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June 30, 2010

Conducting an administrative hearing

Conducting an administrative hearing
Flood v NYSERS, App. Div., First Dept., 279 A.D.2d 304

Clearly an individual may not be found guilty of disciplinary charges not alleged in the notice of discipline served on the employee. Similarly, a hearing officer in an administrative hearing may not rely on evidence in the record in making his or her determination if the other party was not permitted to challenge or rebut such evidence.

Theresa Flood, a teacher's assistant, was injured aboard a bus during a field trip in November 1990. The New York State Employee's Retirement System denied her application for accidental disability retirement benefits on the grounds that she had not been "incapacitated ... as the natural and proximate result of an accident sustained in ... service". Flood appealed and the issues were framed by the initial Hearing Officer designated to consider the matter as follows:

1. Was there an accident?

2. Is the applicant permanentlyincapacitated? and

3. If so, is the incapacity a proximate result ofthe accident?

The appeal was eventually considered by a different Hearing Officer. Flood's attorney framed the issue before the new hearing officer as simply whether Flood's disability was "the natural and proximate result of an accident sustained in . . . service".

The new hearing officer agreed, cutting off any questioning on "incapacity" on the grounds that there was no "notice to the applicant on that point." He said "causation" was the sole issue to be resolved.

At the conclusion of the hearing the second hearing officer, after acknowledging that the hearings had been limited to the issue of causation, said that "all three questions (accident, incapacity and causation) were once again at issue." His decision, based on the Retirement System's expert's testimony: Flood had failed to establish a "permanent incapacity." That being the case, he denied her appeal without considering the issue of proximate cause.

The Appellate Division vacated the hearing officer's determination, pointing out that Flood "never had an opportunity to pursue or challenge [NYSERS's] testimonial evidence because the issue at the hearing, as framed in the notice, was limited to the question of causation."

The Appellate Division said that "[i]f the issues are to be expanded to cover accident and incapacity as well, then the interests of fairness dictate that [Flood] should have an opportunity to cross-examine the witness and present her own evidence in that respect."

The matter was returned to the Retirement System for a new hearing.

NEW YORK PUBLIC PERSONNEL LAW ELECTRONIC HANDBOOKS

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

A Reasonable Disciplinary Penalty Under the Circumstances - Determining an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

Disability Benefits for fire, police and other public sector personnel - Addresses retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information click on http://booklocker.com/books/3916.html

The Layoff, Preferred List and Reinstatement Manual -Focusing on relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

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Text prepared by Harvey Randall except as otherwise noted. Randall, former Principal Attorney, New York State Department of Civil Service, also served as Director of Personnel for the State University System; as Director of Research, Governor’s Office of Employee Relations; and as Staff Judge Advocate General, New York Guard. He has an MPA from the Maxwell School, Syracuse University and a J.D. from Albany Law School.