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Thursday, November 04, 2010

Discontinuing or postponing administrative disciplinary action while criminal action involving the same event is pending and related issues

Discontinuing or postponing administrative disciplinary action while criminal action involving the same event is pending and related issues

New York courts have considered discontinuing disciplinary action while criminal action is pending, holding that an appointing authority has no obligation to postpone administrative disciplinary action even if the county district attorney requests that the administrative disciplinary action be postponed.

Termination of employment pursuant to Civil Service Law Section 73

Termination of employment pursuant to Civil Service Law Section 73

An individual who is terminated pursuant to Section 71 or Section 73 of the Civil Service Law because of his or her absence caused by a disability may decide to sue the employer, claiming the termination was unlawful.

Tuesday, November 02, 2010

Dual employment

Dual employment

Most public officers and employees serve in one position at a time. Sometimes, however, an individual may be employed by two different jurisdictions simultaneously. Such dual employments generally require the knowledge and approval of the appointing authorities involved.  

Friday, October 29, 2010

Jarema credit and eligibilty for tenure

Jarema credit and eligibilty for tenure

The central issue in this case concerned a teacher’s eligibility for Jarema credit for the purposes of granting tenure. As the decision demonstrates, determining whether an individual qualifies for Jarema credit is not always an easy task.

Thursday, October 28, 2010

Mandatory retirement

Mandatory retirement

In 1988 the state amended the Retirement and Social Security Law to change the mandatory age of retirement for certain members of the Police and Firefighters’ Retirement System [PFRS] from age 60 to age 57 [Chapter 795 of the Laws of 1988]. A State Police Officer  challenged the requirement that he retire from his position upon his attainment of age 57.

Religious freedom and employment

Religious freedom and employment

A school risks violating the Establishment Clause of the U.S. Constitution if any of its teachers’ activities give the impression that the school endorses a religion. But how far can a school board go in limiting a teacher’s classroom speech on religious issues before it tramples on another Constitutional guarantee: the right to free expression?

Wednesday, October 20, 2010

Rescinding a letter of resignation

Rescinding a letter of resignation
Where Civil Service rules so provide, a resignation may not be withdrawn without the consent of the appointing authority. This was the lesson that a food service worker learned when she attempted to rescind her letter of resignation.

Thursday, October 07, 2010

Civil Service Law Section 72 leave

Civil Service Law Section 72 leave

It is not unusual for an employee placed on disability leave pursuant to Section 72 of the Civil Service Law to allege that his or her employer’s action in placing the individual on such leave constituted unlawful discrimination because of a disability. In this case, national origin discrimination was claimed to have motivated placing the employee on “an involuntary medical leave” that eventually resulted in the employee's being placed on Section 72 leave.

Monday, October 04, 2010

Designating employee as managerial or confidential

Designating employee as managerial or confidential

The designation of managerial and confidential employees within the meaning of the Taylor Law is important to both employers and unions. In this case the Appellate Division set out the criteria courts follow in reviewing determinations by the Public Employment Relations Board [PERB] concerning the designation of such personnel.

Thursday, September 23, 2010

Determining seniority for tenure purposes

Determining seniority for tenure purposes

Seniority is probably the most critical factor in determining who may be lawfully retained in a layoff situation. In this case, the New York Court of Appeals addressed the competing seniority claims of two elementary grade teachers seeking to avoid being excessed by a School District.

Tuesday, September 14, 2010

Attorney in private practice employed by municipality to conduct an investigation claims qualified immunity when sued by employee

Attorney in private practice employed by municipality to conduct an investigation claims qualified immunity when sued by employee

In this decision the court explains that the doctrine of qualified immunity that protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

Monday, August 02, 2010

Uninterrupted Civil Service Law §72 absence for one year or more permits termination of employee pursuant to §73 of the Civil Service Law

Uninterrupted Civil Service Law §72 absence for one year or more permits termination of employee pursuant to §73 of the Civil Service Law

Administrative Law Judge recommended that the employer terminate a correction officer absent on Civil Service Law Section 72 leave from employment pursuant to Section 73 of the Civil Service Law after the officer has been absent from duty continuously for more than one year due to a non work-related disability. 

Friday, July 23, 2010

Applying the Rule of Three when there are tied scores involved

Applying the Rule of Three when there are tied scores involved

A "Google Alert" received by NYPPL via the Internet concerned applying the Rule of Three set out in §61.1 of the Civil Service Law based on the following facts:

“I scored a 100 on a New York State civil service promotional exam. There were 7 openings for supervisor. Five candidates scored a 100. One of the four declined the promotional opportunity. The promotions were given to two eligibles who scored 100, four eligibles who scored 95, and one eligible who scored a 90.


Tuesday, June 29, 2010

Provisional employee has no right to continued employment as a provisional

Provisional employee has no right to continued employment as a provisional appointee

In this ruling the court sets out the basic rules concerning the rights of a provisional employee to continued employment as a provisional employee.

Monday, June 21, 2010

Disciplinary probation

Disciplinary probation

An employee’s “disciplinary probation status” may follow the individual to a new agency upon his or her transfer if the new employer wishes to condition the approval of the transfer on the continuation in such status.

Monday, June 14, 2010

Applying the confidentiality provisions of Civil Rights Law §50-a

Applying the confidentiality provisions of Civil Rights Law §50-a
In order to overcome the confidentiality requirements applicable to the personnel records of police officers, firefighters and certain other civil servants, satisfying each the following requirements.

Wednesday, June 09, 2010

Writ of mandamus granted compelling employer to pay retiree for accrued vacation credits

Writ of mandamus granted compelling employer to pay retiree for accrued vacation credits

Upon his retirement the County paid the retiree for accrued vacation in the amount of 630 hours. The retiree, however, contended that he was entitled to be paid for an additional 444 hours of accrued vacation time, or a total of 1074 hours of credit. 

Out-of-title work Article 78 petition dismissed for failure to exhaust remedy provided in the collective bargaining agreement

Out-of-title work Article 78 petition dismissed for failure to exhaust remedy provided in the collective bargaining agreement

CSEA complained that the library aide job assignments given to negotiating unit members violated the out-of-title prohibition contained in Civil Service Law Section 61.

Rescinding a tenure appointment

Rescinding a tenure appointment

If an appointing authority claims that it made a mistake in taking or confirming a personnel action, may it rescind the action or correct the error if the individual voices an objection?

Timely reporting of “the accident” critical to claiming line of duty disability benefits

Timely reporting of “the accident” critical to claiming line of duty disability benefits

A police officer's application for performance of duty disability retirement benefits was rejected by the New York Employees’ Retirement System because she failed to file a notice or report of the incident with her employer within 30 days of the event.

Tuesday, June 08, 2010

Distinguishing between “constructive criticism” and a “reprimand” in the nature of disciplinary action

Distinguishing between “constructive criticism” and a “reprimand” in the nature of disciplinary action

Typically courts have viewed placing a memorandum in a personnel file that the writer characterizes as a “reprimand” or uses a phrase such as “you are hereby reprimanded” constitutes disciplinary action within the meaning of statutory disciplinary procedures, entitling a tenured individual to notice and hearing.

Employees of an entity providing services to a school district pursuant to a contract are not employees of the school district

Employees of an entity providing services to a school district pursuant to a contract are not employees of the school district
The New York State Teachers Retirement System ruled that individuals employed were not entitled to member service credit because they were not employees of a participating employer or, alternatively, because they were not providing teaching services within the meaning of Education Law §501.

Monday, June 07, 2010

Applying the rule of three in selecting candidates on an eligible list for appointment

Applying the rule of three in selecting candidates on an eligible list for appointment

Although employee scored higher than a number of other applicants in a written test for promotion, he was passed over because he “did not do as well as other eligible job aspirants in the evaluative interview conducted by the Department’s promotion committee.” 

Suing for damages for a "line of duty injury" suffered in the course of performing firefighter and police officer duties

Suing for damages for a "line of duty injury" suffered in the course of performing firefighter and police officer duties

The so-called Firefighters Rule, which has been extended to police officers,* bars firefighters and police officers from recovering for line of duty injuries that occur as a result of the specific risks inherent in performing the duties of firefighter or police officer.

Friday, June 04, 2010

The anatomy of a disputed claim for GML §207-c benefits

The anatomy of a disputed claim for GML §207-c benefits

An employee appealed, asking the court to annul the Village’s denial of his General Municipal Law §207-c benefits on the grounds that such denial was arbitrary and capricious, an abuse of discretion and affected by error of law and fact.

Workers’ Compensation held the exclusive remedy available to an employee injured on the way to a work-related meeting

Workers’ Compensation held the exclusive remedy available to an employee injured on the way to a work-related meeting

The Workers' Compensation Law provides the exclusive remedy “where, ... the employer and the landowner are essentially the same party and the plaintiff is injured while performing his [or her] job.” 

Thursday, June 03, 2010

Concerning name-clearing hearings

Concerning name-clearing hearings

In general, a name-clearing hearing is to provide an employee who claims that he or she has been “stigmatized” by his or her employer with an opportunity to clear his or her name* The individual seeking such a hearing has the burden of proof in the proceeding.

Quid pro quo in the nature of the withdrawal of disciplinary charges not required to validate disciplinary settlement agreement

Quid pro quo in the nature of the withdrawal of disciplinary charges not required to validate disciplinary settlement agreement

The agreement that the employee signed extended his one-year probationary period as a firefighter to 18 months. The Appellate Division said that it was not required that the settlement agreement constitute a quid pro quo for the dismissal of pending disciplinary charges, so long as employee’s waiver of rights to a pre-termination hearing was knowingly and freely made.

Friday, May 28, 2010

Appellate Division lacked “discretionary authority” to vacate the disciplinary penalty imposed by the appointing authority

Appellate Division lacked “discretionary authority” to vacate the disciplinary penalty imposed by the appointing authority

The Court of Appeals held that the Appellate Division “has no discretionary authority or interest of justice jurisdiction in this CPLR article 78 proceeding to review the penalty imposed .…”

Monday, May 24, 2010

Employee’s resignation rescinded based on Supreme Court's finding that it was coerced

Employee’s resignation rescinded based on Supreme Court's finding that it was coerced

The general rule is that once the public officer or employee delivers his or her resignation to the appointing authority or the appointing authority's designee, approval of a request to withdraw or rescind the resignation is subject to the discretionary approval of the appointing authority. 

Tuesday, February 09, 2010

Removal of a public officer by the Appellate Division pursuant to Public Officers Law §36

Removal of a public officer by the Appellate Division pursuant to Public Officers Law §36
§36 of the Public Officers Law provides, in pertinent part, for the removal of town, village, improvement district or fire district officer [except a justice of the peace] by the Appellate Division having jurisdiction "for any misconduct, maladministration, malfeasance or malversation in office."

Friday, January 22, 2010

Processing of an administrative appeal does not toll the running of a statute of limitations

Processing of an administrative appeal does not toll the running of a statute of limitations

Critical to the resolution of this appeal was the Appellate Division’s holding that the time limits for the petitioner commencing her lawsuit challenging her dismissal “was not extended by her administrative appeal of [the Department of Education’s] determination.” 

Wednesday, January 06, 2010

Confidentiality of disciplinary records based on an agreement not to disclose their contents

Confidentiality of disciplinary records based on an agreement not to disclose their contents

The School District had filed disciplinary charges against the principal of one of its schools. Subsequently the School Board authorized its superintendent to negotiate a settlement that would dispose of the matter. A settlement was reached and the Board adopted a motion withdrawing its charges against the principal without prejudice.

Monday, January 04, 2010


The Discipline Book
A guide to disciplinary actions involving public officers and employees in New York State with end notes.
For more information about this 458 page handbook, click on

A Reasonable Disciplinary Penalty Under the Circumstances
A handbook focusing on appealing penalties imposed following disciplinary action, adverse performance ratings, probationary terminations and the denial of unemployment insurance benefits initiated by officers and employees of New York State as an employer and its political subdivisions with end notes.
For more information about this 442 page handbook, click on

Modern disciplinary procedures seek to correct undesirable employee behavior and to rehabilitate the worker. The term “progressive discipline” is often used to describe this effort, especially in connection with contract disciplinary procedures involving arbitration. Simply stated, unless the offense is found to constitute “egregious misbehavior,” the penalty of dismissal is unlikely to be imposed for a first, or even a second, offense.

Except in cases involving egregious misbehavior, progressive discipline theory emphasizes behavior modification to rehabilitate the worker by imposing increasing severe penalties for repeated employee misbehavior in recognition of the economic cost to the employer of losing and replacing a trained employee.

The philosophy of progressive discipline makes it incumbent on the employer to be reasonable in assigning penalties. Courts in New York State have consistently recognized the importance of using progressive discipline.

Rulings by the New York State Supreme Court, the Appellate Division of the Supreme Court, and the Court of Appeals, New York State’s highest court, suggest an employer’s in assigning severe penalties for certain “first offenses” may not survive judicial review. At the same time, courts recognize that every disciplinary situation is different and are pre-disposed to accord “much deference” to the employer’s determination regarding the penalty to be imposed [Ahsaf v Nyquist, 37 NY2d 182], especially with respect to quasi-military organizations such as a police department or a similar law enforcement agency [Kelly v Safir, 96 NY2d 32].

In Gradel v Sullivan Co. Public Works, 257 A.D.2d 972, the Appellate Division upheld the employer imposing a greater penalty that the one recommended by the hearing officer as there was ample evidence in the record to support the employer’s decision.

In short, courts are reluctant to substitute their judgment for that of the employer on the fairness of penalties, but will do so if the penalty appears grossly unfair -- the standard established in Pell v Board of Education, 34 NY2d 222.

The Pell Standard

What’s fair? The seminal case in New York State regarding standards of fairness is the Pell decision [Pell v Board of Education, 34 NY2d 222]. Pell stands for the proposition that a penalty imposed must be proportionate to the offense and not be “shocking to one’s sense of fairness.” This is a high standard. Although it is common for employees to challenge penalties as shocking to one’s sense of fairness, courts almost always uphold the disciplinary penalty imposed by the employer.

What kind of penalties qualify as “shocking to one’s sense of fairness” in the eyes of state courts? Such penalties as:

Terminating an employee for being absent without proper authority and failing to document his absence, where the employee involved had an exemplary employment record and had suffered a stroke while visiting relatives in Egypt. [Selim v NYC Transit Authority, 220 AD2d 515]

Terminating an employee for failing to turn in his keys when ordered. [Maher v Hayduk, 218 AD2d 700]

Dismissal of a tenured elementary school principal with an “unblemished record for over 15 years” for failing to accurately track revenues and expenditures, and concealing deficits, while serving as a probationary Assistant Superintendent for Business. The court said his acts were “isolated incidents in his career and did not involve moral turpitude or fraud.” [Perotti v Pine Plains CSD, 218 AD2d 803, leave to appeal denied 88 NY2d 802]

Terminating a school bus driver who used excessive force to deal with unruly students but who had just received a very positive work evaluation. [Ross v Oxford Academy & CSD, 187 AD2d 898, leave to appeal denied, 81 NY2d 705]

Suspending an employee for 30 days without pay for engaging in conduct that may result in a safety hazard. [Smith v Hager, 185 A.D.2d 612]

Demoting an employee for sleeping on duty on two occasions, although a hearing officer found the employee’s supervisor had “condoned” such conduct and the hearing officer had recommended a suspension without pay for three weeks. [Stapleton v La Paglia, 207 AD2d 945]

Terminating a corrections officer who used excessive force against a prisoner while going to the aid of a fellow officer who has struggling with the inmate. An administrative law judge had recommended a penalty of suspension without pay for 60 days. [Allman v Koehler, 161 A.D.2d 114]

Dismissal of a 17-year employee who failed to report her intended absence on two occasions. “The maximum sanction that could be supported by this record is a suspension without pay for a period of two weeks,” the court said. [Rathburn v Onondaga County Library, 90 AD2d 971]

Court Review

Essentially an appointing authority or an arbitrator determines the penalty to be imposed on an individual found guilty of disciplinary charges alleging a particular act or omission.

Judicial and quasi-judicial bodies may be asked to determine if the penalty imposed on individuals found guilty of the offenses was reasonable under the circumstances. Only certain circumstances, however, may the employer appeal a penalty if it feels the penalty is not harsh enough.1

One example of such an appeal is the somewhat extraordinary case of Greenburgh CSD #7 v Sobol, 237 A.D.2d 721.

In Greenburgh, a hearing panel found a teacher guilty of a number of specifications set out in charges alleging “inappropriate remarks and inappropriate physical contact” with female students by the teacher. The penalty imposed by the hearing panel: suspension without pay for one and one-half years.

The Greenburgh Central School District #7 challenged the §3020-a hearing panel’s decision by appealing to the State Commissioner of Education and later the courts. [This decision was made under the “old” Section 3020-a that was in effect prior to a revision in 1994.]

The Appellate Division said it would apply Pell standard to determine whether the penalty is too lenient. Finding the penalty neither arbitrary nor capricious, the Appellate Division sustained it. The court said that the underlying facts, coupled the absence of charges ever having previously been filed against the teacher during his 21-year career, supported the Commissioner’s determination that the penalty imposed was proportionate to the offenses for which the teacher was found guilty.

The authority of an arbitrator to modify the disciplinary penalty proposed by the employer was a significant issue in Communication Workers of Am., Local 1170 v Town of Greece, 85 AD3s 1668. Here the arbitrator sustained various disciplinary charges against a Town of Greece police sergeant and determined that "[t]he Town had just and sufficient cause to demote" the Sergeant. The arbitrator further determined, however, that a permanent demotion was unreasonable and arbitrary, and converted the proposed penalty to a demotion for a term of one year.

The CWA asked Supreme Court to confirm the arbitration award while the Town asked the court to vacate the award in part on the ground that the award exceeded the scope of the arbitrator's authority.

Supreme Court sustained Greece’s motion to vacate the award and remanded the matter to the Town for its imposition of a new penalty.

In response to CWA’s appeal, the Appellate Division held that Supreme Court erred in vacating that part of the arbitration award reducing the penalty to a demotion for a term of one year and remitted the matter "to the Town for reconsideration of the penalty to be imposed upon" the Sergeant and confirmed the arbitration award.

The Appellate Division said that an arbitrator’s award may be vacated on the ground that an arbitrator exceeded his or her power "only where the arbitrator's award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."2

The Court explained that “It is well established that "an arbitrator has broad discretion to determine a dispute and fix a remedy and that any contractual limitation on that discretion must be contained, either explicitly or incorporated by reference, in the arbitration clause itself'," citing Matter of State of New York [Dept. of Correctional Servs. Council 82, AFSCME], 176 AD2d 1009, lv denied 79 NY2d 756. Further, the Appellate Division pointed out that "To exclude a substantive issue from arbitration, therefore, generally requires specific enumeration in the arbitration clause itself of the subjects intended to be put beyond the arbitrator's reach."

Specifically the court decided that the underlying collective bargaining agreement [CBA] authorized the arbitrator to determine that the imposed punishment is "unreasonable, arbitrary or capricious" and if so found, the CBA specifically provides that, "where the penalty imposed is found to be unreasonable, arbitrary or capricious," the arbitrator may make a determination "with respect to the penalty imposed upon the grievant . . . ."

The Appellate Division pointed out that while the CBA does not explicitly authorize an arbitrator to substitute an appropriate penalty upon determining that the penalty imposed by the Town is unreasonable, arbitrary or capricious, there is likewise no such "specifically enumerated limitation on the arbitrator's power."

Accordingly, the court conclude that the arbitrator did not exceed his authority in modifying the grievant's penalty from a permanent demotion to a demotion for a term of one year.

In contrast, the arbitrator does not have the power to modify an arbitration award that has been judicially confirmed.3 When a final arbitration award has been rendered finally resolving the dispute between the parties, and the award has been judicially confirmed, a judgment enforceable by the courts has been entered (see CPLR 7514),” the arbitrator is functus officio,4 “without power to amend or modify the final award.”

Lawful Penalties

Lawful penalties under Section 75 are:


Fine not to exceed $100

Suspension without pay not to exceed two months

Demotion in grade or title


There are other State statutes vesting powers in public employers similar to those set out in §75 of the Civil Service Law.

For example, §155 of the Town Law and §137 of the Second Class Cities Law sets out procedures for taking disciplinary action against a police officer or firefighter employed by the jurisdiction while §8-804 of the Village Law addresses initiating disciplinary actions against members of a village police force. These provisions set out the lawful penalties that may be imposed on employees being disciplined pursuant to such law.5

Under Section 75 these penalties are mutually exclusive. For instance, if the employee is found guilty of one or more of the charges and specifications, the employer may impose for a single offense a penalty of suspension without pay or a reprimand, but not both. [Sinnott v Finnerty (2nd Dept, 1985) 113 AD2d 836]

However, multiple penalties are possible for multiple offenses [See, for example, Wilson v Sartori, 70 AD2d 959].

There are other possible exceptions to the prohibition on “multiple penalties” being imposed on an individual. In Seabrook v New York, NYS Sup. Ct., Ia Part 5, Justice Stallman,6 a case involving efforts to curb chronic absenteeism, the court considered the unilateral adoption of an employer policy that provided that any employee who was out sick more than 12 days in a 12-month period (excluding absences for certain specified reasons), would be deemed to be guilty of “chronic absenteeism” and could lose of one or more of the following discretionary benefits and privileges:

1. Assignment to a steady tour;

2. Assignment to a specified post or duties;

3. Access to voluntary overtime;

4. Promotions;

5. Secondary employment;

6. Assignment to preferential/special units or commands; and

7. Transfers.

The Union sued, contending that the policy violated §§75 and 76 of the Civil Service Law.

The Union’s theory: The policy imposes disciplinary sanctions without providing the individual with the notice and hearing required by Section 75 as a condition precedent to initiating a disciplinary action.

The court dismissed the Union’s petition, holding that the mandates set out in §§75 and 76 were inapplicable because the penalties set out in the policy do not include any of the sanctions or penalties set out in CSL Section 75(3) with respect to a correction office deemed to be a “chronic absentee.”7

Justice Stallman said that CSL §75 specifically limits the imposition of disciplinary penalties to those set out in the section. The employer may not impose penalties exceeding those set by statute. As an example of this principle, Justice Stallman cited Cepeda v Koehler, 159 AD2d 290.

In Cepeda the court held that a penalty consisting of forfeiture of 15 vacation days plus the payment of $1,500 fine violated the penalty provisions of Section 75, which only sanctions the imposition of a “single penalty” from among those enumerated.

In another multiple penalty case, Matteson v City of Oswego, 186 A.D.2d 1017, the Appellate Division overturned the penalties imposed by the appointing authority and remanded the matter for the imposition of a new, appropriate penalty.

Oswego had imposed the following penalties on Matteson: (1) suspension without pay for 30 days; and (2) demotion to a lower grade position; and (3) restitution of $3,699.48.

The Appellate Division held that the penalty meted out was contrary to law in that “the imposition of multiple penalties was improper” under §75.3 of the Civil Service Law.

In contrast, in cases involving the imposition of a penalty by an arbitrator pursuant to a “contract disciplinary procedure” the courts have held that the only limitations on the penalty to be imposed is the sound judgment of the arbitrator. Rarely are arbitrators limited as to the penalties or combination of penalties they can assign.

Recommending Penalties

In the New York State public service employers have the burden of proposing penalties, determining penalties or both. It is normal procedure after a disciplinary investigation for the employer to write a letter to the employee that specifies disciplinary charges, and typically such a letter will include a proposed penalty.

Under Section 3020-a an arbitrator or a panel of arbitrators will consider the evidence and the penalty proposed and make a binding decision as to the penalty imposed. Under Section 75 the decision to impose a penalty remains with the employer; hearing officers only make findings of fact and a recommendation as to the penalty to be imposed.

What should an employer consider in proposing or setting a penalty?

1. Employment record. The employee’s personnel history may be considered in setting a penalty, provided the employee is advised that this will be done and is given an opportunity to comment on the contents of his or her file. [See Bigelow v Trustees of the Village of Gouverneur, 63 NY2d 470; Doyle v Ten Broeck, 52 NY2d 625]. Relevant questions include: Is this the employee’s first offense of this nature, or is there a pattern of offenses? Has the employee been disciplined or served with disciplinary notice in the past?

Notably, a series of petty offenses by a single individual may have a cumulative impact in the setting of a penalty. In fact, courts have approved the dismissal of an employee for a series of misdeeds that if considered individually would not have been viewed as justifying termination.8

For example, a bus driver was terminated after he reported 30 minutes late to a scheduled class on customer service. While that might seem excessively harsh, the Appellate Division upheld the penalty because the driver was simultaneous found guilty of threatening a supervisor. He was also found guilty of operating his bus ahead of schedule in one instance. A state Supreme Court Justice noted that Robinson had been given a warning and a reprimand prior to being served with the four formal disciplinary charges and “a total of five violations in so short a time weighs heavily here” [Robinson v NYC Transit Authority, not selected for publication in the Official Reports].

2. Taylor Law agreements. Does the controlling collective bargaining agreement set penalties for this type of offense? Does it provide for harsher penalties for repeated offenses?

3. Employer’s records and history. Does the employer have any written guidelines on how certain offenses will be handled? Were other employees who committed similar misconduct subject to disciplinary action? What penalties were imposed for similar offenses involving other employees?

4. Employee’s awareness of the issue. Was the employee told of the expected standard of behavior or performance? Was there any change or improvement?

5. Mitigating circumstances. If the employer is aware of any mitigating circumstances, these should be considered [See below for examples of “mitigating circumstances considered by arbitrators and the courts.]

6. Decisions by other jurisdictions. What penalty was imposed for similar offenses by other jurisdictions? If challenged, were they sustained by the courts and for what reasons. Although every disciplinary situation is unique, research into similar cases is appropriate and can inform the decision-maker on setting of penalties.

7. Relevant laws. In certain cases laws compel dismissal if the employee is found guilty of charges in a judicial forum. Section 30 of the Public Officers Law, for instance, operates to remove a public officer from the position without any reference to any administrative proceeding by the employer -- if the public officer has been convicted of a felony or a crime involving the violation of the individual’s oath of office. In such cases the employee is not entitled to any administrative due process. The legal argument here is that the individual did receive due process in the criminal proceeding, so due process has not been denied.

Considering the Individual’s Employment History

The Section 75 hearing officer admitted the accused employee’s performance evaluations during the proceeding at the request of the appointing authority, indicating that the evaluations would be considered in determining the penalty the hearing officer would recommend if he found the employee guilty of one or more of the disciplinary charges.

The question raises a number of issues, including the following:

1. May such records be introduced into the record at the disciplinary hearing?

2. If the employee is found guilty of charges unrelated to adverse material in his or her personnel record, may the hearing officer use such information to recommend a penalty to be imposed by the appointing authority?

3. If the employee is found guilty of charges related to an adverse comment in his or her personnel records should further consideration be barred on the grounds of “double jeopardy?”

Introducing the personnel record

In Scott v Wetzler, 195 AD2d 905, the Appellate Division, Third Department rejected Scott’s argument that he was denied due process because the Section 75 hearing officer allowed evidence concerning his performance evaluations to be introduced during the disciplinary hearing.

The court said that “such evidence was relevant to the determination of an appropriate penalty,” noting that Scott was allowed an opportunity to rebut these records and to submit favorable material contained in his personnel file.

Considering the employee’s personnel record

Having introduced the employee’s personnel records, for what purpose(s) may they be used? In Bigelow v Village of Gouverneur, 63 NY2d 470, the Court of Appeals said that such records could be used to determine the penalty to be imposed if:

1. The individual is advised that his or her prior disciplinary record would be considered in setting the penalty to be imposed, and

2. The employee is given an opportunity to submit a written response to any adverse material contained in the record or offer “mitigating circumstances.”

In some instances, the individual’s personnel record may serve to mitigate the penalty imposed.

For example, In the Matter of Principe v New York City Dept. of Educ., 20 NY3d 963,9 the Court of Appeal, Judge Smith dissenting, said that Appellate Division, 94 AD3d 43,10 “correctly determined that the penalty of termination imposed on petitioner was excessive in light of all the circumstances.”

The Appellate Division had decided that “Given all of the circumstances, including the educator’s “spotless record as a teacher for five years and his promotion to dean two years prior to the incidents at issue,” the penalty excessive and shocking to [its] sense of fairness, citing the Pell Doctrine [Pell v Board of Educ. Of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222].”

Mitigation - Circumstances May Temper the Proposed Penalty

Courts and arbitrators have modified the disciplinary penalty proposed or imposed on an employee by the appointing authority in consideration of what are typically referred to as mitigating circumstances. In some instances a Collective Bargaining Agreement may include a provision requiring the “determinations of guilt or innocence and the appropriateness of proposed penalties” to consider “mitigating and extenuating circumstances.”

However, where the employee is found guilty of egregious misconduct there is generally no consideration given to “mitigating circumstances,” such as in situations involving actions of a deliberate, planned, unmitigated larceny, or bribe taking or upon a demonstrated lack of qualification for the assigned job.

Is Criticism Discipline?

In Holt v Board of Education, 52 NY2d 625, the Court of Appeals ruled that performance evaluations and letters of criticism placed in the employee’s personnel file were not “disciplinary penalties” and thus could be placed there without having to first hold a disciplinary proceeding.

In other words, the appointing authority’s placing correspondence critical of the employee’s conduct or performance in his or her personnel file did not constitute discipline.

The basic rule set out in Holt is that a statutory disciplinary provision such as Section 75 of the Civil Service Law does not require that an employee be given a hearing or permitted to grieve every comment or statement by his or her employer that he or she may consider a criticism.

In contrast, alleged “constructive criticism” may not be used to frustrate an employee’s right to due process as set out in Section 75 of the Civil Service Law, Section 3020-a of the Education Law or a contract disciplinary procedure.

As the Commissioner of Education indicated in Fusco v Jefferson County School District, CEd, 14,396, decided June 27, 2000, and Irving v Troy City School District, CEd 14,373, decided May 25, 2000: Comments critical of employee performance do not, without more, constitute disciplinary action.

On the other hand, counseling letters may not be used as a subterfuge for avoiding initiating formal disciplinary action against a tenured individual.

What distinguishes lawful “constructive criticism” of an individual’s performance by a supervisor and supervisory actions addressing an individual’s performance that are disciplinary in nature? This could be a difficult question to resolve.

As the Court of Appeals indicated in Holt, a “counseling memorandum” that is given to an employee and placed in his or her personnel file constitutes a lawful means of instructing the employee concerning unacceptable performance and the actions that should be taken by the individual to improve his or her work.11

In the Fusco and Irving cases the Commissioner of Education found that “critical comment” exceeded the parameters circumscribing “lawful instruction” concerning unacceptable performance.

In Fusco’s case, the Commissioner said that “contents of the memorandum” did not fall within the parameters of a “permissible evaluation” despite the school board’s claim that the memorandum was “intended to encourage positive change” in Fusco’s performance.

The Commissioner noted that the memorandum “contains no constructive criticism or a single suggestion for improvement.” Rather, said the Commissioner, the memorandum focused on “castigating [Fusco] for prior alleged misconduct.”

In Irving’s case, a school principal was given a letter critical of her performance and the next day reassigned to another school where she was to serve as an assistant principal.

The Commissioner ruled that these two actions, when considered as a single event, constituted disciplinary action within the meaning of Section 3020-a of the Education Law.

Sometimes an individual alleges that he or she has been subjected to “double jeopardy” because a “counseling memorandum” was placed in the individual’s personnel file and later disciplinary charges involving the same event(s) are served upon the individual. Does including or incorporating the events set out in the counseling memorandum as charges constitute “double jeopardy?”

No, according to the Court of Appeal’s ruling in Patterson v Smith, 53 NY2d 98.

In Patterson the court said that including charges concerning performance that were addressed in a counseling memorandum was not “double jeopardy.” The court explained that a “proper counseling memoranda” contains a warning and an admonition to comply with the expectations of the employer. It is not a form of punishment in and of itself.12

Accordingly, case law indicates that giving the employee a counseling memorandum does not bar the employer from later filing disciplinary charges based on the same event. Further, the memorandum may be introduced as evidence in the disciplinary hearing or for the purposes of determining the penalty to be imposed if the individual is found guilty.

The employer, however, may not use the counseling memorandum or a performance evaluation to avoid initiating formal disciplinary action against an individual as the Fusco and Irving decisions by the Commissioner of Education demonstrate.

Expiration of a Penalty

The Commissioner of Education was asked to resolve an interesting, but rare, penalty issue -- what happens if the penalty imposed is a suspension without pay and the individual is in jail during part of the “period of the suspension?” [Manning v Warsaw CSD, CEd 14071]

The Warsaw Central School District had served disciplinary charges against a tenured teacher, William Manning, Jr., related to his alleged operating a motor vehicle under the influence of alcohol.

Following a disciplinary hearing and an appeal, on November 22, 1994 former Commissioner of Education Sobol issued a decision and imposed a penalty of suspension without pay for two years. The decision was sustained by a State Supreme Court justice [Manning v Sobol, August 7, 1995, Not selected for publication in the Official Reports].

Manning, however, was incarcerated in the Wyoming County jail on July 19, 1994. Because he was “unavailable” to work, the district changed his pay status from suspension with pay pending resolution of the Section 3020-a action to suspension without pay effective July 19, 1994.

Released from prison and claiming that his two-year suspension without pay commenced on November 22, 1994, Manning advised the district that he intended to return to work on November 22, 1996.

The District said that the two-year suspension period commenced on March 21, 1995, when he was released from prison and therefore he could not return to work earlier than March 21, 1997. Manning appealed.

Commissioner of Education Richard P. Mills said that the two-year suspension imposed by former Commissioner Sobol commenced when Manning was released from incarceration since allowing the suspension to run concurrently with his incarceration “nullifies a portion of the suspension, since [Manning] could not work during that period in any event.”

The Commissioner rejected Manning’s claim that he was entitled to back salary from November 22, 1996, holding that to do so would abrogate the degree of discipline deemed appropriate by former Commissioner Sobol.

Whistleblower Protection

Disciplinary action may not be used to retaliate against a worker because the employee “blew the whistle.” Section 75-b of the Civil Service Law prohibits an employer from taking any adverse personal action against an individual because the employee disclosed information regarding “improper action” by an employer or the employer’s violation of a law, rule or regulation where the violation involves a danger to the public’s health or

In addition to prohibiting termination or other disciplinary action, the employer may not take any adverse personnel action against the individual involving compensation, appointment, promotion, transfer, assignment, reinstatement to a position or in the evaluation of the worker’s performance.

The United States Supreme Court has established a two-prong test with respect to claims of dismissal in retaliation for “whistle blowing” [Conrick v Myers, 461 U.S. 1l38]. To win, the individual must prove that:

(1) the speech is protected; i.e., the speech involved a matter of public concern; and (2) that the protected speech was a substantial factor in motivating the termination. Courts have declined to provide whistleblower protection in cases in which they determined that the matter involved a purely personal concern.13

The public interest is also a factor. Section 75-b of the Civil Service Law, provides that a public employer “shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding the employee’s employment because the employee discloses to a governmental body information regarding a violation of law ... which violation creates and presents a substantial and specific danger to the public health or safety....”

This does not mean that a whistleblower has carte blanche to engage in misconduct and go unpunished. Section 75-b.4 states that nothing in the section “shall be deemed to ... prohibit any personnel action which otherwise would have been taken regardless of any disclosure of information.”

Court rulings suggest that when a “whistle blower” defense is offered or anticipated, the charging party will have to present evidence that its reasons for disciplining the employee are not pre-textual.


Managers in the public service should be aware that they may be held personally liable for the payment of damages won by an employee who has been unlawfully dismissed from his or her position, unless the managers are able to claim indemnification under Section 17 or Section 18 of the Public Officers Law.

Section 17 of the Public Officers Law provides for the defense and indemnification of State officers and employees, and certain others, if they are sued as the result of their performing, or not performing, an official duty.

Section 17 states: The state shall indemnify and save harmless ... in the amount of any judgment obtained ... in any state or federal court ... or the amount of any settlement ... or shall pay such judgment or settlement; provided, that the act or omission from which such judgment or settlement arose occurred while the employee was acting within the scope of his public employment or duties; the duty to indemnify and save harmless or pay prescribed by this subdivision shall not arise where the injury or damage resulted from intentional wrongdoing on the part of the employee.

Section 18 of the Public Officers Law provides for the “defense and indemnification of officers and employees of public entities” other than the State where the jurisdiction has adopted a local law or taken other appropriate action to confer the benefits available under Section 18 upon its officers and employees.14

Under both §§17 and 18, however, the key to claiming representation and indemnification is that the individual was acting within the scope of his or her employment.

However, a public entity, for the purposes of §18, means a county, city, town, village or any other political subdivision or civil division of the state, a school district, a BOCES or other entity operating a public school, a college, community college or university, a public improvement or special district, a public authority, commission, agency or a public benefit corporation. It also includes “any other separate corporate instrumentality or unit of government.” See, also, See Informal Opinions of the Attorney General 2011-9.

The jurisdiction’s chief legal officer typically determines whether or not the individual was acting within the scope of his or performance of official duties.

Determining the Penalty to be Imposed

Some of the most difficult personnel decisions made by public employers in New York State involve the setting of disciplinary penalties. Which forms of misconduct justify firing an employee? When are lesser penalties appropriate? When do circumstances justify imposing a harsher penalty than recommended by a hearing panel or arbitrator?

There are no standards for employers and arbitrators to turn to answer such questions. Although a few Taylor Law contracts set out specific penalties for certain infractions, usually involving time and attendance matters, there is no “penal code” that lays out a range of penalties for various offenses.

However, there are lessons to be learned from history. Employers have made a countless number of penalty decisions over the years.

A percentage of these have been appealed to New York State courts, federal court or others empowered to review disciplinary actions, including as the State Civil Service Commission, local civil service commissions and arbitrators. The New York State Commissioner of Education had the power to review and set disciplinary penalties until August 1994, when Section 3020-a of the Education Law was amended. These judicial and quasi-judicial decisions may be useful to employers, union leaders and attorneys in setting or negotiating penalties.15

Due Process and Progressive Discipline

To understand why the courts overturned certain penalties and let others stand, it is important to understand the key legal concepts that apply to discipline in New York State.

The first concept is due process.

This idea dates back to English common law, which held that people could not be deprived of their liberty or property rights without due process of law -- certain procedural steps designed to test the merits of claims of wrongdoing. This was to prevent those in power from exercising arbitrary authority. It is critical that the due process rights of employees be respected in the disciplinary process. Failure to do this often means the courts will overturn findings of guilt and vacate the penalties imposed.

The second key concept is the idea that discipline should be progressive.

Progressive discipline theory emphasizes behavior modification to rehabilitate the worker is more productive than the employer having to replacing a trained employee.

In effect, progressive discipline provides an employee with a second, and sometimes a third, chance to become a productive worker. For repeat offenders, increasing severe penalties are typically imposed.

Certain offenses are so egregious as to warrant dismissal in the first instance. Fighting on the job, destroying equipment or materials and stealing from the employer are examples of egregious misconduct. But for lesser offenses, the employer should impose a penalty that fundamentally serves as a message to employee: This behavior is unacceptable, and now you have another chance.

When courts are asked to review disciplinary actions, they apply certain tests. The first question is whether the employee should have been found guilty of misconduct in the first place.

Generally courts are reluctant to substitute their judgment for that of the appointing authority or arbitrator on the issue of guilt. Assuming that due process rights have been respected and there is no flaw in the disciplinary process, the rule is that an employer’s determination of guilt must be sustained as long as it is supported by “substantial evidence.”

Substantial Evidence

What constitutes substantial evidence? According to the Appellate Division of the New York State Supreme Court, “substantial evidence is such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.” (DiCairano v Gandolfo, 201 A.D.2d 727, 201 A.D.2d 728).

For instance, it is improper to consider an employee’s record in determining issues of guilt or innocence. The employee’s history is not substantial evidence.16 Suppose one witness says the employee was late and another witness says the employee was on time. It would be improper to consider the employee’s attendance history to make a judgment of which witness should be believed.

The historical information has no relevance in determining whether the employee was late on the date in question. A person with a reasonable mind would not be expected to say, “The employee was late before, and so he must have been late this time, too.”

However, if the employee is found guilty, an employee’s record may be used in setting a penalty. In the example above, if the employee was found guilty of being late, historical information about previous disciplinary convictions for time and attendance problems could be relevant in deciding the appropriate penalty. An employer who considers an employee’s record in setting a penalty must give the employee an opportunity to comment on that record (Doyle v Ten Broeck, 52 NY2d 625).

“Substantial evidence” is a less rigorous standard of proof that the criminal standard of “proof beyond a reasonable doubt.” In addition, the “rules of evidence” used in a court proceeding are typically not required to be followed in an administrative proceeding, including administrative and arbitration disciplinary proceedings.

As an example, hearsay testimony is permissible in administrative and arbitration disciplinary proceedings, while with few exceptions, only direct testimony is permissible in criminal trials. Hearsay testimony is second- or third-hand information, such as “John’s supervisor told me that John said he would not go to see a doctor.” Direct testimony would be: “I heard John say he would not go to see a doctor.”

While hearsay testimony is permissible and may be part of what constitutes “substantial evidence,” hearsay must be trustworthy and “must be based on more than conclusory statements based on surmise.”17 Furthermore, hearsay testimony alone might be deemed insufficient to constitute “substantial evidence” and thereby justify a determination that the employee is guilty of misconduct.

It is routine for litigants to ask courts to review the case facts and judge whether or not the decision was supported by substantial evidence.

The Standard of Fairness

If a court finds the determination of guilty was not arbitrary or illogical and was supported by substantial evidence, it will turn to the issue of whether the disciplinary penalty imposed should be upheld. The judicial test applied here is the so-called “Pell standard”: is the sanction imposed so disproportionate to the offense or offenses of which the individual has been found guilty as to be shocking to one’s sense of fairness? [Pell v Board of Education, 34 NY2d 222]

What constitutes a penalty judged to be so shocking? An example of the type of punishment that might be seen as violating Pell would be to fire someone for a minor offense such as a single instance of smoking on the job. On the other hand, everything depends on the circumstances. The unique conditions and requirements of a given workplace must be recognized in judging the fairness of a sanction.

Suppose the aforementioned employee who was caught smoking happened to be working in a factory manufacturing gunpowder? Clearly, the unique working conditions of the factory compel the factory’s managers to be harsher in handling a smoking infraction than other employers in other industries might be when confronted with the same offense.

In Jeffrey v Walcott18 a Supreme Court judge found that a two-day suspension without pay was “beyond arbitrary” under the circumstances. In this Article 78 Proceeding, the Petitioner asked Supreme Court to annul and rescind the New York City Department of Education’s [DOE] determination that she had administered corporeal punishment to a student and her being suspended without pay for two days as a result of that decision.

Petitioner also asked the court [1] to compel DOE “to expunge their files” concerning the event leading to Petitioner’s suspension and [2] her award of back pay and other benefits lost.

The genesis of this action was Petitioner’s receiving a letter from the school principal [Principal] scheduling an appointment to investigate an allegation of corporal punishment made by a parent of one of the students in Petitioner’s class. Petitioner denied the allegations that she had administered corporal punishment to the child. Principal then notified Petitioner that she was going to refer the allegations to the DOE's Office of Special Investigations [OSI] and Petitioner submitted a written response to Principal in which Petitioner again denied the allegations.

At the conclusion of the school year, Principal told Petitioner that DOE's OSI had not rendered a decision regarding the allegations of corporal punishment nor did the record submitted to Supreme Court contain any information about any investigation or determination by OSI. Subsequently, however, Principal informed Petitioner that she had investigated the complaint, which included interviews with the child’s mother, interviews with students in Petitioner's class who wrote “witness statements,” and the classroom teacher.

The Principal sent Petitioner a “Suspension Letter” stating that: I have evaluated all of the investigatory results, including your response … and conclude that after completing the investigation, a specific date of occurrence could not be determined. I also could not determine whether or not you have pulled [[the child] by the his neck or shoulders, or pushed him on his back [as his mother alleged]. However based on statements made by some of the students in the class, I conclude that you have grabbed [the student] by the arm and pulled on his sleeves in the past.

Principal then suspended Petitioner for two days without pay.

After addressing a number of procedural issued, Supreme Court Judge Manuel J. Mendez address the merits of Petitioner’s appeal, finding:

1. The Suspension Letter, the only documentation supplied to the Court recording “DOE's decision,” states that the Principal “was not able to determine the truth regarding any of the allegations made by [the pupil] and his mother.”

2. The Principal’s decision concerning the allegations of corporal punishment were based on the written statements of eight students and the record is silent as to how her discussion with the teacher “factored into her decision.”

3. Seven of the eight written statements submitted by DOE in these proceedings written by “2nd grade special education students ‘include translations' at the bottom whereby someone took it upon themselves to interpret what the unnamed individual concludes the children meant to say.”

4. Four of the seven letters “clearly and unequivocally” state Petitioner never touched the student while three statements mention physical contact between Petitioner and the student, two which state that Petitioner grabbed the student’s arm and the third stated that Petitioner grabbed the student’s clothes. The court noted that there was no description, context, or explanation accompanied these statements.

The court’s conclusion: “those three written statements were enough for [the principal] to substantiate allegations of corporal punishment against Petitioner and reflect such in Petitioner's permanent record with the DOE.”

Judge Mendez opined that for the Principal to substantiate allegations of corporal punishment against Petitioner based solely on what “those three children wrote at someone else's prompting,” after she was unable to determine any truth to the original allegations, “is beyond arbitrary.”

Judge Mendez annulled the letter substantiating allegations of corporal punishment against Petitioner and ordered DOE to expunge all reference to the “Suspension Letter” determination, and anything else referring to it, from its files, “including, but not limited to, any reference to a substantiated allegation of corporal punishment and the two day suspension.” The court then directed DOE pay Petitioner two-days back pay and other benefits lost as a result of Petitioner's two-day suspension.

Another legal dictum that goes hand-in-hand with Pell is the philosophy that “much deference” is to be accorded to the agency’s determination regarding the penalty to be imposed [Ahsaf v Nyquist, 37 NY2d 182]. In short, courts will overturn penalties only if they perceive them to be unfair. And, in general, courts are reluctant to substitute their judgment for that of the employer.

Sometimes an employee who is disciplined will point to another employee who committed the same offense yet received a lighter punishment. Case history suggests this particular argument is not likely to sway courts.

However, in at least one case the Appellate Division was persuaded by an argument that a certain penalty was unfair because lesser penalties had been imposed for more egregious conduct [Trotman v Ward, 146 AD2d 236].

Challenges to disciplinary penalties have also been made based on allegations of unlawful discrimination. A worker may claim that he or she received a harsher penalty solely because of the individual’s race, religion, gender or some other unlawful consideration.

Uniformity in setting of penalties should not necessarily be the goal of public employers, though. The goal should be fairness, and a rigid uniformity in the penalties an employer assigns for various categories of offenses is not necessarily the same as fairness.

As to the topic of different penalties imposed for the same offense or similar offenses, judges appear to be philosophically aligned with Ralph Waldo Emerson, who said, “A foolish consistency is the hobgoblin of little minds.” In Alaimo v Ambach, 91 A.D.2d 695, a case involving an employee who had been found guilty of the felony of perjury and lost a license, the Appellate Division did not accept the argument that the penalty was too harsh compared to penalties given to others committing the same type of offense. In Alaimo the court held “The mere fact that others guilty of similar transgressions have escaped with lighter penalties does not justify a modification here.”

Reasons Why Courts Reject Penalties

Relatively few penalties are rejected by the courts as being fundamentally unfair. It is much more common for courts to either reduce a penalty or require an employer to reconsider a penalty because of procedural defect in the disciplinary process that voids one or more of the findings of guilt. The due process rights of employees must be respected throughout the disciplinary process, and it is essential that both personnel officers and union leaders have a firm grasp of case law to ensure that the rights of employees are fully understood.

For instance, one case considered important by many public employers and attorneys is Matt v LaRocca, 71 NY2d 154. In Matt the Appellate Division described circumstances in which an employee may legally refuse to answer questions in a disciplinary investigation. The Matt ruling exposed the limits of Section 61 of the Public Officers Law, a statute that has been relied on by public employers as authority for investigating the activities of its employees and compelling them to talk about work-related events under oath.

Compelling an employee to answer work-related questions has been considered by New York and Federal courts in a number of cases. Below are listed some of the holdings by courts concerning some basic “Fifth Amendment considerations” in the context of administrative disciplinary action.

1. Forcing an employee to answer work-connected questions or be terminated from his or her position generally precludes criminal prosecution based on those answers. Testimony obtained under threat of the loss of public employment provides the employee with limited immunity in criminal prosecutions based on the individual’s responses to such inquiries.19 Essentially testimony provided under threat of loss of the individual’s public employment may not be used as a basis for, or in, subsequent criminal prosecution involving that individual. [Lefkowitz v Turley, 414 US 70]. The Court of Appeals addressed this issue in People v Corrigan, 80 NY2d 326. The Court of Appeals said that under both state and federal law any statement made under the threat of dismissal is protected by the privilege against self-incrimination and is “automatically immunized from use in criminal proceedings.” The court said that the immunity that attaches to any statement that a public worker gives under compulsion bars the use of the statement itself, as well as any evidence derived directly or indirectly from it, in any criminal prosecution.

2. The several decisions in Mountain v Schenectady [474 NY2d 612; 453 NY2d 93 and 428 NY2d 772] focus on the impact of an employee’s refusal to waive his or her immunity from prosecution and suffers the loss of his or her public office as a result of such refusal. The Mountain rulings focused on the relationships between a refusal to waive immunity from prosecution and the loss of public office.20

3. Where an employee is entitled to immunity with respect to the employee’s admissions or statements made in the course of a disciplinary investigation because it had been compelled under threat of termination, “that immunity would dissolve in the face of false allegations being filed.” [Seabrook v Johnston, 660 NY2d 311, United States v Apfelbaum, 445 U.S. 115]. In other words, transactional or use immunity does not permit the individual to lie.21

4. The U.S. Supreme Court unanimously held that a federal government agency could impose a harsher discipline on an employee who lied while being investigated for job-related conduct. Although only federal employees were involved, the ruling may influence cases involving state and local employees. As to a "Fifth Amendment" defense in such cases, in Brogan v United States, 522 US 398, the Supreme Court upheld the conviction of a former union official who falsely answered a federal investigator's questions.

The Court held that the Fifth Amendment privilege against self-incrimination does not bar prosecuting an individual who answers questions falsely in contrast to his or her refusing to answer the same inquiries.

5. The Supreme Court, in an opinion by Chief Justice William H. Rehnquist, held that in the event employees remain silent in the course of a disciplinary action, citing the Fifth Amendment or some other reason, the appointing authority is free to consider such silence and draw adverse inferences in making its determination in a disciplinary action.

6. An appointing authority may experience a situation in which an attempt to discipline an employee appears frustrated because the employee claims that he or she has been granted immunity in connection with a criminal proceeding. According to the Appellate Division, administrative disciplinary action may proceed notwithstanding the claimed immunity (Greco v Board of Nursing Home Examiners, 91 AD2d 1108).

In Greco, a Special Prosecutor granted Greco “transactional immunity from prosecution” in connection with a criminal matter in exchange for his cooperation. The Nursing Home Examiners subsequently revoked Greco’s nursing home administrator’s license. The Appellate Division, in a split decision, rejected Greco’s argument that his immunity barred revocation of his license. The court ruled, “a prosecutor cannot divest an independent body of its lawful discretion by promising broad immunity.” This is consistent with the view that an administrative disciplinary action based on the same events that may have resulted in a criminal prosecution is not “double jeopardy.” Had the board been a party to the granting of immunity, however, it would have been bound by the agreement.

7. Statements made by an employee to the police during an investigation of criminal charges filed against the employee constitutes “competent evidence” and may be admitted into evidence during the administrative disciplinary hearing (Dacey v County of Dutchess, 121 AD2d 536). In contrast, where the administrative disciplinary action precedes criminal action, in the event the appointing authority threatens to terminate or take other adverse action against an employee if he or she does not answer work related questions, the employee’s answers to those questions are automatically shielded from use in a subsequent criminal prosecution under the doctrine of “transactional immunity” or “use immunity.”

8. Witnesses who may have participated in wrongdoing are not automatically granted transactional or use immunity by virtue of their testimony in an administrative procedure. Further, an administrative tribunal cannot bind the district attorney by a promise of immunity from criminal prosecution in exchange for the individual’s testimony as a witness at an administrative hearing. By the same token, the district attorney cannot bind an administrative tribunal with respect to its exercising its lawful authority.

If immunity is a consideration, the witness must be granted such immunity by the appropriate authority in order for it to be effective and binding on that authority.

9. May a police officer be compelled to answer questions posed by a department's internal affairs division concerning on-duty and off-duty activities that directly involve their abilities to “carry out the public trust?” the Attorney General advised that in Matt v LaRocca, 71 NY2d 154, the Court of Appeals said that the State “may compel any person enjoying a public trust to account for his activities and may terminate his services if he refuses to answer relevant questions, or furnishes information indicating that he is no longer entitled to public confidence.”

In addition, the Attorney General noted that the United States Supreme Court in Garner v Broderick, 392 US 273, held that if an public officer or employee refuses to answer questions specifically, directly and narrowly related to the performance of his official duties and is not required to waive immunity with respect to the answers in a criminal prosecution, the constitutional privilege against self-incrimination would not bar termination for such refusal to answer.

On the issue of “off-duty” conduct, however, the Attorney General said that there is no explicit statement in case law to the effect that a public officer or employee may be compelled to answer questions concerning such activities. The opinion then indicated that “presumably some off-duty activities are relevant to an employee's performance of his public trust ... a factual determination that must be made on a case-by-case basis.”

The Attorney General concluded that an “internal affairs division [of a law enforcement agency] may compel officers to answer questions directly relating to their official duties, assuming that no waiver of immunity is required,” suggesting that “it would be wise to coordinate the department's investigation of such persons with the district attorney's office.” [Informal Opinion of the Attorney General 93-12].

Both the filing of disciplinary charges and the determination of the penalty to be imposed may be challenged on the grounds that such action or decision constitutes a violation of Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act or any of several other federal and state civil rights laws.

10. Participation by the appointing authority in the disciplinary action may be alleged as grounds for vacating a disciplinary determination. In Faga v Board of Educ. of Harrison Cent. School Dist., 56 AD3d 669, the employee challenged his termination from his position, contending that his due process rights were violated the Board of Education had “received ex parte information about the charges from the District's attorneys and the Superintendent of Schools.” Faga also alleged that his right to due process was violated because the Superintendent submitted a statement to members of the Board before the charges were brought that he believed that charges could be sustained.

The Appellate Division found that the District established that the Board did not prejudge the matter nor did it rely on any improperly obtained information in making its determination to dismiss Faga from his position. In contrast, in Phillip Nicoletti v Meyer, 42 A.D.3d 722 the court found that in the course of the disciplinary proceeding, Robert A. Meyer, then serving as the interim Commissioner of Public Works, and Meyer’s wife both testified against Nicoletti.

The Hearing Officer found Nicoletti guilty of three charges of misconduct and recommended his termination. Meyer, as interim Commissioner of Public Works, issued a final disciplinary determination, finding Nicoletti guilty of four charges of misconduct and imposed the penalty of dismissal from County employment.

Citing Matter of Ernst v Saratoga County, 234 AD2d 764, the Appellate Division agreed with Nicoletti’s contention that Meyer should not have made the final determination in this disciplinary action. In Ernst, the court said the chair of the county Board of Supervisors denied Ernst a fair and impartial tribunal because the chair of the Board:

(1) met with the county’s attorneys “to discuss the pending investigation;”

(2) met with the employees involved to, as the chair phrased it, “relieve their fears;”

(3) signed the notice of the charges against Ernst;

(4) voted to bring charges against Ernst;

(5) served as a witness at the disciplinary hearing: and

(6) voted to accept a hearing officer’s findings of guilt and impose the recommended penalty.

Another aspect of the Ernst case involved making a copy of the transcript of the disciplinary hearing available to each member of the board for the purpose of board members making an independent review of the record.

This means a copy of the transcript must be made available to each member of the board who votes. The Ernst the court said that board members failed in this duty because “the only complete copy of the hearing transcript was made available to the Board members at the county personnel office.”

The court ruled that because both Meyer and his wife were witnesses at Nicoletti disciplinary hearing, Meyer should have recused himself from both (1) reviewing the Hearing Officer’s findings and recommendations and (2) making the final determination.

The Appellate Division then remitted the matter to the County “simply for a de novo determination by a duly-qualified designee [of the appointing authority] based on the same hearing record and the same Hearing Office' recommendation.”

Reed v Town of Huntington, 186 AD2d 745, provides an example of the action that may be taken upon such a remittal by the court.

Reed, charged with misconduct and incompetence, was terminated from his position following disciplinary action pursuant to Section 75 of the Civil Service Law. He sued and won an order reinstating him to his position when the court found that there was a procedural defect “in having the town supervisor review the hearing evidence....” The Appellate Division remanded the matter to Huntington for its further consideration of the matter. A de novo review of the hearing evidence was then conducted by the town’s
personnel officer.

In contrast, in some cases courts have allowed the appointing authority – i.e., the decision maker or body -- to be involved in some aspects of the disciplinary process.
In Stanton v Board of Trustees, 550 NY2d 16, the Appellate Division ruled that an employee was not deprived of administrative due process even though members of the Board who voted to terminate Stanton also participated in the underlying investigation that lead to charges of misconduct being brought against her. The court concluded that while a “fair trial in a fair tribunal is a basic requirement of due process ... it has also been recognized that mere familiarity with the facts of a case gained by an agency in the performance of its statutory role does not disqualify a decisionmaker.”

For additional, related, litigation involving Reed and the Town of Huntington, see 82 NY2d 783.

Violations of the Pell Standard

The “Pell standard” is a holding by the New York State Court of Appeals that any disciplinary penalty authorized by law is permissible as long as it is not so disproportionate to the offense that it is “shocking to one’s sense of fairness” [Pell v Board of Education, 34 NY2d 222].

This is, of course, a subjective standard and one which the courts are frequently asked to interpret. Countless public employees who have been found guilty of disciplinary infractions have filed lawsuits to ask state courts to evaluate whether the penalty imposed on them is “shocking to one’s sense of fairness.” Only rarely do judges find a penalty so disproportionate, however.

Courts generally are reluctant to substitute their judgment for that of an arbitrator or hearing officer. But sometimes the Courts reduce penalties after finding a procedural flaw that requires one or more findings of guilt to be thrown out.

Assume that an employee is dismissed after being found guilty of one charge of smoking in a no-smoking building and one charge of embezzling $100,000.

If a court later rescinds the finding of embezzlement, the penalty of dismissal would likely be viewed as shocking to one’s sense of fairness. A judge would probably say it is disproportionate to fire someone for one smoking offense.

Penalty: Reprimand

A reprimand is the minimum disciplinary penalty set out in law. Section 76 of the Civil Service Law does not permit employees given reprimands to appeal their discipline cases to state courts.22

However, the courts have considered certain cases in which the penalty was a reprimand because other issues were involved. And the employer is empowered to appeal the decision of a disciplinary panel or an arbitrator if it believes the penalty is not allowed by law.

Loss of Leave Credits and Other Alternative Penalties

Sometimes the penalty imposed involves an employee losing vacation time or other leave credits. A penalty frequently imposed by an arbitrator under a disciplinary procedure negotiated pursuant to the Taylor Law, it is sometimes applied in a settlement of a Section 75 or a Section 3020-a case as well.

Penalty: Fine

The theory underlying imposing a fine as a disciplinary penalty is that the employee will receive a message that is clear and specific and has a direct impact on his or her pocket. As a consequence of the employee’s unacceptable behavior, he or she feel the sting of a direct -- albeit temporary -- reduction of his or her paycheck. In imposing a fine, the employer sets a specific value on the seriousness of the infraction,23 and the employee
experiences that assessment as a tangible loss.

However, a fine, in addition to being subject to statutory limitations in certain situations, must be appropriate to the offence as the AppellateDivision indicated in its ruling in Liu v New York City Department of Education, 107 AD3d 464.24

The arbitrator found a New York City Department of Education teacher, Tina Liu, guilty certain charges filed against her pursuant to Education Law §3020-a by the Department and imposed a fine of $12,500. Supreme Court denied Liu’s CPLR Article 75 petition seeking to vacate the award and confirmed the arbitrator’s decision and imposed penalty and Liu appealed.

The Appellate Division modified the Supreme Court’s ruling “on the law” only as to the fine imposed, reducing the fine to $1,250. The court said that the arbitrator found that Liu was negligent in dealing with a stray kitten in her backyard rather than guilty of “intentional misconduct” as charged by the Department. Further, the arbitrator found that Liu had “a 15 year unblemished record” and the conduct for which she was charged was
completely unrelated to her professional work.

The Appellate Division found that the fine imposed, $12,500, was so “disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness” and reduce it accordingly.

Penalty: Suspension Without Pay

Suspension without pay is a common penalty for a disciplinary infraction. A distinction should be made between suspensions that are the result of a disciplinary process and suspensions that are part of a disciplinary procedure.

For instance, the imposition of suspension for 30-day without pay pending a hearing is not viewed as a “penalty” per se, at least at the time it is imposed. If the employee is acquitted of all charges he or she is restored to the position with back salary, less any unemployment insurance benefits received during the suspension [Section 75.3, Civil Service Law.]

However, if the employee is found guilty and assigned a penalty of suspension without pay, the 30 days that the employee has already endured without pay can, at the discretion of the employer, be considered “time served” in fulfillment of the assigned penalty.

Section 75.3 also provides that the appointing authority, as a matter of discretion, may consider the time during which an officer or employee was suspended without pay pending the disciplinary hearing as part of the penalty.

Where an alternate to Section 75 has been negotiated pursuant to the Taylor Law (see Section 76.4 of the Civil Service Law) the question of an employee’s suspension without pay pending the hearing may go to the arbitrator. If the employee was suspended pending the grievance hearing is found guilty, the agreement may provide that the arbitrator shall also consider the question of whether the pre-hearing suspension was appropriate under the circumstances.

Employees who are suspended pending a hearing and are later given the penalty of reprimand have the right to appeal the reprimand unless the employer reimburses them for the pre-hearing suspension.

Penalty: Demotion

Typically a demotion is a “permanent” action and the disciplined employee has no rights to reemployment in the higher-level title.

In some instances, however, an arbitrator may impose the penalty of demotion for a limited period. In such cases the arbitration award will provide for the reinstatement of the disciplined individual to the higher grade title if he or she meets the conditions imposed by the arbitrator within a specified period.

As to effecting the penalty of demotion, it may not be as simple as it appears. If there is an unencumbered position in the lower grade, the individual to be demoted can be merely appointed to the vacancy. If, however, there is no vacancy available the situation may be somewhat more complex and a number of procedural alternatives may have to be considered by the appointing authority.

For example, the higher-level position may be “temporarily downgraded” or, less frequently, “reclassified downward,” to the lower title and grade and the disciplined employee appointed to it. In the alternative, a vacancy in the lower grade may be created by the promotion of the incumbent of a lower grade position with the simultaneous demotion of the individual to the newly created lower grade vacancy. In such cases the individual promoted frequently will have a “hold” on the lower grade position if he or she was promoted permanently unless any required probationary period is waived.25

Another factor that might complicate matters could be the existence of a preferred list for either or both titles. In such cases the preferred list is “ignored” if its use would result in a layoff of a permanent incumbent, including the individual disciplined. In addition, in some cases a provision in a collective bargaining agreement such as “job bidding” could have an impact on personnel transactions and would have to be considered in determining the rights of the individuals involved.

Time and Attendance Issues

Time and attendance problems are among the most common experienced by employers.
Although traditional disciplinary procedures have been followed in attempting to correct an employee’s habitual tardiness or absences, some public employers and employee organizations have negotiated special procedures just to handle time and attendance matters. These agreements typically provide for:

1. Procedures to resolve time and attendance problems outside the contract’s
disciplinary procedure.

2. Defining what constitutes time and attendance abuse.

3. Setting specific penalties, progressive in nature, for violations of the employer’s time and attendance rules. The penalties may range from a warning for the first offense considered under the procedure to suspensions or fines in the employee continues to violate the employer’s time and attendance rules. Typically the procedure authorizes termination if the employee refuses or is unable to comply with the attendance rules.

4. Appointing a permanent arbitrator or umpire to consider all time and attendance charges.

5. Waiving the right to appeal an arbitrator’s award.

6. Granting the arbitrator the authority to terminate the individual if the conditions set out in the agreement are satisfied.

Where the employee contends that his or her time and attendance problems are due to a disability within the meaning of the Americans With Disabilities Act or the Rehabilitation Act of 1973 or another federal or state law, it will be necessary to determine if, indeed, the individual is disabled and his or her attendance problems are caused by or result from the disability. If so, the employer is usually required to make a reasonable accommodation, which could consist of modifying the individual’s work schedule.

To illustrate a “Time and Attendance Disciplinary Procedure, the material below was adopted from an agreement between the Civil Service Employees Association [Institutional Services Unit] and the State of New York.

Provisions in a Typical Time and Attendance Grievance Article

1. All notices of discipline based solely on time and attendance, including tardiness, which have not been settled or otherwise resolved, shall be reviewed by a person designated as a time and attendance umpire.

2. The determination of the umpire shall be confined to the guilt or innocence of the grievant and the appropriateness of the penalty. The employee’s entire record of employment may be considered by the umpire with respect to the appropriateness of the penalty imposed. The umpire shall have the authority to resolve a claimed failure to follow the procedural provisions of this Article.

3. The decision and award of the umpire with respect to guilt or innocence and penalty, if any, shall be final and binding on the parties and not subject to appeal to any other forum except that, in the case of a decision and award which results in a penalty of dismissal from service, the decision and award may be reviewed in accordance with Article 75 of the Civil Practice Law and Rules. The umpire shall, upon a finding of guilt, have full authority to uphold the penalty proposed in the notice of discipline or to impose a lesser penalty within the minimum and maximum penalties set out in the schedule printed below. In appropriate cases, and in addition to the penalty imposed, the umpire may direct the grievant to attend counseling sessions or other appropriate programs jointly agreed upon by the parties.

4. The parties shall mutually select a panel of umpires, who shall serve for the term of his agreement. One or more umpires may be designated, by mutual agreement, as permanent umpires.” All fees and expenses of the umpire shall be divided equally between the parties.

5. Unless otherwise mutually agreed, permanent umpires shall be available to hold reviews at least once each month on a regularly scheduled basis. At such times, the permanent umpires shall review and finally determine all time and attendance disciplinary grievances which have been pending no less than ten (10) days prior to the permanent umpires’ scheduled appearance and are unresolved.

6. An employee is entitled to appear at the review before an umpire and is entitled to have a employee organization representative, who may or may not be an attorney, or, in the alternative, an attorney provided at his or her own expense present. Matters scheduled to be heard by the umpire may not be adjourned except at the discretion of the umpire for good cause shown. Any matters that are adjourned shall be rescheduled for the next regularly scheduled appearance of the umpire.

7. Where an employee is to be served a notice of discipline related solely to time and attendance and, within three years of such notice, has been found guilty of or settled [or a combination of both] two prior notices of discipline not solely related to time and attendance, the appointing authority may elect either to pursue such time and attendance notice before an umpire in accordance with the following Schedule26 or to serve a notice of discipline and proceed before a disciplinary arbitrator. This provision shall not apply to notices of discipline based solely on tardiness.

8. The penalty level for notices of discipline that contain charges of both tardiness and unauthorized absence shall be the appropriate level within the type of unauthorized absence charge.

1  §75 provides that the appointing authority or its representative ultimately determines guilt and the penalty to be imposed. Accordingly, only the employee would appeal an adverse decision. If, for example, a “Step 2” grievance decision granting the employee’s grievance is made by the supervisor but the appointing authority disagrees with the determination, it could not appeal the supervisor’s ruling. It is only in situations where a third party, i.e., an arbitrator or an independent hearing panel, makes the final disciplinary determination and imposes the penalty that it would be possible for the appointing authority to challenge the decision. In contrast, a determination of “not guilty” of one or more charges or a finding of “guilty” of one or more charges and the penalty imposed on an individual subject to disciplinary action pursuant to §3020-a of the Education Law may be appealed by either party or, in some instances, both the employer and the employee.

2  Courts have also vacated an arbitration award where it is determined that the award “violated strong public policy.” See Ford v CSEA, 94 AD2d 262, in which the court addresses the critical question of the power of an arbitrator to render a decision which impacts on or affects a public policy.

3  Kalyanaram v New York Inst. of Tech., 91 AD3d 532.

4  Functus officio means "having performed his office." Where, as in Kalyanaram, there has been a final judicial determination concerning the matter, the arbitrator no longer has jurisdiction.

5  See, also, McKinney's Unconsolidated Law §1041 which addressed the removal of police officers in the competitive class and Chapter 360 of the laws of 1911 addressing certain terms and conditions of employment affecting police officers.

6  Not selected for publication in the Official Reports.

7  In contrast, it could be argued that the imposition of any penalty given in response to misconduct requires a pre-imposition hearing in accordance with Section 75 and then only the Section 75 penalties may be imposed if the individual is found guilty of the charge[s]. The mischief implicit in the Seabrook rationale is that an appointing authority could by simply imposing a “non-Section 75” sanction on an individual escape having to provide the employee with administrative due process.

8  See, for example, Shafer v Board of Fire Commr., Selkirk Fire Dist., 107 AD3d 1229, Link to the decision

9  The Court of Appeals’ decision is posted on the Internet at:

10  The Appellate Division’s ruling is summarized on NYPPL at: Principe]

11  In Trupiano v Board of Educ. of E. Meadow Union Free School Dist., 89 AD3d 1030, the Appellate Division held that placing a counseling memo in the teacher’s personnel file as a §3020-a disciplinary penalty was within the arbitrator's power and did not violate public policy.

12  Further, an employee’s personnel record may be considered in determining an appropriate penalty, which record could include “counseling memoranda.” Dundee Central School District v Douglas Coleman, Supreme Court Yates County 2011 NYSlipOp 31144(U) [Not selected for publication in the Official Reports]

13  Under the First Amendment, public officers and employees typically enjoy "protected speech" in connection with their public comments concerning a State or municipal employer's activities that are a matter of public concern. In contrast, speech by a public officer or employee that merely addresses a personal concern such as the individual's personal unhappiness working for the public employer or for a particular supervisor, or related to the individuals' particular position, work assignments or working conditions, or the individual's personal disagreement concerning at do not rise to the level of speech concerning a "public interest," does not involve "protected speech" within the meaning of the First Amendment.

14   §18 of the Public Officers Law permits a public entity to adopt a local law, by-law, resolution, rule or regulation to indemnify and save harmless its employees from liability in the event there is a judgment against them resulting of an act or omission as a result of the individual acting within the scope of his or her public employment or duties.

15  Summaries of judicial and semi-judicial rulings are set out in the body of Challenging Adverse Personnel Decisions, the electronic book from which this excerpt was taken with permission of the authors. Go to for information concerning this electronic book.
16  In contrast, the employee’s personnel record may be considered in setting a disciplinary penalty [Bigelow v Trustees of the Village of Gouverneur, 63 NY2d 470].
17  Ebling v Town of Eden, 59 AD3d 978
18  Jeffrey v Walcott, 2013 NY Slip Op 51145(U), Supreme Court, New York County [Not selected for publication in the Official Reports]. The decision is posted on the Internet at:

19  Such limited immunity is usually referred to as “transactional immunity” or as “use immunity.”

20  Mountain, a police officer, refused to waive such immunity when called before a Grand Jury. He was dismissed following a Civil Service Section 75 disciplinary hearing for refusing to so waive immunity. The appointing authority relied on Article I Section 6 of the State Constitution which provides that a public officer if called to testify before a Grand Jury concerning the performance of official duties shall be removed from office if he or she refuses to sign a waiver of immunity. The Court concluded that demanding such a waiver violated Mountain's constitutional protection against self-incrimination. While a public officer may be removed for failing to answer questions relevant to the performance of official duties, he or she may not be dismissed for failing to waive immunity. It appears that had Mountain simply been asked relevant questions concerning his performance of his official duties, without any demand for a waiver of immunity, his dismissal for refusing to answer such questions would have been lawful.

21  20 In a disciplinary action, termination was recommended after employee refused to answer job related questions after being granted “use immunity” [New York City Department of Corrections v Lasonde, OATH Index #2526/11].

22  Section 76.1 of the Civil Service Law, however, allows an officer or employee to appeal the penalty of a reprimand if he or she was suspended without pay prior to the disciplinary hearing if the penalty of a reprimand is “unaccompanied by a remittance of such officer’s or employee’s prehearing suspension without pay."

23  22 Section 75 provides for a “Fine not to exceed $100.” There is no such limitiation with respect to a fine set by an arbitrator unless a collective bargaining agreement provides otherwise.

24  23 Link to the decision

25  Such a “hold” will also result in cases where the individual is appointed to the higher-grade
position provisionally or appointed as a “temporary employee” from an appropriate eligible list.

26  Typically such a schedule provides for set penalties to be imposed based on the nature and frequency of the offense[s].

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