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August 09, 2010

Determining the disciplinary penalty to be imposed following conviction of a crime underlying the disciplinary action taken against the employee

Determining the disciplinary penalty to be imposed following conviction of a crime underlying the disciplinary action taken against the employee
Garippa v New York City Bd. of Ed., NYS Supreme Court, [Not selected for publication in the Official Reports]

A Section 3020-a arbitrator found Michael Garippa, a New York City school teacher, guilty of conduct unbecoming the profession and authorized his termination.

Garippa, a tenured English teacher at Franklin D. Roosevelt High School in Brooklyn, was arrested by federal authorities and charged with conspiracy to distribute steroids.

Garippa subsequently pleaded guilty to one count of Conspiracy to Distribute a Controlled Substance and was sentenced to serve three years of probation and six months of home confinement; to perform 200 hours of community service by coaching children’s sports teams; and to continue drug counseling.

Section 3020-a Hearing Officer Jacquelin F. Drucker concluded that “... the question before this hearing officer relates not to guilt or innocence but to the proper level of discipline for the conduct at issue.”*

Drucker decided that Board was authorized to remove Garippa as a teacher because of two factors:

1. Newspaper reports identifying Garippa, his occupation and his employer, allegedly caused the board to suffer “unfortunate, unpleasant publicity”; and

2. The fact that “Respondent’s initial contact with the purchaser was made at a school function.”

Garippa appealed to the state Supreme Court and Justice H. Freedman granted Garippa’s petition and vacated the hearing officer’s decision. He then remanded the case to the Board for reconsideration.

Justice Freedman observed that the hearing officer did not suggest that Garippa could be trusted to work with children. The offense occurred off-duty and off-premises. The Court concluded that the hearing officer’s decision “was based on an assumption that Garippa’s guilty plea automatically constituted guilt of conduct unbecoming the profession,” rather than on an express finding to that effect.

This was improper, Justice Freedman said. Section 3020-a guarantees that the employee shall have full and fair disclosure of the nature of the case and evidence against him.

According to Justice Freedman, Garippa was neither told beforehand that the articles or the “bad publicity” would be the basis for either a finding of guilt or a determination of penalty nor was he ever shown copies of the articles, which were the subject of his cross-examination.

Since the newspaper articles were not submitted into evidence, Justice Freedman said that they were not part of the reviewable record before the court. In addition, Justice Freedman pointed out that “it is improper for an administrative agency [or an arbitrator] to base a decision of an adjudicatory nature upon evidence outside of the record.”

The court said the school board raised a legitimate issue regarding publicity because it has a right to protect the reputation of the institution. But since Garippa was denied an opportunity to address and rebut this allegation, the arbitrator’s determination was made without prior notice and lacked evidentiary basis.

The lesson here appears to be that an appointing authority cannot assume that a conviction of a crime will be sufficient to find an individual guilty of embarrassing it and justify its imposition of a penalty. Rather, the appointing authority must prove each and every element of it allegations, including those factors underlying the reason for bringing the disciplinary action in the first instance.

* N.B. In Kelly v. Levin, 440 NY2d 424, the Court of Appeals ruled that is a reversable error for an administrative disciplinary body to acquit an employee in a disciplinary action if the individual had earlier been found guilty of a criminal act involving the same allegations.

The full opinion is available at:
http://nypublicpersonnellawarchives.blogspot.com/
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