division said that “Due process requires that ‘a notice of charges must reasonably apprise the accused of the claim being made so that an adequate defense may be mounted,’ and any disciplinary determination must address the accusations as set forth in this statement of charges.” 

The court said that this requirement was satisfied by the written notice charging the individual with misconduct, which stated that the allegations were based on circumstances that resulted in his arrest….” and the seizure by the police of crack cocaine from his person at the time of his arrest.*

3. The court found that the School District’s determination that the individual was guilty of misconduct was supported by substantial evidence and the Appellate Division, citing James v Hoosick Falls Central School District, 93 AD3d at 1133, said “[c]ontrary to petitioner's contention, hearsay evidence is admissible in such administrative proceedings."

Finding that the penalty imposed — termination — was not "so disproportionate to the offense . . . as to be shocking to one's sense of fairness," the Appellate Division dismissed the appeal commenting “other incidents of misconduct that occurred during the 10-year period he was employed by the school district, including numerous arrests … provided ample justification for the decision that he be terminated.

* The court also noted that although evidence was presented at the hearing regarding the individual's past criminal record and other employment issues, “that evidence was relevant to determine the penalty to be imposed if petitioner was found guilty of the charges filed against him.”

The decision is posted on the Internet at:

Handbooks focusing on New York State and Municipal Public Personnel Law:

The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

The Disability Benefits E-book: - This e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://booklocker.com/3916.html

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html


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