September 20, 2010

Incompetence and misconduct in the context of a disciplinary action

Incompetence and misconduct in the context of a disciplinary action
Brey v Jefferson-Youngsville CSD, App. Div., 245 AD2d 613

Incompetence and misconduct have different meanings in disciplinary actions.

Incompetence basically refers to a lack of the ability to do the work properly; misconduct frequently involves the employee's failure to comply with instructions or ignoring appropriate procedures.

Elvira Brey, business manager for the Jefferson-Youngsville school district in Sullivan County, was charged with incompetence because she failed meet deadlines for filing various forms and applications with the State Department of Education and neglected to make timely interest payments on a series of the School District's bonds.

The charges involving misconduct arose for her alleged "failure to comply with [the Superintendent's] repeated written directives' to complete the forms required to be filed with the Education Department. The disciplinary action was brought pursuant to Section 75 of the Civil Service Law.

Found guilty of all charges and specifications, Brey was terminated from her position. She challenged the Board's action, contending that:

(1) the findings of the hearing officer were not supported by substantial evidence and

(2) the penalty imposed was "grossly disproportionate ... because she had not intentionally failed to timely file the reports and make the interest payments."

The Appellate Division was not impressed by these representations. It concluded that the Board's determination was based on the testimony of School District witnesses, Brey's admissions, and documentary evidence "amply supported by proof in the record,” which satisfied the substantial evidence test.

The Court dismissed Brey's appeal, indicating that the penalty imposed met the Pell test in that it is "not so disproportionate to the offenses as to be shocking to one's sense of fairness."

Another factor in this case was Brey's claim that she was the victim of retaliation within the meaning of Section 75-b of the Civil Service Law, the so-called "Whistle Blower" statute. After commenting that Brey "did not sufficiently establish her defense of retaliatory discharge," the Court said that "a defense under Section 75-b cannot be sustained when a public employer has a separate and independent basis for the action taken" against the individual.

The lesson here is that even in cases where the individual is able to demonstrate he or she has suffered retaliation in violation of Section 75-b, such a defense will not be sufficient to prevent an employer from disciplining an employee merely because the employee's actions are protected by Section 75-b if the employer has a separate and different basis for the disciplinary action.

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