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March 3, 2010

Hearing officer declines to recommend a disciplinary penalty after charged individual resigns from the position

Hearing officer declines to recommend a disciplinary penalty after charged individual resigns from the position
New York City Fire Department v Terrance Hardy, OATH Index #1430/10

The New York City Fire Department alleged that Terrance Hardy, an emergency medical technician (EMT), had sexually abused a patient.

Although Hardy had already resigned, OATH Administrative Law Judge John Spooner heard the case as the charges had been served upon the EMT prior to his resignation and found that there was sufficient evidence to support the charges.

Hardy's attorney's argued that Hardy's resignation concluded the matter and charges dismissed.

In contrast, the Fire Department’s attorney insisted that the agency was entitled to seek an adjudication on the charges, despite the resignation, in order to make a record of Hardy’s actions.

The ALJ said that state court cases and OATH decisions supported the public employer’s right to an adjudication of disciplinary charges despite an employee’s resignation, "where the charges were served on the employee prior to the resignation."*

The ALJ, however, said that he “could not recommend a penalty due” as Hardy had already resigned from his position.

* The serving of the charges prior to his or her resignation may not be critical with respect to proceeding with the disciplinary action depending on the controlling rule or regulation. For example, 4 NYCRR 5.3(b) provides that a State appointing authority may elect to disregard an individual's resignation submitted "when charges of incompetency or misconduct have been or are about to be filed against an employee [emphasis supplied].

NYPPL Comments: The Rules of the State Civil Service Commission [4 NYCRR 5.3(b)], which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, provides:, in pertinent part, that when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation. Many local civil service commissions and personnel officers have adopted a similar rule.

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