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June 17, 2010

Using personnel records in determining an appropriate disciplinary penalty

Using personnel records in determining an appropriate disciplinary penalty
Massaria v Betschen, 290 A.D.2d 602

In the Massaria case the Appellate Division was asked to determine if was appropriate for the Section 75 hearing officer to consider a disciplinary settlement agreement entered into by an employee and his or her employer to resolve an earlier disciplinary action involving the employee when determining the penalty to be imposed on the employee after he or she was found guilty of misconduct and incompetence in a second, subsequent, disciplinary action.

New Paltz Superintendent of Schools Frederick Betschen filed Section 75 disciplinary charges Kenneth Massaria alleging that he was guilty of misconduct and incompetence based on Massaria's failing to drop a third grade student off at the proper bus stop on two occasions and an incident, captured on videotape, in which Massaria drove his bus in the middle of the road as he approached waiting students at a bus stop.

The hearing officer found Massaria guilty of all of these charges and recommended that he be dismissed from his employment. The School Board adopted the hearing officer's findings and recommendation and terminated Massaria from his position. Massaria appealed, challenging the Board's action.

The Appellate Division dismissed Massaria's appeal, ruling that the testimony and evidence presented at the hearing supplied the substantial evidence required to affirm the school district's action.

One the major issues considered by the court involved the "penalty phase" of the disciplinary hearing. At this point in the proceeding the School District introduced Massaria's prior disciplinary record for the hearing officer's to consider in determining the appropriate penalty to be imposed on Massaria.

This record consisted of a "stipulation of settlement" in lieu of disciplinary charges. In executing this stipulation, Massaria admitted to four acts of misconduct and incompetence involving improperly operating his school bus and "his departing from a mandatory meeting without supervisory permission."

Massaria conceded that the stipulation also provided that it constituted Civil Service Law Section 75 discipline, that it could be used in any future disciplinary proceeding against him, and that if he engaged in similar misconduct in the future, the District would seek to dismiss him from his position.

Addressing the hearing officer's consideration of the stipulation documenting Massaria's prior admission of misconduct and incompetence during the "penalty phase" of the disciplinary action, the Appellate Division said that here the hearing officer's consideration of Massaria's employment record met the test set out in Bigelow v Board of Trustees of the Incorporated Village of Gouverneur, 63 NY2d 470. In particular, the court found that:

1. The hearing officer considered the stipulation only after Massaria was found guilty of the charges of misconduct and incompetence filed against him;

2. Massaria "was given ample notice" that the prior stipulated incidents would be submit­ted to the hearing officer to consider in determining the penalty to be imposed; and

3. Massaria was given an opportunity to be heard regarding those prior incidents.

Significantly, the Appellate Division said that the "prior infractions need not have been included in the statement of charges."Ruling that Massaria's employment history, including the settlement agreement flowing from the prior disciplinary action taken against him, "was properly taken into consideration in the determination of an appropriate sanction for the proven present acts of misconduct and incompetence," the Appellate Division dismissed Massaria's appeal.

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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